Seitz, Chief Judge, and Adams, and Hunter, Circuit Judges.
Plaintiff presents three issues for resolution: First, whether it was error for the trial judge to exclude certain evidence as hearsay not within the res gestae exception to the hearsay rule; second, whether the trial judge, in his charge to the jury, overstepped the bounds of permissible comment; finally, whether it was proper for the trial judge to submit certain interrogatories to the jury, thereby withdrawing from them other theories of recovery.
Plaintiff, who had considerable experience with winches and cranes, was operating a crane aboard the defendant's ship, the S. S. Calmar, when he was injured by an unfortunate accident. The crane operated by plaintiff was equipped with two whips or blocks.*fn1 Each was attached to separate drums for reeling in or paying out the cable to which the load was attached. One of the blocks, the two-part block, had a safe working load of 27,300 pounds; the other, the five-part block, had a safety limit of 80,000 pounds.
At the time of the accident, the crane was being used to transfer equipment from the pier to the hold of the ship to facilitate the handling of cargo. The deck crew had been attaching light loads to the two-part block, and such loads were safely transferred to the ship. Then the deck crew attached a 31,560 pound chisel, or fork lift truck, to the two-part block. Plaintiff, according to his testimony, raised this load to a proper height and in preparation for transferring the chisel to the ship, disengaged the clutch and activated the brake in order to hold the load at that level. However, the chisel fell, breaking the surface of the pier and fracturing underlying pipes, thus releasing ammonia gas that quickly enveloped the ship. After the chisel fell, the line attached to it remained taut, and was not strewn or "spagettied" on the deck. A short time after the fall of the chisel, someone used the crane and two-part block to move the chisel so that firemen could repair the ammonia pipes. An officer of the ship, Mr. Zidik, testified that the brakes were tested after the accident and were found to be functional.
We treat the second issue described above first, since its resolution is determinative. Plaintiff contends that the latter portion of the trial judge's charge to the jury, reproduced in the margin,*fn2 overstepped the bounds of permissible comment. In particular, he objects to the treatment of plaintiff's assertion of negligence as "mere hypothesis" although the court assumed "the role of an apologist for the defendant, and then, as the last parting shot, * * * the Court, by provocative phrase designed to appeal to the emotions of jurors" unfairly deprived "the plaintiff of a balanced and dispassionate determination." Plaintiff also objects to the fact that nothing was said with regard to his circumstantial evidence tending to show that the brakes on the drum failed.
A federal trial judge is not a mere arbitrator who rules upon objections and instructs the jury. Cromling v. Pittsburgh & L. E. R. Co., 327 F.2d 142 (3d Cir. 1963). He may "express his views respecting the probative value of the evidence but if he does so he must make it clear to the jury that it is its sole right to determine the weight and credibility of the evidence." Sleek v. J. C. Penney Co., 324 F.2d 467, 478 (3d Cir. 1963). However, in commenting on the evidence, the trial judge must be fair and impartial. Cromling, supra, 327 F.2d at 152; Sleek, supra, 324 F.2d at 478-479.
Although the district court properly instructed the jury with regard to its role in the fact-finding process,*fn3 we hold that on the facts of this case a new trial is required because the following sentences erroneously analyzed, to the plaintiff's prejudice, a crucial issue of fact to be resolved by the jury:
"In order to separate the hypothesis urged upon you by the plaintiff in this case, it seems to me you have to come to the conclusion that Mr. Zidik lied to you. I don't see how you can arrive at that conclusion any other way."
The clear impact of these statements was that if the jury were to find that Zidik had told the truth, the only rational conclusion which could be drawn from the evidence was that the brakes had not failed. However, the jury could have believed Zidik and still found for the plaintiff.
But for the above quoted sentences, the jury could have concluded, assuming Zidik has testified truthfully, that the evidence showed that the fork-lift fell and that the fall was caused by a slippage of the brakes because the line remained taut. The jury could have further concluded that the tests which were later performed demonstrated only that the brakes would hold a load of 30,000 pounds, but that the brake failure might still have occurred under a load of 31,560 pounds, since tests subjecting the brakes to that load had not been performed. It is only because ...