dissenting.
I respectfully dissent, for I believe there was some evidence from which the jury could find that the explosion was caused by the allegedly defective design of the rifle, which allowed it to be fired without the bolt head in place and allowed the bolt head to become separated too easily from the bolt when out of the barrel.
The following matters are affirmatively established beyond question: the rifle did explode when Scronce fired it; it could and would fire without the bolt head; if the rifle were fired without the bolt head, it would inevitably explode as it in fact did explode; the bolt was removable and designed so that when outside the rifle its head could be detached, and it could be inserted without the head.
Additionally, there was evidence affirmatively establishing that when the rifle exploded it was fired without the bolt head, and there was no evidence (or no evidence other than of the most attenuated circumstantial nature) to the contrary. The defendants’ expert Freer testified “there is no question at all but that the bolt head was not on the bolt body at the time the gun was fired,” that “we could determine that by the condition of the bolt when I examined it,” and that examination of the bolt head showed no damage to it. Another expert of defendants, McDaniel, testified to the same effect, as did plaintiff’s expert McDonald (who also testified that the bolt body, minus the head, was damaged and the base of a cartridge was impaled on the broken firing pin). Again, there was simply no serious dispute about this, it was established by reliable physical examination and all parties so recognized.
The majority hypothesizes several possible causes of the explosion, viz: (i) defective ammunition; (ii) obstruction of the rifle barrel; (iii) the rifle being fired without the bolt head.
No one connected with the case has suggested any other possibility, and none is raised by the evidence.
In view of the virtually undisputed evidence that at the time of the explosion the rifle was fired without the bolt head, and the further evidence that such firing would inevitably cause the rifle to explode as it did, the jury was certainly at liberty to disregard hypotheses (i) and (ii) above, and to conclude that some form of hypothesis (iii) was correct. This hypothesis is also circumstantially slightly supported by the testimony of plaintiff’s wife that after the explosion she found the detached bolt head in a pocket of the shirt plaintiff was wearing when the rifle exploded.
Additionally, as to hypothesis (i), there not only was no evidence of defective ammunition, but before trial all parties signed an agreed motion to dismiss the ammunition manufacturer reciting “all parties are in agreement that the ammunition in use at the time of the occurrence made the basis of this lawsuit ... was not defective.” Respecting hypothesis (ii), there is no suggestion in the record to support it, and surely the defendants’ experts who examined the rifle would have suggested this possibility were it consistent with the physical evidence. Also, the bolt body had a cartridge base impaled on it, as above noted, which is not suggestive of an obstructed barrel. Moreover, the rifle was in evidence, and it presumably shows no signs of having been fired with the barrel obstructed. In sum, it is evident that the obstructed barrel hypothesis was not more specifically discounted only because it was so obvious to all that it was not a possible alternative.
*1208Plainly, then, the jury could conclude — indeed, was virtually required to conclude— that the cause of the explosion was the rifle being fired without the bolt head. But how and when did this happen?
The majority says the jury was not free to find that, between the second and third shots, the bolt head, being attached to the bolt in the barrel, came loose and fell out of the barrel, because all the experts say this physically could not happen. I agree. The majority also rejects the hypothesis that the bolt was initially inserted in the barrel without the head, but did not cause an explosion until the third round, because, as all the experts testified, it would inevitably cause an explosion on each round. Again, I agree. Likewise, the majority rejects the hypothesis that the explosion occurred on the first round, the bolt having been inserted without the head, because Scronce unequivocally testified, without retraction, that the explosion did not occur until the third round. I cannot fault this conclusion, for a party should not be allowed to recover on a theory at variance with his clear and deliberate testimony of what he actually observed, where there is no basis on which to question his ability to do so accurately.1
There is, however, one remaining hypothesis, namely that the explosion occurred on the third shot, Scronce having removed the bolt from the barrel after the second shot (perhaps putting it in his shirt pocket) and inadvertently reinserted it without the bolt head, the head having become disengaged from the bolt while the bolt was out of the barrel. In this connection, it may be noted that plaintiff’s expert testified the bolt head “will readily come loose outside the gun.” The majority’s rejection of this hypothesis appears to be based on Scronce’s testimony that he did not remove the bolt between the second and third rounds. However, as I read the testimony, Scronce was saying that he thought he did not remove the bolt, but that he was not sure and really did not remember, as opposed to saying that he was positive he did not remove it. Scronce also testified that it was not unusual at the range to remove the bolt between rounds on various occasions.2 The majority correctly notes that “diminished recall of events immediately preceding a sudden physical shock is a matter of common knowledge.” In this instance, the jury could have applied such common knowledge and decided that Scronce’s testimony was not inconsistent with the hypothesis that the bolt was removed between the second and third shots.
Accordingly, the case was in this posture. It was undisputed that the rifle exploded when Scronce fired it, that it could be fired without the bolt head, and that if so fired it would inevitably explode as it did. All hy*1209potheses for the cause of the explosion other than the rifle being fired without the bolt head were effectively eliminated. And, the expert testimony and physical evidence clearly showed that when the rifle exploded it was in fact fired without the bolt head. In these circumstances, the jury would normally be free (if not compelled) to conclude that when it exploded the rifle was in fact fired without the bolt head, and that this was the cause of the explosion. Perhaps the jury could not so find if Scronce’s testimony, taken with other undisputed evidence, was affirmatively inconsistent with the bolt head being out of the rifle at this time. But there is no such clear inconsistency. The hypothesis that between the second and third rounds Scronce removed the bolt, that the bolt head became disengaged, and that he thus inadvertently inserted the bolt without the head, has not been eliminated. That being the case, the jury was free to find, based on the physical facts and clear and positive expert testimony, that the rifle was fired without the bolt head when it exploded, and to infer that this was the cause of the explosion.
. By the same reasoning, we can reject the hypothesis that there was more than one explosion.
. Scronce’s testimony was as follows:
“Q Did you ever remove the bolt from the rifle while you were at Carter’s [the shooting range]?
“A Not to my knowledge, no, sir.
“Q Are there any safety precautions that you take in the firing range that might occasion you to remove the bolt?
“A Yes, sir. When they have a loud speaker system, a warning system which gives people an opportunity to put up targets. And when people are putting up targets, everybody is required to open their bolt. And sometimes on occasions like that, you would remove the bolt.
“Q Have there ever been times at Carter shooting range or other shooting ranges during such instances that you have removed the bolt from the gun?
“A Yes.
“Q When those things are done, what do they generally do with the bolt?
“A Usually lay it beside the gun on the bench.
“Q Do you have any recollection of doing that on October 3, 1977?
“A No, sir. I don’t remember whether I removed it or whether it was left in the gun. I believe it was left in the gun, but I'm not sure.
“Q That is your best recollection?
“A Yes, sir.” [Emphasis added.]
He also testified:
“Q Do you have, Mr. Scronce, any recollection of having removed the bolt from the gun between the second and third shot for any reason?
“A No, sir, I don’t have any recollection of doing that.”