be, if somebody says to me, ,'i have two coins here, two ordinary United States coins, and the value of them put together is 8 cents,' no mathematics in the world can solve this problem because you just can't find two coins that added together to that amount.
'If they had said 6 cents, this would have been simple -- it would have been a penny and a nickel; but if you say, 'I have two coins which together add up to 8 cents,' there is no solution to this problem.
'The fact is that for the fire to have been north of the Penrose Bridge, and to ask me to assume that there is 1 1/2 inches of gasoline or 1.38 inches of gasoline on the water, the spreading rate of gasoline is so extremely high that the source of the gasoline would have had to be inside the fire. It could not -- after all, if I put out this many gallons of gasoline and this many cubic feet of gasoline in the water, it will spread so rapidly that it couldn't stay at 1.38 inches for the duration of a 10-minute fire. Even during the time of the fire itself it would have been spreading so fast that it would have been to both banks, that much gasoline.
'So I am led to conclude that although I cannot determine from the data that I have been given what the material is, I can say positively that it was something heavier, more viscous than gasoline.
'I can say furthermore that the material that was burning was light hydrocarbon. I cannot say what was left on the surface of the river afterwards. There are many petroleum materials which will burn quite fiercely and leave a residue. Those materials that will burn fiercely and leave a residue that is comparatively nonvolatile are clearly substantially more viscous than gasoline; so that the conditions that I have been given force me to conclude that it must have been substantially more viscous than gasoline.
'I can go only so far.' (NT 68-71)
We are forced to conclude from the above expert testimony that it was based on facts which were not supported by other evidence, both as to the time that the hydrocarbons, gasoline, or a mixture of both went into the river, assuming they did, and what in fact was burning on the river or the tug. The expert is saying in effect that since there was a fire on the river, an inflammable substance was floating on the water and, therefore, since the Gulf docks were within the range that the liquid floated on the river, determined by tides and assumed time, it must have come from the Gulf docks. This gives the broadest interpretation to the above testimony.
But, as stated previously, in the absence of any factual evidence of spillage within the limited period involved, or at any other time, in an area where admittedly there are numerous refineries and other gas and oil installations, the expert's opinion as to the possible cause of the fire is pure speculation.
'Possibility' testimony, in some situations may be admissible to prove the ultimate fact. (Wigmore on Evidence, 3rd Ed., Vol. VII, § 1976.) However, the hypothetical question must be based upon facts proven, or reasonably acceptable to the jury as proven. (Wigmore on Evidence, 3rd Ed., Vol. II, § 682.)
This case is one of 'circumstantial evidence.' Both sides have cited in support of their position Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959), which we have examined most carefully. We find nothing in that case that abandons the basis principle that the burden of proof is on the plaintiff or that the underlying determinative fact must be established. Granting, in other words, that inference may be built on inference ad infinitum, before you get into that field of conjecture, there must be a foundation of an established proven fact.
Here we do not have that, since the conclusion of Dr. Hinckley must relate back not only to 'spillage' but to what was spilled, when and where and in addition, by whose negligence. Johnston v. Dick, 401 Pa. 637, 165 A.2d 634 (1960); and Rennekamp v. Blair, 375 Pa. 620, 101 A.2d 669 (1954).
Accordingly, judgment n.o.v. will be entered in favor of the defendant.
Alternative Motion for a New Trial.
In the event that it is determined that we err in determining that the motion for a directed verdict should have been granted and now conclude that judgment n.o.v. is the correct disposition of this matter, we turn to the alternative motion for a new trial.
At the beginning of this opinion we referred to the lengthy and protracted prior litigation collateral hereto. Notwithstanding repetitive rulings on the question of 'surprise' and our granting plaintiff every possible opportunity to refresh the recollection of the witnesses, counsel persisted over and over in the presence of the jury in stating that he was being hampered or foreclosed in the presentation of his case because (1) his witnesses were hostile or (2) he had been unable to obtain record information from defendants. Both charges were entirely improper, contrary to the facts and most prejudicial to the defendant. We mention a few of the numerous other factors in the trial which moves us without reservation to determine that the interests of justice require a new trial, such as continuous arguing with the Court on rulings which had been made and disposed of (NT 158, 160-162) and continuous attempts to deliberately create error. Practically the first 171 pages of testimony are replete with this type of trial practice. Further examples of arguing with the Court and witnesses may be found from pp. 794 to 810 of the notes of testimony. It would serve no useful purpose to further elaborate on this feature of the case. The record clearly reveals that in retrospect we should have withdrawn a juror on the second day; that the jury could not give the case the attention which it deserved due to the above and other facts revealed in the record.
Finally, in the opinion of the Court, the verdict of the jury was contrary to the weight of the evidence and had they not been confused or affected by the manner in which the case was tried, their verdict, we believe, would have been in favor of the defendant.
Rule 59 of the Federal Rules of Civil Procedure gives the trial judge the power to grant a new trial to prevent what he considers to be a miscarriage of justice. Fed.Rules of Civ.Proc.; 28 U.S.C.A.; Nuttall v. Reading Company, 3 Cir., 235 F.2d 546 (1956); 3 Barron & Holtzoff, Fed.Prac. & Proc., § 1302 (Rules Ed. 1950).
In conformity with the above rule and for additional reasons herein set forth, we will order, in the alternative, a new trial.
And now, to wit, this 14th day of December, 1961, It is hereby ordered that:
1. The defendant's motion for judgment n.o.v. is granted;
2. The defendant's motion for a new trial is Granted in the event that the granting of judgment n.o.v. is reversed on appeal; and
3. The Clerk enter judgment in favor of the defendant and against the plaintiffs on the issue of liability.