Van Dusen, Gibbons and James Rosen, Circuit Judges. Van Dusen, Circuit Judge (dissenting).
In this diversity personal injury case appellant, the plaintiff in the district court, appeals from an order granting a motion for a directed verdict renewed at the end of the entire trial on the issue of liability. Fed.R.Civ.P. 50. The plaintiff was proceeding on a theory of strict liability under the Restatement (Second) Torts § 402A (1965) adopted by Pennsylvania as its common law. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). The injuries occurred when appellant, a journeyman lineman employed by the Pennsylvania Electric Company, was, while working on top of a pole, thrown to the ground when the pole broke. He sued Kearney-National Corporation, Inc., the manufacturer of an allegedly defective fitting, and it joined Pennsylvania Electric Company as a third party defendant.
Appellant's theory of the case was that the pole broke because the fitting which was manufactured by Kearney and by which a guy wire was attached to the pole, gave way under a stress which was within anticipated normal range. The fitting in question is a T shaped cast iron device. In each cross bar of the T there is a hole through which bolts pass to fasten the fitting to a wooden pole. In the upright of the T there is a larger hole through which a bolt passes to connect a cable. The claimed defect is a crack in one arm of the T.
The pole was at a point where electric transmission lines made an acute angle turn. Because of the acute angle turn the electric transmission lines placed a strain on the pole in the direction of the internal dimension of the angle. To counteract that strain four guy wires were run from the upper part of the pole to the ground in directions opposite to the direction of strain of the electric transmission lines. The guy wires were fastened to the pole by means of T fittings manufactured by Kearney. At the time of the accident three of the guy wires had become disconnected and the pole was leaning slightly. The crew of which appellant was a part was engaged in replacing these three guy wires. There was evidence that the appellant felt the pole move slightly before it broke, and that eye witnesses heard a snap and observed a sagging of the lines before the pole actually broke. This evidence, if believed, would have warranted a finding that the T fitting broke before the pole broke, since it is undisputed that after the accident the T fitting was in fact broken into two pieces through one arm of the T. One piece, an arm of the T fitting, was found still bolted to a segment of the broken pole. (Exhibit P. 7). The second piece consisting of the other arm and the T upright, was found still fastened to the cable and bolted to another segment of the pole. (Exhibit P. 10). The break between the two pole segments in question occurred roughly at the point where the bolt fastening the second piece of the T fitting passed through the pole.*fn1 The T fitting in normal position rested with the two arms flush with the pole and in vertical alignment with it. After the accident the piece of fitting consisting of an arm only was still in place flush with the pole. (Exhibit P. 7). The piece consisting of the other arm and the T upright was no longer flush with the pole but had been bent outward from flush alignment with the pole in the direction from which the strain of the cable would have been applied.
There is evidence that the T fitting was five to ten years old at the time of the accident, and that such fittings were expected to last for the life of the line, about 40 years. (140-41a).
The witness Brunot described the condition of the T fitting immediately after the accident.
"Q. What kind of condition was it in?
A. It was in two pieces -- two separate pieces as I recall. As it comes to mind very strongly, at one end of it there was rust. There was a clean part where it broke and the rest of it was, there was rust like it had been cracked. That's on the one side that broke.
Mr. Weis (attorney for defendant Kearney): I move to strike that opinion for lack of qualification of Mr. Brunot.
The Court: I think so. We're not to that point yet. There were two pieces and he described what he saw.
Q. Did you say it was rusty?
A. Yes, there were two pieces and this stands very vividly in my mind because we were concerned about it. It did show an indication of rust and the rest of it was a clean break, in my opinion." (97a).
The witness, who was a member of the same lineman crew as the appellant, was then shown Exhibit P. 1, a photograph of the two segments of the broken T fitting, and was asked to point out to the jury the rust that he saw. The attorney for the defendant objected that Brunot had not been listed as an expert witness and could not testify that he observed rust. The court so ruled. An examination of Exhibits P. 1, P. 7 and P. 10 discloses that through the cross section of the arm of the T fitting at the point where it broke there is discoloration, which appears to be oxidation, on both parts, except for approximately a quarter inch of the cross section which originally rested nearest to the pole. That quarter ...