On Rehearing.
BRATTON, Circuit Judge.Appellant contends in its petition for rehearing that it was deprived of its constitutional right to have its cause fairly presented in this court. The contention is predicated upon the declination of the court to permit counsel to exhibit certain physical equipment and to use it in connection with his oral argument. It is stated in the affidavit of counsel, made a part of the petition, that one of the shells which was purchased for use in lowering the charge of nitroglycerin in the well was placed in the court room prior to the submission of the cause; that a portion of the torpedo line, umbrella bridge, hook, and piece of soft rope were suspended on a frame in the corridor immediately adjacent the court room; that the shooting car with the torpedo line and equipment thereon was placed at the front door of the court house; that at the commencement of the argument and once later counsel asked permission to bring into the court room the portion of the torpedo line, the umbrella bridge, the hook, and the piece of soft rope, and to suspend them on a framework and explain them to the court in the argument; that the further request was for the court to view the shooting car, the reel, and the equipment at the front door of the building; and that the request was denied. It was not understood by the court that the identical equipment had been introduced in evidence on the trial below. Neither was it understood that any of it was in the court room at the time the request was made. Instead, it was understood that the equipment was identical in kind with that used in connection with the shooting of the well; that some of it was in the corridor adjacent ’the court room; that the remainder was at the street curb in front of the building; and that counsel desired to make preference in aid or by way of explanation of his argument. But that is not material. At the time the request was first made counsel was advised to proceed with his argument and that the court would determine as the argument went forward whether exhibition of the equipment was needed or would be helpful. It was the opinion of the court at the time the request was renewed that the exhibition was neither necessary nor conducive to a thorough understanding of the case, and for that reason the request was denied.
The question whether heavy, bulky, or unwieldy articles, or other demonstrative evidence shall be brought into the court room and exhibited to the court and jury, or whether the court and jury will view articles or demonstrative evidence outside the court room rests in the sound judicial discretion of the trial court. Hood v. Bloch, 29 W.Va. 244, 11 S.E. 910; Souther v. Hunt, Tex.Civ.App., 141 S.W. 359; Harrild v. Spokane School Dist., 112 Wash. 266, 192 P. 1, 19 A.L.R. 811; Thompson v. Columbian Nat. Life Ins. Co., 114 Me. 1, 95 A. 229; 2 Wigmore on Evidence § 1161; 3 Jones on Evidence § 398. Manifestly that doctrine has appropriate application in the submission of a cause in an appellate court. It was wholly unnecessary to exhibit the equipment in question. With his usual ingenuity, counsel presented the contentions of appellant in such an erudite manner that they could not be misapprehended. They were so well understood that proference of the equipment would not have aided the court in determining the questions. But after the argument had been concluded, that part of the equipment which had been in the court room and in the corridor was placed in the office of the clerk, and in the interest of thoroughness members of the court there examined it with care. No right of appellant was disregarded or violated.
*488One further contention merits a word It is that appellant did not manufacture the shells which were used in preparation for shooting the well; that the accident was due to some latent defect in one of them, or in the bail, or in the manner of the insertion of the bail in the shell; that there was no evidence to show what caused the bail to pull out or become detached from the shell; that it may have been due to many causes for which appellant was in no wise to blame; that the testimony leaves the matter uncertain; and that for such reason there is no liability. The cases of Patton v. Texas & Pacific Ry. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Lynch v. International Harvester Co., 10 Cir., 60 F.2d 223; U. S. Radiator Corporation v. Henderson, 10 Cir., 68 F.2d 87, and Smith v. S. S. Kresge Co., Inc., 8 Cir., 79 F.2d 361, are relied upon to sustain the argument. The contention would have tenable basis if the evidence pointed clearly and convincingly to the fact that the accident was due to a latent defect in the shells which appellant furnished, but did not manufacture, or that the cause of the accident was purely speculative or conjectural. But that is not the situation. There Was substantial evidence tending to show (1) that three shells were lowered into the well at a time in disregard of the advice of the manufacturer that only two be lowered together, (2) that the three shells were lowered too fast, and (3) that the line was not spooled evenly on the reel, that it had humps in it, that it was piled up in places and had low places, and that such conditions caused a jumping and jerking action as the shells were lowered. The evidence is attacked on various grounds, but it was enough to present the issue of negligence on the part of appellant as the direct and proximate cause of the explosion. The court submitted the issue of negligence in clear and direct language. The jury were told that before a verdict could be returned for appellees they must find that appellant was guilty of negligence in connection with the lowering of the shells in the well and that such negligence was the proximate cause of the accident; and further, that they could not indulge in guesswork or speculation. The evidence was sufficient to warrant a finding with reasonable certitude that one or more of the acts of negligence of the appellant caused the accident, not a latent defect in the shells. The issue of negligence was resolved against appellant; there is substantial evidence to support the finding; and under the often repeated rule, it will not be disturbed on appeal.
Other contentions previously advanced and argued at length are renewed. They have received painstaking consideration, and we think they lack merit. The petition is denied.