Full opinion text
GOURLEY, District Judge. History of Litigation , This is a retrial of an action for wrongful death. Plaintiff sues as Administratrix of the Estate of her husband, Patrick J. Moran. The defendants are PittsburghDes Moines Steel Company, a partnership, John E. Jackson, individually, a member of the partnership, and Pittsburgh-Des Moines Company, a corporation. The subject matter of the suit is the recovery of damages occasioned to the plaintiff by the death of her husband in a disaster which took place in the city of Cleveland, state of Ohio, on October 20, 1944. The action is a most involved, complicated and intricate proceeding. The trial commenced on November 8, 1948 and terminated on January 5, 1949. The record is voluminous and comprises seven different volumes. At the first trial the Court granted the defendants’ motion for involuntary non-suit and dismissed the action against all ’ the defendants.- The plaintiff appealed, the Circuit Court reversed and held that sufficient evidence existed in the record to require the consideration of the jury. Moran v. Pittsburgh-Des Moines Steel Co., et al., 3 Cir., 166 F.2d 908. Substantially the same evidence was presented by the plaintiff that was introduced at the first trial. In addition thereto, direct testimony was offered that the catastrophe or the accident was caused through negligence of the defendants. In other Words, in the first trial the basis upon which the plaintiff premised her right to recover related to testimony, direct or circumstantial, from which inferences could be drawn that the defendants were negligent. In the second trial, in addition to the proof just referred to, direct testimony was offered that the accident or catastrophe was caused by the negligence of the defendants. The jury returned a verdict in favor of all the defendants, and the matter now before the Court relates to a motion for a new trial filed on behalf of the-plaintiff. History of Instrumentality Which Caused the Disaster. The tragic accident in which Patrick J. Moran lost his life was a poignant episode in the development of the bold and ingenious engineering for which Americans have become famous. The East Ohio Gas Company is an operating public utility engaged in the selling of natural gas for industrial and consumers’ use in the city of Cleveland, state of Ohio. A problem arose in connection with meeting the demands of the company for making available an adequate supply of natural gas, and the immediate problem was the storage thereof. A plan was worked out whereby natural gas at a temperature of 250° below zero Fahrenheit becomes liquid, and the condensation in volume was so great that 600 cubic feet of the natural gas became one (1) cubic foot of the liquid gas. Arrangements were made whereby three spherical tanks were constructed, commencing in the year 1940, sufficient to hold fifty million cubic feet of the natural gas. The success of this storage venture increased the demand for gas and resulted in East Ohio Gas Company in the year 1942 to look for a further expansion of storage facilities. The new tank to be built was to have storage capacity of two of the earlier ones or sufficient to hold 100 million cubic feet of natural gas. History of Construction of No. 4 Cylindrical Tank. The Pittsburgh-Des Moines Company was engaged in the fabrication and design of tanks and materials. The PittsburghDes Moines Steel Company secured business for the corporation and engaged in the construction of tanks and different instrumentalities that were designed and fabricated by the Pittsburgh-Des Moines Company. The No. 4 cylindrical tank was constructed through contractual arrangements between East Ohio Gas Company and Gas Machinery Company. The Gas Machinery Company let a sub-contract to the Pittsburgh-Des Moines Steel Company for the design, construction and fabrication of the No. 4 tank. Although the contract was let by Gas Machinery Company with the defendant partnership, the defendant corporation and the individual defendant, John E. Jackson, a member of said partnership, were active and took part in one way or the other in the matters relating to the design, fabrication and construction of said tank. East Ohio Gas Company executed the formal contracts for the construction of No. 4 tank with Gas Machinery Company since said company had certain patent rights which had to be recognized by East Ohio. Gas Machinery in turn sub-contracted with Pittsburgh-Des Moines Steel Company, the partnership defendant, for the actual design, fabrication and construction of the tank. Due to the overlapping of the many business relations between the corporate defendant, the partnership defendant and the individual defendant, the Court left for-the determination of the jury whether or not one or all of the defendants were-involved in the construction of the No. 4 cylindrical tank, and if one or all of the defendants were responsible for the catastrophe which caused the death of Patrick J. Moran. That is, which one or all of the defendants, severally or jointly, engaged in the design, fabrication and construction of the No. 4 cylindrical tank, and whether or not the affiairs of one or all of the defendants were so interwoven and intermingled that the acts of one became the acts of the others. Tank No. 4 was completed in May of 1943, and after the tank was filled, the defendants were paid and left the job. All went well for nearly thirteen months when on the afternoon of October 20, 1944, No. 4 tank ruptured and gas escaped in great quantities. There was a fire, an explosion and a frightful disaster in which lives were lost and property destroyed. One of the lives was that of the plaintiff’s decedent, who worked with the East Ohio Gas Company but not in the operation connected with the liquefaction and storage of gas. Applicable Law. Federal jurisdiction is based solely on diversity of citizenship, and the familiar situation exists in which the federal court applies state law and takes its law from the authorized decisions of the state where the action arose. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. In diversity of citizenship cases, the federal courts, when deciding questions of conflict of laws, must follow the rules prevailing in the states in which they sit. The conflict of laws rule to be applied must, therefore, be determined by the law of Pennsylvania. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Alcaro et al. v. Jean Jordeau, Inc., 3 Cir., 138 F.2d 767; Smyth Sales v. Petroleum Heat & Power Co., 3 Cir., 128 F.2d 697; Boyle et ux. v. Ward, 3 Cir., 125 F.2d 674; Anthony P. Miller, Inc., v. Needham et al., 3 Cir., 122 F.2d 710. In view of the foregoing, the question arises — What is the Pennsylvania rule of conflict of laws relating to recovery upon a tort claim where the facts have occurred outside of Pennsylvania? The Pennsylvania rule is that the liability of the defendant is to be based on the place of the tort or the wrong. Boyle et ux. v. Ward, Supra. For purposes of diversity jurisdiction, a federal court is in effect only another court of the state. The questions which, therefore, arise as to the plaintiff meeting the burden of proof required to support a right to recover was governed by the law of Ohio. Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284; Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196; Woods v. Interstate Realty Co., 69 S.Ct. 1235. The substantive rights of the parties are determined by the law of Ohio where the tank was built and the catastrophe occurred, since under the law of conflicts the Ohio rule controls. Boyle v. Ward, supra; Aleare v. Jean Jordeau, Inc., supra; Smyth Sales v. Patroleum Heat & Power Co., supra. Since the catastrophe occurred in Ohio, the question is one of tort law, and under the law of Pennsylvania it is necessary to look to the Ohio authorities to determine the law. Moran v. Pittsburgh-Des Moines Steel Co., et al., supra. The Ohio courts have ruled that a manufacturer is responsible not merely to the consumer of the article, but also to a person in the vicinity of its use who is injured by the manufacturer’s lack of due care. White Sewing Machine Co. v. Feisel, 28 Ohio App. 152, 162 N.E. 633; Moran v. Pittsburgh-Des Moines Steel Co., et al., supra; Gilbride v. Laffel Co., Ohio App., 47 N.E.2d 1015. The appellate courts in Ohio have not definitely ruled on the question as to whether or not the principle of liability just enunciated would have application to a chattel attached to the real estate, and which is out of control of the party who constructed or attached the chattel. However, the Circuit Court held that if the Ohio courts were confronted with the problem, they would in accordance with the development of the law shown in its previous decisions, extend the liability of the manufacturer to negligence involved in building the structure even though that structure was affixed to another’s land. Moran v. Pittsburgh-Des Moines Steel Co., et al., supra. Many questions arose in the trial of the case as to whether the admissibility of evidence was to be governed by the law of Ohio, Pennsylvania, or the Federal Rules. Since the admissibility of evidence, in the absence of a statutory requirement or restriction, and none existed in this action, is a matter of procedure rather than substance, the Court applied Rule 43(a) of the Federal Rules of Civil Procedure, 28 U.S. C.A. “Rule 43. Evidence “(a) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be determined in like manner.” As a result testimony was admitted which was proper under the rules of evidence heretofore applied in the courts of the United States, or which was admissible under the rules applied in the courts of Pennsylvania. The plaintiff’s motion for a new trial is premised generally under five different classifications: I. The refusal of the Court to submit the issue of negligence in designing and building Tank No. 4 in a cylindrical form. II. Rulings of the Court in reference to the testimony of James O. Jackson. III. Error in exclusion of evidence offered by plaintiff. IV. Error in admission of evidence offered by defendant. V. Error in the instructions to the jury. In order to thoroughly and intelligently consider the various questions which have been presented by the plaintiff in the motion for new trial, each general topic and sub-classification which is set forth will be evaluated separately. I. The Refusal of the Court to Submit the Issue of Negligence in Designing and Building Tank No. 4 in a Cylindrical Form. Said claim of negligence is set forth in the second amended complaint. The plaintiff alleged that the defendants were guilty of recklessness and negligence in the following respects, to wit: “(a) In designing and constructing said tanks, and particularly the cylindrical tank without adequate outside dykes for each tank so as to retain said liquid gas in the event of a rupture of the walls of any tank. “(b) In providing and using steel of such defective composition and improper treatment that it was of insufficient strength and toughness to resist the strains created in said tank when filled with liquid natural gas, and was likely to be brittle and to rupture-upon slight impact or strain, and particularly in using steel which was defective and which failed to conform to the specifications required in the following respects: “(aa) It had a ‘Charpy Impact Test Strength’ of such a low character that it was brittle at the temperatures of liquid natural gas and wholly unfit for use in such a tank; and showed an actual ‘Charpy Impact Test Strength’ of about 2 or 3 foot lbs. whereas the specifications required a test strength of not less than 10 foot lbs; and said specifications should in fact have required a test strength of not less than 15 foot lbs. “(bb) It was of an excessively coarse ‘grain.’ “(cc) It was improperly ‘banded’ so that it was likely to fracture and break in one plane. “(dd) It contained an excessive amount of impurities so that said steel was ‘dirty’ within the meaning of that expression in the manufacture of steel. “(ee) It contained more carbon than was proper and too little nickel, in the alloy. “(if) It had not been properly ‘normalized.’ “(gg) It had not been adequately or accurately tested as to impact strength before being placed in said tank. “(c) In designing and building said tanks at a place where there was almost continuous vibration and ground termors, such that the rock wool used as insulation for the cylindrical tank was likely to disintegrate and collapse and to lose a substantial part of its insulating effect; and so that the steel of the tank was likely to become fatigued and be rendered increasingly brittle and subject to fracture. “(d) In failing to reduce the strains and stresses which had been created in said cylindrical tank in the process of erecting it and welding its constituent parts, by an appropriate heat treatment, peening or otherwise. “(e) In so designing and constructing said tanks that any spillage or drainage therefrom would be drained into a covered pit or sump, and in failing to provide an anti-flashback guard for the said pit. “(f) In designing the said tank so defectively and improperly that great internal strains were set up by the presence of liquid gas therein, which strains were due to the differences in contraction of the component parts of said tank. “(g) In designing and constructing the connecting pipes and valves which connected the various tanks with the general liquefying system of said plant in such a manner that there was inadequate protection against sudden surges of pressure in said tank. “(h) In designing and constructing said cylindrical tank in such a manner that no device was provided for agitating the liquid contents thereof or otherwise protecting against the hazards of vapor pressure within said liquids, and so as to avoid the hazards of surge or ‘bumping’ arising therefrom. “(i) In failing to design or provide an effective cushioning device to protect the said cylindrical tank and its constituent members, and particularly the inner shell thereof, from the dangers of continued vibration and the fatigue resulting therefrom. “(j) In designing and constructing said fourth tank in the form of a cylinder instead of a sphere when said cylindrical form was likely to rupture when put to the use for which it was designed; and in further constructing said cylindrical tank without adequate engineering data warranting its substitution for the spherical form which had been formerly used.- (Emphasis supplied.) “(k) In failing to provide adequate supports or materials of sufficient strength to support the weight of said cylinder and its liquid contents, and in failing further to make adequate laboratory tests to determine the effect of extremely low temperatures upon the materials thus used in the presence of the strains incidental to the weight and support of such a structure and the vibrations encountered at the site of said tanks. “(1) In using for insulation in the cylindrical tank a substance untested for such purposes, arid which the defendants knew or ought to have known was likely to disintegrate and lose much of its insulating value, and in failing to provide adequate insulation between the inner and outer walls of said tank. “(nr) In so designing and erecting said cylindrical tánk as to make it difficult, if not impossible, to keep the insulation in proper position or to replace defective insulation or to repair adequately leaks in the structure of said tank when such leaks should appear. “(n) In failing to make adequate tests of the effects of liquid gas upon the materials and alloys used in said structure before attempting to erect said plant and particularly the cylindrical tank. “(o) In designing, planning and erecting said tanks at a place and in such close proximity to each other that any leakage from one or the other of said tanks was likely to cause conflagrations and explosions in the other tanks. “(p) In so designing said tanks without any adequate safety devices or safeguards around them so as to permit said gas, in the event of leakage, to be protected against fires and explosions; and particularly in failing to equip said tanks with outside sprinkler systems or with Fosmite or carbon dioxide safety provisions. “(q) In so designing and constructing said tanks that there was no adequate provision to give warning by automatic machinery or otherwise of the fact that leakage was taking place, or that a rupture or fracture of the inner shell of said tank had taken place. “(r) In giving instructions to the employees of The East Ohio Gas Company after leakage from the cylindrical tank had begun, to cause the frost spots resulting from said leakage to be removed by the process of applying steam blowers, when said process was hazardous and dangerous and was likely to cause ruptures to be en larged and made more dangerous; and when further, said employees of The East Ohio Gas Company ought to have been instructed immediately to withdraw said liquid gas from said tank. “(s) In designing said system of tanks in such a manner as to fail to provide a spare or storage tank available for the storage of liquid gas in the event that one of said tanks developed ruptures or leakage, such as to require an immediate and early emptying thereof. “(t) In failing to give proper warnings to the employees of The East Ohio Gas Company or to the general public of the great hazards involved in working in or about said plant.” In brief, it is the plaintiff’s contention that it was error to reject testimony which would establish that the No. 4 cylindrical tank was not as safe, or that it was more dangerous than if a spherical tank had been constructed — this testimony to prove either or both of the following theories: (a) That said action on the part of the defendants was evidence to be considered by the jury in determining whether negligence existed. (b) That said action on the part of the defendants constituted negligence. It is urged that this question was adjudicated affirmatively in plaintiff’s favor by the Circuit Court, and that the trial judge failed to follow the mandate of the appellate court. No objection was made by the defendant during the first trial to evidence being presented in support of said allegation of negligence, but strenuous objection was presented at the retrial. In connection with the question as to the trial court being bound by the mandate of the Circuit Court relative to the allegation of negligence, “the use of a dangerous cylindrical form for tank No. 4 instead of the spherical form,” the defendant contended that the matter was not argued before the Circuit Court and that, therefore adjudication was not made of this question, and it was proper to object to testimony introduced to establish said allegation of negligence. The defendants’ contention seems to be supported if reference is had to the reply brief of the appellant where the plaintiff states that the defendants do not attempt to dispute or explain in any way any specific items of negligence. The only consideration which the Circuit Court gave to the specific items of negligence was a statement' that it was believed that there was sufficient evidence in the record to require their submission to the jury, and to pass upon the question whether the jury would believe the evidence and draw the inference of negligence therefrom. Although reference was made by the Circuit Court to said allegation of negligence, it appears from a reading of the various paper books which were filed by the respective party litigants and the opinion of the Circuit Court, that said basis for negligence was not argued before the Circuit Court. A firm1 rule was not made by the Circuit Court as to whether or not evidence was admissible to establish lack of due care or the existence of negligence on the basis of said allegation. It was, therefore, proper for the defendant to object to said testimony, and that the disallowance of proof to establish negligence on said basis was required by the settled rules of law which govern actions based on negligence. I, therefore, do not believe that I neglected to follow the mandate of the Circuit Court, but, on the contrary, it was my duty to pass upon the question when presented by the defendants. The plaintiff alleged as an act of negligence that the defendants were negligent in designing and constructing said No. 4 tank in the form of a cylinder instead of a sphere, which said cylindrical form was likely to rupture when" put to the use for which it was designed, and in further constructing said cylindrical tank without adequate engineering data warranting its substitution for the spherical form which had been formerly used. This action is governed by the law of negligence. Negligence is failure to conform to the standard of a reasonably prudent man, or, broadly speaking, a departure from the normal, or what should be the normal. It cannot be established by showing that had the actor acted otherwise, no accident would have happened. Eckenrode v. Penna. R. R. D.C., 71 F.Supp. 764, 3 Cir., 164 F.2d 996, 335 U.S. 329, 69 S.Ct. 91, 92 L.Ed. 1144. The definition of negligence has become common place in the law that negligence is a failure to do what a reasonably prudent person would ordinarily have done under the circumstances or the situation, or doing what such a person under existing circumstances would not have done. Baltimore & P. R. Co. v. Jones, 95 U.S. 439, 24 L.Ed. 506. The same rule exists in Pennsylvania and Ohio, and no useful purpose would be gained in making reference to the various authorities in those jurisdictions. The three spherical tanks which were originally constructed were designed to each hold substantially 50 million cubic feet of gas, or if the gas were liquidified 100 thousand tons. The cylindrical or the No. 4 tank was to hold 100 million cubic feet of natural gas or a weight of liquid, when the gas had been liquefied, of 200 thousand tons. In other words, the cylinder was to hold double the amount of' gas or liquid held by the spherical tanks. Prior to the construction of the spheres or the No. 4 tank, there was never any custom established relative thereto or for the welding of tanks for storage of large quantities of liquefied natural gas at a low temperature of 258 to 280° below Zero F. As to the No. 4 cylindrical tank, a similar one had never been constructed or used for the storage of liquid gas. Also, a spherical tank had never been used to store the amount of liquid gas required by the No. 4 cylindrical tank. It was a step forward in the development of ingenious engineering in this particular field of scientific advancement. No offer was made by the plaintiff to establish that if a spherical tank had been constructed to hold twice the amount of gas which the three spheres had held, that the spherical tank would have been safer or better than the No. 4 cylindrical tank. Unless there is a safer method available or it has been established in the custom or trade that the safety factor would be promoted by the use of a sphere rather than the cylinder, or that the hazard was increased by the use of the cylinder rather than the sphere, negligence cannot be inferred from the failure to do an act in some other way not shown to be safer. Wood et al. v. Philadelphia Rapid Transit Co., 260 Pa. 481, 104 A. 69, L.R.A. 1918F, 817. Where prudent, careful and cautious men, equally competent to judge of a difficult and doubtful situation, hold dis-metrically opposite views as to which of the.two courses is safer, the adoption of either course cannot be negligence. In such cases there is no normal from which to depart. Boston Cape Code & New York Canal Co. v. Seaboard Transp. Co., 1 Cir., 270 F. 525, certiorari denied 256 U.S. 692, 41 S.Ct. 534, 65 L.Ed. 1174. “ Evidence as to whether or not a given instrumentality is safer or better than the one that has been used, in my judgment, is not proper to be considered as to whether or not negligence exists, unless it is first established that a custom or a usage exists that a certain or given instrumentality is safer or better than another condition or instrumentality. Therefore, evidence of one isolated case where there has been no previous custom or usage, and where the situation relates to the opinion of one person dominating over that of another is not admissible to establish said isolated condition is best or better than another. The standard of due care is such care that a prudent person can exercise under circumstances of a particular occasion, and conformity to customary or usual conduct or methods cannot amount to more than circumstances to be considered together with other circumstances in the case in determining whether due care has been exercised. Usage, customary methods and customs, although they do not furnish a test which is conclusive or controlling over the question of negligence or fix a standard by which negligence is measured, they may be treated as factors of measurement of due care. They cannot be treated to the extent of justifying a custom so obviously dangerous to life and limb as to be at once recognized as such by all intelligent persons. Price v. New Castle Refractories Co., 332 Pa. 507, 3 A.2d 418; MacDougall v. Pennsylvania Power & Light Co., 311 Pa. 387, 166 A. 589; Fox v. Keystone Telephone Co., 326 Pa. 420, 192 A. 116, 110 A. L.R. 1182; Earl D. Diesbourg v. Hazel Atlas Glass Co., 3 Cir., 176 F.2d 410. It does not appear to make any material difference whether the application of the rule of law just enunciated is governed by Ohio, Pennsylvania or federal law since they all show adherence to the general rule as stated. For Penna. — MacDougall v. Penna. Power & Light Co., supra. For Ohio — Ault v. Hall, 119 Ohio St. 422, 164 N.E. 518, 60 A.L.R. 128; Ribarin v. Kessler, 78 Ohio App. 289, 70 N.E.2d 107. Federal —Earl D. Diesbourg v. Hazel Atlas Glass Co., supra; 45 Corpus Juris, Para. 89, pages 706, 707, 708 and 709. If evidence had been introduced to establish that the construction of a spherical tank for the storage of liquid gas in the amount to be stored in the cylinder had been accepted in the industry or trade, and as a result thereof a practice, custom or general usage existed in said type of business, I believe it would then have been proper to show that the spherical tank was more secure, better and safer than the cylindrical tank. On the contrary, however, I believe it is improper to permit said proof on the basis of one isolated instance where difference of opinion exists, and there has been no acceptance as a practice, custom or general usage in the business that as to the one isolated instance the approach made was safer or better than the one which was used. If there had been a common usage in trade or practice of the business relative to the construction of a tank to hold liquid gas, then the testimony would be admissible to be considered as a test of negligence although it would not be conclusive or controlling. Carthe v. Ruppert, 264 N.Y. 290, 190 N.E. 643; Standard Oil Co. v. New York v. R. L. Pitcher Co., 1 Cir., 289 F. 678, 685; Miller v. Philadelphia, 345 Pa. 1, 25 A.2d 185. The plaintiff’s offer does not even fall within the rule just enunciated for the reason that the testimony did not establish that had the spherical tank been constructed in lieu of the No. 4 cylindrical tank, it would have been sufficient or satisfactory for the purpose intended. It must be kept in mind that the cylindrical tank was twice the size of the spherical tank. The steel used in the cylindrical tank would have been subject to twice the load of the steel used in the spherical tank, and there are many other items of design, fabrication and construction of the various elements and materials used in the cylindrical tank that had not been heretofore tested or commercially used in the spherical tank of the size sufficient to store 100 million cubic feet of natural gas, the size of the cylindrical tank. There was no custom, usage or practice in the trade or business wherein there was accepted or known that a spherical tank would hold 100 million cubic feet of natural gas or be suitable .or fit for the purpose intended. That in the absence of custom, usage or practice in the business or industry, evidence as to one instrumentality being safer or better than another is not negligence, and cannot be used as a basis in determining whether or not negligence exists. That the doctrine to be applied is the exercise of due care, caution and prudence under the circumstances, and evidence as to what is safer or best is irrelevant. Since experts and engineers trained in the field, all of whom were competent to judge a difficult and doubtful situation, held diametrically opposite views as to whether a cylindrical or spherical tank was safe, even as to a tank one-half the size of the cylindrical tank, the adoption of either course or the failure to adopt either course cannot be held as a matter of law to be a lack of due care or negligence, nor it is evidence of negligence. It is apparent from the testimony offered by the plaintiff that the experts, who expressed their opinion when inquiry was made as to whether a cylindrical tank could be designed with safety and built of suitable materials, in each instance made the answer that if they had the choice or the selection, they would construct or build spherical tanks. . The rule of law presented by the plaintiff that “if there were two methods equally opened to performing the act, one of which would be a reasonably safe one and the other an extremely hazardous one, it would be his duty to adopt a reasonably safe, method” cannot apply to the questions before the Court for the reason that there is no proof offered to establish that the spherical tank would be,’from a practical standpoint, safer than the cylindrical tank. There was no custom, usage or practice in the industry since the construction of the cylindrical task was pioneering the field and the spherical tanks had only been used for one-half the storage volume that was to be charged to the cylindrical tank. There was a difference of opinion existing among the experts as to which, tank was more acceptable or satisfactory for the purpose intended, and, therefore, the testimony that the spherical tanks were better or safer than, the cylindrical tank was improper as a matter of law, and should not have been considered by the jury in determining whether negligence existed or defendants exercised due care and caution under the circumstances. An expert cannot be permitted to testify whether or not a certain practice was a safe one, though he may, if properly qualified, testify whether or not the common usage of a business had been adhered to by the defendant. Sweeney, Appellant, v. Blue Anchor Beverage Co., 325 Pa. 216, 189 A. 331. It is my conclusion that it is improper to establish negligence, where a custom or usage has not heretofore been established, that some other instrumentality or approach might have been better or the best where only isolated instances exist. The construction of the tanks for the storage of liquid gas was a new venture since liquid gas had not heretofore been stored or used for storage prior to the construction of the spherical tank. A situation, therefore, existed which amounted to pioneering and, therefore, no custom or practice could possibly have existed in the trade or business of this nature. In negligence cases the test is always whát a person of ordinary caution would have used under the circumstances. It is one of the common places of the law. Texas & Pacific Railway Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 47 L.Ed. 905. If a person has acted with ordinary prudence and judgment, he is not negligent although danger might have been avoided if he had acted in a different manner, and, hence, the doing of an act in a certain manner is not necessarily negligence merely because there may have been a safer manner of doing it. Negligence, therefore, cannot be inferred from failure to do an act in some other way, not shown to be safer than the way in which it was done; and when prudent men differ as to which of the two courses is safer, negligence cannot be predicated on the adoption of either. 45 Corpus Juris, Para. 70, pages 698, 699. Furthermore, there was no obligation existing upon the defendant to use a better method or best method, but only to use due care and caution under the circumstances. In the trial of this proceeding where the plaintiff offered testimony to establish or show that some of the features of the cylindrical tank were improper, or that other features of the cylindrical tank would not be sound from an engineering or construction standpoint, such evidence was admitted in order to assist the jury in determining whether or .not due care and caution was exercised. In short, there is considerable testimony in the record to establish that the steel used in the cylindrical tank was improper, the insulation was faulty, the design was bad, the valves were not adequate, and numerous other references which tended to prove that the design and construction of the cylindrical tank was improper. There is no authority which I have been able to find, and none has been presented by counsel for either party, which holds that negligence can be established by proving the use of one instrumentality is safer or better than another instrumentality which was used. The plaintiff has invoked the doctrine set out in railroad cases which holds that a pedestrian must accept the safe way for one that is known as dangerous. In applying this doctrine, it must first be established that there is a known safe way and that there must be known a dangerous way. ' Storovetsky v. Pennsylvania R. R., 328 Pa. 583, 195 A. 871. There is no testimony in this record that the spherical tank was safe, and' the same type of steel was used'in both the spherical and the cylindrical tanks. I, therefore, do not believe that the railroad cases’ doctrine has application to the facts, in this case. I believe the test of negligence as outlined by the Court and the rulings made relative to the admission of evidence were proper since the test of negligence is whether or not ordinary care and caution was exercised under the circumstances. The jury was properly, fairly and thoroughly instructed as to the doctrine of negligence, and the refusal to permit evidence as to the spherical tank being safer or better than the cylindrical tank was proper. II. Rulings of the Court in Reference to the Testimony of James O. Jackson. Permitting defendants to re-examine Jackson after he was called for cross examination by the plaintiff on matters wholly unrelated to the patents which was the subject of plaintiff’s examination— This examination was authorized under provisions of Rule 43(b) of the Federal Rules of Civil Procedure which provides, inter alia, that a party may call an adverse party or an officer, director or managing agent of a private corporation, or of a partnership which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination. The plaintiff requested the right to cross-examine James O. Jackson on the ground that he was an officer of defendant corporation and the managing agent of defendant partnership. The defendant denied that he was either an officer or a managing agent of the defendant partnership, and in view of his testimony relative thereto, the Court permitted his cross examination as the managing agent of the defendant corporation. It is my judgment, from a reading of the record and my observation at the time Jackson was called for cross examination, that at the time the cylinderical tank was designed, fabricated or constructed, he was managing agent only of the defendant corporation. He was not an officer of the corporation during said period and he specifically was not a managing agent, a partner or an officer of the defendant partnership. No prejudicial error could have possibly arisen to the plaintiff in limiting the cross examination of Jackson to the defendant corporation, since in final analysis the trial court in its charge left for the jury the determination as to whether the acts of Jackson were those of the defendant corporation, the defendant partnership, and/or the individual defendant. The cross examination of Jackson relative to the patents and applications for patents was made to show the requirements with reference to the necessity of strong steel, with high impact strength of at least a minimum of ten pound Charpy impact strength, in the plates and welds of tanks for the storage of liquefied natural gas. The further purpose of offering the cross' examination was to establish from a substantive standpoint that in order to construct a proper tank, it was necessary to comply with the matters referred to in the patents and the applications, and that since there was a failure to so comply, the tank was improper and the jury should draw the inference that the defendants were guilty of negligence. In short, the purpose of the cross examination was to establish that since the defendants failed and neglected to comply with the terms and provisions of the patents or the applications that the steel, the welding, the construction and design of the No. 4 cylinderical tank was improper and, therefore, negligence existed. Considerable argument and discussion was had as to the right of the defendants to examine Jackson relative to the matters testified to on cross examination. It was the defendants’ position that the right existed to examine the witness relative to his intentions, his beliefs and the basis for the expression of the matters which appeared in the applications and the patents finally issued. The defendants premised their rights on the basis of Pennsylvania authorities. Felski, Appellant v. Zeidman, 281 Pa. 419, 126 A. 794; Kline v. Kachmar, Appellant, 360 Pa. 396, 61 A.2d 825. As to the rights of examination where an adversary is called for cross examination, whether the adversary is a defendant or a representative of the defendant, the Pennsylvania authorities do not have application where a proceeding is being tried in a federal court. The federal rule must be applied. Cyclopedia of Federal Procedure, 2nd Edition, Volume 7, Section 3153; Moyer v. Aetna Life Ins. Co., 3 Cir., 126 F.2d 141; Zumwalt v. Gardner, 8 Cir., 160 F.2d 298. In determining the extent to which an adverse party, or an officer, director or managing agent of an adverse party, who is called for cross examination under the provisions of Rule 43(b), may be cross-examined by the adverse party, it is necessary to consider only the subject matter of the cross examination. It is proper to permit an examination which will bring out or establish any fact tending to contradict, modify or explain the testimony given by the witness during his cross examination. A party, therefore, has the right to cross-examine a witness on the facts and circumstances connected with the matters stated in the direct examination. Moyer v. Aetna Life Ins. Co., supra; Mintz v. Premier Cab Association, 75 U.S. App.D.C. 389, 127 F.2d 744. It is furthermore competent and proper on cross examination to develop all facts and circumstances within the knowledge of a witness which qualify or destroy the testimony developed, although, strictly speaking, the examination may constitute new matter and is part of the case of the person who desires to explain said testimony. Banning v. United States, 6 Cir., 130 F.2d 330, certiorari denied 317 U.S. 695, 63 S.Ct. 434, 87 L.Ed. 556. If the questions do not go outside of the subject matter of. the examination in chief where a witness is called for cross examination, the inquiry which can be made may be full and exhaustive; that is, the examination can be made to elicit every fact relative to the -matters testified to during cross examination which either conditions, qualifies or weakens the statements there made. Resurrection Gold Mining Co. v. Fortune Gold Mining Co., 8 Cir., 129 F. 668; Commercial State Bank v. Moore, 8 Cir., 227 F. 19; Banning v. United States supra; Radio Cab v. Houser, 76 U. S.App.D.C. 35, 129 F.2d 604; Moyer v. Aetna Life Ins. Co., supra. The rule, therefore, in the federal court seems to be that the limitation upon the scope of cross examination to the subject matter which was referred to during the examination in chief is to be applied, and if a party wishes to examine witnesses regarding other matters, he must do so by making the witness his own and calling him as such in the subsequent progress of the trial. Kineade et al. v. Nickles et al., 8 Cir., 144 F.2d 784; Moyer v. Aetna Life Ins. Co., supra; Wills v. Russell, 100 U.S. 621, 625, 25 L.Ed. 607; Philadelphia & Trenton R. R. Co. v. James Stimson, 39 U.S. 448, 10 L.Ed. 535; Radio Cab v. Houser, supra. In the exercise of my discretion, I believed such action was necessary in regulating the examination of said witness so as to expedíate the trial, elicit the truth and further justice. Cafasgo v. Pennsylvania R. Co., 3 Cir., 169 F.2d 451. It was proper for the defendant to examine the witness upon those particular subjects which were referred to in either the patents or the applications, and unquestionably, in my mind, the cross examination related to subjects upon which the witness had been examined and upon subjects mentioned in either the applications or the patents. The examination permitted by defendants’ counsel was necessary in order to meet the testimony, and the inferences which rightfully could have been drawn by the jury from the matters which appear in the applications or the patents that the steel was bad, the welding improper, or that the structure was not constructed in accordance with the thoughts and ideas expressed therein. The subject matter of the examination permitted by the defendants was proper since it related to the general subjects about which inquiry was made by the plaintiff through the cross examination of said witness. The plaintiff contends that the Court erred when it instructed the jury that' the only question for the jury’s determination was whether or not the tank as designed was reasonably safe. There is no statement in the record wherein the Court stated or instructed the jury that the only obligation of the defendants was to build a tank which was reasonably safe, and I am at a loss to understand why counsel for the plaintiff invokes such an argument. The only reference to such phraseology appears in the examination by counsel for the plaintiff made of witnesses called by him. There exists absolutely no merit in this cause of complaint. Instructions to jury that plaintiff was bound by Jackson’s testimony to the extent that it was not rebutted— The Court instructed the jury relative to this question that — “Where a party litigant calls his adversary or a managing agent of the opposite party to testify as upon cross examination, while the testimony obtained is not conclusive on the party who called said person, for the reason that it may be rebutted by other proof, yet to the extent that testimony as produced from a person called for cross examination is not rebutted by either direct proof or circumstances, it is conclusively taken to be true. The Court further stated that if the plaintiff has offered other proof, either direct or by circumstances, to show what Jackson stated wasn’t true, then the plaintiff could not be bound by the testimony; but if the plaintiff has not offered other proof or circumstances to show that anything which Jackson stated as on cross examination to rebut his testimony or by circumstances, then what he stated as on cross examination would be binding upon the plaintiff.” There was ample testimony in the record wherein the testimony of Jackson as presented on cross examination was contradicted, and in fact in many instances Jackson contradicted himself. The Court at no time stated that any part of Jackson’s testimony was not contradicted nor that the jury as a matter of law was bound by any part of Jackson’s testimony. The question, therefore, as to whether any part of Jackson’s testimony would be accepted was left for the determination of the jury together with the question as to whether or not he had been contradicted in any respect either by testimony or by circumstances. Cardone v. Sheldon Hotel Corp., 160 Pa.Super. 193, 50 A.2d 700. Counsel for the plaintiff argues that the charge which the Court gave to the jury was premised on the basis of Pennsylvania law which does not have application to the question which has been raised. The law in Pennsylvania is settled that where a litigant calls his adversary to testify as upon cross examination, while the testimony thus obtained is not conclusive on the party who calls the witness, yet to the extent that it is not rebutted it is conclusively taken to be true. Kline v. Kachmar, supra. This question was presented to the Circuit Court at the first appeal. The Court stated, “We do not think that there is involved, at this stage at least, any serious question which requires us, at this point, to thread our way through the Pennsylvania decisions under the statute.” Comment was also expressed by the Court, “This witness gave certain testimony as to possible causes for the accident * * * [his testimony was] flatly denied by other witnesses.” Moran v. Pittsburgh-Des Moines Steel Co., et al., supra [166 F.2d 919]. The plaintiff places reliance on a statement which appears in the Cyclopedia of Federal Procedure, 2nd Edition, Volume 7, Section 3153, wherein it is stated, “Although the language of the rule is somewhat involved, the obvious intent is that none of the parties (except, necessarily, the witness himself is a party) shall be bound by the testimony of a witness as called in this manner.” The matter just referred to is an interpretation by the writer of said publication and it is not a part of the rule, and cites no authority to support the statement. . With due deference to the author of the Cyclopedia of Federal Procedure, wherein he stated in Section 3153, Volume 7, relative to Rule 43(b) where an officer, director of managing agent of a corporation is called for cross examination, “Although the language of Rule 43(b) is somewhat involved, the obvious intent is that none of the parties shall be bound by the testimony of a witness called in this manner,” I do not believe that such interpretation is sound or reasonable. Cross examination of any party or witness is known and has been observed by trial judges to be one of the most dangerous and indefinite privileges that arise in the trial of a case. It appears to me that if a party calls a managing agent, officer or director, as for cross examination under the provisions of Rule 43 (b), he speculates or takes a chance as to whether testimony can be elicited from the witness which will be favorable to the cause of the party as a witness. If testimony is offered which is favorable, it definitely can be used and is available to support the claim of the party who calls the witness. In the application of sound logic and reasoning, it is difficult for me to believe that when this rule was promulgated it was intended that the party who called said witness would be permitted to take advantage of all testimony that was favorable and disregard any testimony which would be unfavorable or prejudicial to the basic claim of the party who called the witness. In other words, 99% of the testimony elicited could be favorable, and 1% unfavorable, and under the thought which has been expressed, the party who calls the witness could accept 99% and reject the 1%. Rule 43(b) of the Federal Rules of Civil Procedure provides, inter alia, that a party may call an adverse party or an officer, director, or managing agent of a private corporation or of a partnership which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief. The phraseology used in Rule 43(b) is analagous to that used in the Pennsylvania rule, said rule provides, inter alia, that in any civil proceeding any person whose interest is adverse to the party calling him as a witness, may be compelled by the adverse party to testify as if under cross-examination, subject to the rules of evidence applicable to witnesses under cross-examination, and the adverse party calling such witnesses shall not be concluded by his testimony, but such person so cross-examined shall become thereby a fully competent witness for the other party as to all relevant matters whether or not these matters were touched upon in hís cross-examination. 28 Purdon’s Penna. Statutes Annotated, § 381. The general rule is that a party calling his adversary as a witness vouches, at least to some extent, for his credibility, and is concluded by his testimony so elicited if it is not contradicted or proved false, and this rule also applies to testimony so elicited from an officer, employee, or servant of the adverse party. 32 C.J.S., Evidence, § 1040(b); Zumwalt v. Gardner, supra; Wirfs v. D. W. Bosley Co., et al., 8 Cir., 20 F.2d 632; Swift & Co. v. Short, 8 Cir., 92 F. 567; Standard Water Systems Co. et al. v. Griscom-Russell Co., 3 Cir., 278 F. 703, certiorari denied 259 U.S. 580, 42 S.Ct. 464, 66 L.Ed. 1073; Abdo et al. v. Townshend et al., 4 Cir., 282 F. 476. If the party calling the witness was not to be bound by the testimony offered where there has been no contradiction or impeachment of the witness, no useful purpose would exist for having the provision in the rule in which the party calling the witness is given the right to contradict and impeach the witness in all respects as if he had been called by the adverse party. This thought is given further weight by the additional provision of the rule which gives the adverse party the right to contradict and impeach the witness who has been called for cross examination. I believe the federal rule is the same as the Pennsylvania rule that where a party calls his adversary or an officer, employee or agent of the adverse party, the party who calls said witness vouches, at least to some extent, for his credibility and is concluded by his testimony as elicited if it is not contradicted or proof follows. I believe the rule to be sound that where a party calls the managing agent, officer or director of his adversary, that said party cannot select that which is favorable and reject that which is unfavorable where he has not attempted to contradict the unfavorable testimony. 32 C.J.S., Evidence; § 1040(b), page 1105, Zumwalt v. Gardner, supra. Refusal to admit the Jackson patents as substantive evidence— The plaintiff established during the cross examination of Jackson that he had applied for and had issued to him certain patents. The plaintiff offered in evidence during the case in chief only one of the patents and read to the jury the statements which the plaintiff desired relative to the application for the patent together with the patent that was finally issued. The Court permitted said proof as substantive evidence on the basis of the offer of the plaintiff to establish and show that the defendant corporation failed and neglected to follow the terms and provisions of the patent or the application for the patent. This was permitted since said patent had been assigned to the defendant corporation prior and during the time that the No. 4 cylindrical tank was being designed, fabricated, and constructed, and amounted to an admission against interest on the part of the corporate defendant. At the time the patents were first offered as substantive proof, the Court informed plaintiff’s counsel that the patents or the applications for the patents would be so admitted if offered separately, and the plaintiff established two things: (a) That the patents or the applications for the patents were applied for or issued prior to the time that the No. 4 cylindrical tank was constructed. (b) That the patents or the applications for patents had been assigned to one defendant or the other before the No. 4 cylindrical tank was constructed. Plaintiff’s counsel, for reasons unknown to the Court, did not elect to establish the proof which was required at that time, or did he offer the patents separately, and proceeded to read depositions relative to other matters. It must be understood that the many references to the patents or applications for patents were made at different times, and in some instances days and weeks elapsed between the times when inquiry was made relative thereto. At a later date when the plaintiff had established the assignments to have been properly made to the corporate defendant, counsel for the plaintiff again neglected to offer them separately as substantive proof. Reference to the record will reveal that the Court stated that all of the patents and applications would be admitted as substantive evidence. When the plaintiff closed its case, due to the many problems and questions which arose during the trial, the Court had no knowledge as to whether the exhibits had been separately offered and believed that the responsibility rested with the plaintiff as to what exhibits it desired to offer. It was not until the defendants had proceeded with the presentment of their case for some period of time that plaintiff’s counsel offered the patents which had not been presented separately as the Court had requested. In fact, when they were offered, the Court commented, “Is it not true that these patents were previously admitted in evidence?” Since plaintiff’s counsel had neglected to offer the patents in his case at chief and reference was being made thereto during the cross examination of defendants’ witness, the Court admitted said patents during the defendants’ case solely for the purpose of effecting the credibility of the witnesses called by the defendants. It appears to me somewhat unusual for counsel representing a party litigant to endeavor to charge the Court with prejudicial error for the failure to admit exhibits where the situation is due to the fault or inadvertence of counsel. Some regularity of procedure and adherence to federal practice must be required by the court in the trial of a proceeding, and if plaintiff’s position is sustained, it would tear down and severely interfere with the orderly trial of cases and administration of justice. I know of no rule, where previous favorable consideration has been given to the request of a litigant relative to the admission of testimony, which requires the Court, when no knowledge exists on the part of the Court as to why the offers were not produced,. to permit counsel for said party litigant to introduce substantive evidence during the presentment of the defendants’ case. Plaintiff’s counsel has gone into considerable detail in his brief relative to the patents and their applications being admissible as substantive evidence to establish negligence, and plaintiff’s counsel is correct and the Court so decided that they were admissible. The matter resolves itself into a situation where counsel neglected to do what the Court had authorized, and is now endeavoring to charge the Court with substantive error after an adverse verdict has been returned for acts or deeds which amounted to inadvertence and carelessness on the part of counsel. At no time in the charge of the Court was the jury instructed that any of the patents would be considered only for the purpose of effecting the credibility of one witness or the other. Counsel for the plaintiff made reference to all of the patents or applications in his closing argument. Although I believe that no substantial or even technical error exists as to the admission of the patents or the applications since the situation arose due to the fault of plaintiff’s counsel; if the Court is in error in this respect, plaintiff’s counsel suffered no substantial prejudice. The applications and the patents were used throughout the trial and considered in the closing argument in the same manner as if plaintiff’s counsel had done what the Court suggested, and had offered them separately before the closing of the plaintiff’s case. In addition thereto, all of the patents made reference generally to the same problem, and the evidence was, therefore, merely cumulative as to the patents which ■the plaintiff did not offer as compared with the patent and application which the plaintiff did offer. The best evidence is the approach which counsel made in his closing argument after making reference to the various patents. He stated — “There are other patents in evidence. A patent is an exclusive right given by the United States of America, in its sovereign power, to do certain things. And yet time after time after time, in four patents which we have in evidence and three other applications for -patents, every time he said this tank must be made out of steel which will have a Charpy impact strength of at least ten-foot pounds. Well, they didn’t. This tank was made out of' steel that averaged four and six tenths.” Again a situation exists where plaintiff’s counsel is grasping for “straws” after an adverse verdict, to try and charge the Court with error due to a situation which was created on his own part, and any technical error which might -exist, which I do not believe arises, relative to the patents was clearly relieved by the manner in which the patents were -considered in the closing argument of plaintiff’s counsel. Also, the jury had all the patents and the applications during their deliberation. It would have been most improper for the Court to have questioned counsel for the plaintiff as to why certain things were done or not done in the presentment of his case. This is true since the Court had no way of determining why plaintiff’s counsel did or did not offer testimony or exhibits at one time or the other. In view of the argument of plaintiff’s counsel to the jury relative to the patents and the applications, and the fact that all patents and applications were given to the jury during their deliberation, I cannot visualize or reason on what -basis any substantial error arose to the plaintiff. Refusal to admit the Jackson articles as substantive evidence— The plaintiff offered as substantive proof two articles written by James O. Jackson, designated as Chief Engineer of the Pittsburgh-Des Moines Steel Company. T