Before BRATTON, HUXMAN and MURRAH, United States Circuit Judges.
Appellee, Arnold Cudd, instituted this action against appellant, E. I. du Pont de Nemours and Company, herein called Du Pont, in the District Court of Denver County, Colorado. Diversity of citizenship and jurisdictional amount being present, the case was removed to the United States District Court for Colorado. The complaint alleged that Du Pont "negligently, carelessly, and recklessly caused an explosion of a charge of nitroglycerin; and as a result of said negligence, carelessness and recklessness on the part of the defendant and said explosion, plaintiff was injured." Defendant's answer traversed the allegation of negligence and affirmatively alleged contributory negligence and assumption of risk. At the close of plaintiff's evidence and again at the close of all the evidence, defendant moved for a directed verdict. The trial court reserved its ruling on both motions and permitted the case to go to the jury under instructions which included a usual instruction requiring a finding of negligence if defendant was to be held liable. The jury returned a verdict for plaintiff, the court entered judgment thereon, and this appeal followed.
The undisputed facts show that in order to increase the production of its Levison Well Number 6 at Artesia, Colorado, Phillips Petroleum Company decided to shoot the producing formation in the well with nitroglycerin. In accordance with the usual practices, phillips employed the T.C.S. Drilling Company, an independent contractor, to ready the well for shooting operation by "killing" it and otherwise preparing it for the laying of the shot. Du Pont was employed thereafter to shoot the well. Its activities were confined solely to that operation. Three Du Pont men came upon the premises about 3:30 P.M., September 6, 1946, for the purpose of performing this operation. Phillips' superintendent, J. W. Hilliard, specified liquid nitroglycerin as the explosive, and specified the safety devices to be used in connection therewith. Du Pont's employees, after their arrival, were advised that the well was in condition to shoot. After making precautionary tests to determine the measurements and conditions of the well, they proceeded by usual and recognized methods to lower 645 quarts of liquid nitroglycerin into the hole. Detonating time bombs were set to discharge the nitroglycerin twenty hours later, or around four o'clock the next afternoon. A protective umbrella was lowered into the hole and placed directly over the shot for the purpose of forming a screen over the explosive just below. Du Pont's men then placed a ten foot wall of broken brick on top of the umbrella, the purpose of which was to provide a base to support the sealing cement that was to be placed thereon. The purpose of this cement was to prevent the dissipation of the force of the explosion upward. At no time did Du Pont employees make checks of the bottom-hole temperature or pressure of the well.
Halliburton Oil Well Cementing Company was employed to cal-seal the well. Appellee, an employee of T.C.S. Drilling Company, reported for work at the well about midnight, just before Du Pont left the premises. He was directed by his superior to help Mr. Linss, an employee of Halliburton, with the cal-sealing operations. The well was full of dead oil which had remained in the hole after the "killing" process and the employees were having difficulty lowering the empty dump bailers into the fluid filled hole. They were working on a wooden platform around the mouth of the well about fifteen feet above the ground. While appellee was holding one section of the bailer down with his foot, there was a violent upsurge of oil out of the well and the bailers were lifted some distance out of the hole and he was thrown into the air and fell on the platform sustaining the injuries for which he sought damages. He testified that at the time he heard a noise like a .22 rifle shot. The accident occurred around three o'clock A.M. on September 7. Thereafter Linss proceeded with the cal-sealing operations. Du Pont's employees came back to the well that afternoon and remained at the well for some time prior to and after four P.M. with testing equipment to record the explosion. No. explosion was heard nor registered.T.C.S. Drilling Company employees then drilled out the hardened calseal and found that the shot had gone off.
Appellee sought to have his case submitted in the trial court on the doctrine of res ipsa loquitur and complains of the action of that court in refusing to thus submit it and in submitting it on the theory of general negligence. The question is raised whether appellee, having failed to cross appeal, may now complain of the action of the trial court in this respect. Appellee found himself in the anomalous position of having obtained the judgment he sought on a theory other than the one on which he sought to try his case. He thus was not in a position to complain by appeal.
We are of the opinion that there is no evidence of general negligence warranting the submission of the case to the jury and that the trial court erred in not sustaining appellant's motion for a directed verdict and for that reason the judgment must be reversed and the cause remanded.
Assuming that the case should have been submitted on the theory of res ipsa loquitur, are we powerless to remand with directions to grant a new trial on that theory because the error was not presented on a cross appeal? This would result in a manifest miscarriage of justice and would make a mockery of the maxim that: "For every wrong there is a remedy." Appellate courts have inherent power to correct substantial error occurring during a trial even though not directly raised. In referring to the general rule that one who has not appealed may not, as a matter of right, question the correctness of the court's judgment, the Supreme Court in Langnes v. Green, 282 U.S. 531, 538, 51 S. Ct. 243, 246, 75 L. Ed. 520, states: "These decisions simply announce a rule of practice which generally has been followed; but none of them deny the power of the court to review objections urged by respondent, although he has not applied for certiorari, if the court deems there is good reason to do so."*fn1
We conclude that we have inherent power to reverse and remand with direction to grant a new trial if the case should have been submitted on the doctrine of res ipsa loquitur.
As pointed out in the cases, the doctrine of res ipsa loquitur is the creature of necessity. It is imported into our jurisprudence to avoid a miscarriage of justice in those negligence cases in which the dangerous instrumentality is exclusively in the control of one charged with liability and in which there is secrecy or invisibility of the danger of which the outsider could know nothing and concerning which the owner thereof because of his exclusive control and possession has knowledge.
A good statement of the philosophy of this doctrine is found in Boulder Valley Coal Co. v. Jernberg, 118 Colo. 486, 197 P.2d 155, 156, where it is stated: "'The reason or theory of the doctrine of res ipsa loquitur is based in part upon the consideration that, as the management and control of the agency which produced the injury is, under the circumstances to which the doctrine applies, exclusively vested in defendant, plaintiff is not in a position to show the particular circumstances which caused the offending instrumentality to operate to his injury, while defendant, being more favorably situated, possesses the superior knowledge or means of information as to the cause of the accident and should, therefore, be required to produce the evidence in explanation. Accordingly if the circumstances do not suggesi or indicate superior knowledge or opportunity for explanation on the part of the party charged or if plaintiff himself has equal or superior means of information, the doctrine cannot be invoked.'"
And again: "The doctrine 'is the creature of stern necessity for the sake of guarding against a miscarriage of justice that in a negligence case might follow because of the mere secrecy or invisibility of danger concerning which the outsider could know nothing. It is a doctrine that must be kept within comparatively narrow limits, lest a desire to promote justice bring about the defeat of justice instead.'"*fn2
And in East End Oil Co. v. Pennsylvania Torpedo Co., 190 Pa. 350, 42 A. 707, 708, it is pointed out that in order for the doctrine to apply it is essential to show that the "transaction in which the accident occurred was in the exclusive management of the defendant, and all the elements of the occurrence within his control, and that the result was so far out of the usual course that there is no fair inference that it could have been produced by any other cause than negligence. If there is any other cause apparent to which the injury may with equal fairness be attributed, the inference of negligence cannot be drawn."
The East End Oil Company case was a well shooting case, and among other reasons for not applying the doctrine in that case, the court said that: "There was no evidence that the result complained of was so ...