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Larkin vacated a citation and a notification of penalty issued by the Secretary of Labor to respondent. \u00a0The citation alleged a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 651 et seq.(hereinafter \u201cthe Act\u201d), for noncompliance with 29 C.F.R. Sec. 1926.652(b). The citation was timely contested by respondent, and the Secretary thereupon issued his complaint. \u00a0\u00a0 \u00a0 \u00a0 \u00a0 Before the hearing, the Secretary moved to amend his complaint to allege in alternative noncompliance with 29 C.F.R. Sec. 1926.652(c). \u00a0This motion was granted by Judge Larkin at the hearing. 1\u00a0 At the close of the Secretary\u2019s case, the Judge ruled that the citation must be dismissed for lack of proof. \u00a0This ruling was reiterated in his opinion of April 2, 1975. \u00a0On May 2, 1975, we granted the Secretary\u2019s petition for discretionary review and invited submissions on the issues raised herein. \u00a0These include whether the judge erred in determining that a compliance officer was not qualified as an expert in soil mechanics and that the Secretary of Labor failed to prove that the soil involved was unstable or soft. \u00a0We reverse and remand.\u00a0 \u00a0 \u00a0 \u00a0 On August 27, 1974, compliance officer Billy Layton conducted an inspection of respondent\u2019s trenching operations in Montgomery, Alabama. \u00a0He observed two of respondent\u2019s employees working in a trench. \u00a0The trench was thirty feet long, thirty inches wide and varied in depth from 6 feet to 6.5 feet. \u00a0The sides were vertical and unshored. \u00a0\u00a0 \u00a0 \u00a0 \u00a0 At the hearing, the only issue in serious dispute was the nature of the soil. \u00a0The respondent was represented by its president. \u00a0The Secretary\u2019s only witness was compliance officer Layton. \u00a0Mr. Layton testified that he picked up \u00a0some of the soil to ascertain its characteristics. \u00a0At that point the Judge refused to allow the compliance officer to testify to what happened and what he felt when he picked up the soil. \u00a0The Judge ruled that before Mr. Layton could testify further, his qualifications as an expert in soil textures had to be established. \u00a0The Secretary thereupon questioned the compliance officer to establish his qualifications. \u00a0After hearing this evidence, the Judge ruled that the witness was not qualified as an expert in soil textures, and therefore could neither describe the texture of the soil, nor give his opinion of the soil\u2019s stability or instability. \u00a0The Secretary then was, however, allowed to make the following testimonial proffer:\u00a0Q. \u00a0 \u00a0 \u00a0 \u00a0 Would you state-you understand this is not testimony as such, but it\u2019s a proffer if you were permitted to testify what you would testify about the soil.A.\u00a0 \u00a0 \u00a0 \u00a0 Okay. \u00a0I walked up ant taken a handful of soil. \u00a0It was sticky, it was fresh dug and had raid two or three days before. \u00a0And it was just, would ball up in your hand. \u00a0It wouldn\u2019t pour through, it was a ball of material. \u00a0And it was of clay consistency of some tyle, and it was some sand in it. \u00a0And apparently at that point, it where they was digging was a fill due to the fact that it was red and then all of a sudden jumped into a black layer of material that looked to me like it had been some backfill on that corner right there where they were digging. \u00a0And in the trench and that is about as much as I can say about the physical condition of the soil at that point. \u00a0Q.\u00a0 \u00a0 \u00a0 \u00a0 You are talking about the balled up mean it was soft or hard or what?A.\u00a0 \u00a0 \u00a0 \u00a0 Oh, yes. It was soft. As I say, it had rained two or three days previously to that, and you can take soil and it would gum up and become a ball. \u00a0It wouldn\u2019t push through your hands, it wasn\u2019t dry.Q.\u00a0 \u00a0 \u00a0 \u00a0 Where did you obtain the soil from? A.\u00a0 \u00a0 \u00a0 \u00a0 Right along the side of the trench on the \u2013 at the\u2014from the spoil.\u00a0 \u00a0 \u00a0 \u00a0 At the close of the Secretary\u2019s case, the Judge suggested to respondent\u2019s president that a motion for a \u201cdirected judgment\u201d2 be made. \u00a0The respondent\u2019s resulting motion was granted by the Judge because the Secretary\u2019s only evidence of soil conditions was excluded, and the Secretary had accordingly failed to establish a \u201cprima facie\u201d case.\u00a0 \u00a0 \u00a0 \u00a0 On review, the Secretary does not argue that the compliance officer was an expert in soil mechanics. \u00a0Instead, he maintains that the compliance officer\u2019s testimony was a mere recitation of sensory perception, and alternatively, that even if the proffered testimony contained opinion, it was nevertheless admissible. \u00a0\u00a0 \u00a0 \u00a0 \u00a0 We agree with the Secretary. \u00a0With some minor but arguable exceptions, the compliance officer merely recited what he perceived when he picked up the soil. \u00a0To him, it was \u201csticky,\u201d \u201csoft\u201d; it \u201cwould gum up\u201d and \u201cwasn\u2019t very dry.\u201d \u00a0He observed that it contained sand, and had the consistency of clay. \u00a0Arguably, even though observations were somewhat conclusory, but, the definition of opinion is not so strict as to render them inadmissible. \u00a0See Allen v. Matson Navigation Co., 255 F.2d 273, 278 (9th Cir. 1958) (floor was \u201cslippery,\u201d held admissible.\u00a0 \u00a0 \u00a0 \u00a0 In any event, even the opinion of a layman may be admissible in certain circumstances. \u00a0The true basis for the opinion rule is to exclude evidence that offers no assistance to the finder of fact. \u00a07 Wigmore Sec. 1918 (3d Ed. 1940). McCormick, Evidence Sec. 11 at 25 (2d ed. 1972). \u00a0See generally, Allen v. Matson Navigation Co., 255 F.2d 278-280 (dictum). \u00a0The leading authorities have therefore concluded that even opinion is admissible where it will offer assistance in the search for truth. \u00a0The product of their studies have been succinctly restates in Rule 701 of the Federal Rules of Evidence:Opinion Testimony by Lay WitnessIf the witness is not testifying as an expert, his testimony is in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or determination of a fact in issue.\u00a0See also, Advisory Committee\u2019s Note to Fed. R. Evid. 701.3 \u00a0Here it is readily apparent that the compliance officer\u2019s testimony is indeed helpful in the resolution of a material issue and is based on his personal knowledge. \u00a0Under these circumstances, the compliance officer could have ventured his opinion of both the soil\u2019s textures, and drawn inferences as to its stability. \u00a0See Fed. R. Evid. 704 and Advisory Committee\u2019s Note.4 \u00a0We therefore conclude that the Judge erred in excluding the proffered testimony.5\u00a0 \u00a0 \u00a0 \u00a0 The excluded testimony of the compliance officer clearly establishes that the soil was soft, wet and had the consistency of clay and contained sand and backfill. \u00a0Chairman Barnako and I find that this evidence is sufficient to establish that the soil was unstable or soft within the meaning of 29 CFR secs. 1926.652(b) and 1926.653(q).6 \u00a0See Puterbaugh Enterprises, Inc., 9 OSHARC 718. BNA 2 OSHC 1030, CCH1973074 SOHD para 18,158 (No. 1097, July 1, 1974). \u00a0It is my view that even if the proffered testimony had not established that the soil was soft, it definitely establishes that the trench was not dug in solid rock, hard shale or hard slag. \u00a0As we noted in Puterbaugh, supra, Table P-2 suggests shoring for all soils except these. \u00a0Thus, I would find that the evidence of record supports a finding of noncompliance with 29 CFR Sec. 1926.652(c), which was pleaded in the alternative. \u00a0That provision requires shoring or other means of support in trenches dug in hard or compact soil. \u00a0Chairman Barnako, however, does not agree that the evidence presently of record shows a failure to comply with section 1926.652(c). \u00a0In this case, he relies on Old Forge Construction Co. \u00a0BNA 4 OSHC 1049, CCH 1975-76 OSHD para. 20,545 (No. 3491, March 26, 1976). \u00a0Because Commissioner Moran would also vacate the section 1926.952(c) matter, we reverse and remand so that respondent may present his evidence bearing on the 1926.952(b) allegations only, and if further evidence is received, for the entry of further findings of fact and conclusions of law. \u00a0The section 1926.652(c) allegations are vacated. \u00a0 \u00a0 \u00a0 \u00a0 It should be noted, however, that a remand could have been avoided. \u00a0When the respondent moved at the close of the Secretary\u2019s case for, in effect, an involuntary dismissal, \u00a0under Fed. Civ. P. R. 41(b), the Judge immediately granted the motion. \u00a0The respondent therefore did not present any evidence. \u00a0This method of disposition should be avoided. \u00a0In view of the closeness of the evidentiary questions, the preferred practice would have been to reserve a ruling on the Rule 41(b) motion until all the evidence had been presented. \u00a0The apt comment of the Chief Judge Brown of the Fifth Circuit \u00a0on this state of affairs is instructive:From an administrative standpoint, this process of disposition under F.R.Civ.P. 41(b) is patently unsatisfactory. There has been a partial trial, followed by an appeal and reversal. There must now be a second trial, or at least another partial trial,7 and still more appellate consideration may be sought in the future. In this short, uncomplicated case it would have been a simple matter indeed for the District Court to carry the defendant’s Rule 41(b) motion with the case, let the defendant put on his evidence, and enter final judgment at the close of the evidence.8 Not much time would have been lost, and if one or both of the parties had sought appellate review, the entire case would have come before this Court at one time rather than in piecemeal fashion.\u00a0White v. Rimrock Tidelands, Inc., 414 F.2d 1336, 1340 (5th Cir. 1969). \u00a0Except in unusually short, clear, and uncomplicated \u00a0cases, (as where the Secretary\u2019s case is clearly inadequate) the Judge should carry the Rule 41(b) motion with the case (or simply deny it, since the effect will be the same), await a renewed motion to dismiss and then enter a final order at the close of all the evidence. \u00a0Riegel Fiber Corp. Anderson Gin Co., 512 F.2d 784, 793, n. 19 (5th Cir. 1975). \u00a0And, once a ruling has been reserved, as it should in most of our cases, the Judge must consider the entire record in deciding the case on the merits. \u00a0\u00a0A.P. Hopkins v. Studebaker Corp., Onan Div., 496 F. 2d 969, 971 (6th Cir. 1974). \u00a0See also, Walden Co. V. Schwey, 482 F.2d 550, 552 (5th Cir. 1973). \u00a0 \u00a0 \u00a0 \u00a0 The case is therefore remanded for further proceedings not inconsistent with this \u00a0opinion.So Ordered.Dissenting OpinionMORAN, Commissioner, dissenting. \u00a0\u00a0 \u00a0 \u00a0 \u00a0 This case depends exclusively upon a credibility determination made by the Judge who presided at the trial. \u00a0The only issue was the stability of the soil in which the trench had been excavated. \u00a0Complainant offered only one witness-and that witness clearly lacked any qualifications as a soil expert. \u00a0It was the Judge\u2019s finding that \u201cthe Secretary failed to prove that the soil at issue was \u2018unstable or soft material\u201d as specified in 29 CFR Sec. 1925.652(b) or was \u2018hard or compact\u2019 soils as specified in 29 CFR Sec. 1926.952(c). The Secretary failed to establish a prima facie case under either regulation\u2026\u201d. \u00a0There is nothing in the record before this Commission which warrants a different conclusion from that reached by the Judge in his decision.7 \u00a0The reversal of the Judges finding by Messers. Barnako and Cleary I simply another in their series of determinations designed to give the Secretary of Labor a second chance to prove his case whenever he loses before \u00a0the Judge. \u00a0Never have these two gentlemen given an employer who has lost before a Judge a similar second chance.\u00a0 \u00a0 \u00a0 \u00a0 Even if complainant\u2019s offer of proof were accepted as credible testimony, a prima facie case has not been established. \u00a0In the testimony proffered, the inspector explained that his examination of the soil consisted solely of squeezing one handful. \u00a0He described his impressions of the soil this derived as \u201cof a clay consistency, of some type\u201d that \u201cwould ball up in your hand,\u201d \u201cwouldn\u2019t pour through,\u201d and \u201cwasn\u2019t dry.\u201d \u00a0He then concluded , with little explanation, that the soil of this description was \u201csoft.\u201d\u00a0 \u00a0 \u00a0 \u00a0 Such a conclusion is not supported by the witness\u2019 observation. \u00a0His factual comments support, in fact, a conclusion that the soil was not soft.\u00a0 \u00a0 \u00a0 \u00a0 As noted by the Judge, assessing the composition of soil by squeezing is a difficult determination. \u00a0The inspector\u2019s education in soil analysis consisted of attendance at a four hour lecture and by observing slides of soils for 1 \u00bd to 2 hours during a seminar. \u00a0To find an opinion founded on such limited background adequate to sustain a violation, particularly in the face of facts indicating a contrary conclusion, strikes me as neither prudent nor fair.\u00a0 \u00a0 \u00a0 \u00a0 Furthermore, the evidence is also inadequate to establish a violation of \u00a029 C.F.R. Sec. 1926.652(c)8, a standard that pertains to hard or compact soils which respondents charged with violating in the alternative. \u00a0The standard requires sloping only above the five foot level at a \u00bd to 1 ratio. \u00a0The inspector\u2019s measurements of the depth of this trench ranged from 6 feet to 6\u20196\u201d. \u00a0This only a 6 to 9 inch widening at the top was necessary to comply with the standard. \u00a0Although the inspector testified that the sides of the trench appeared to be vertical, there was no indication that a measurement of width of the trench at the five foot level was made. \u00a0Considering the Small amount of sloping required, an estimate based solely on the naked eye is insufficient to establish a violation. \u00a0Secretary v. Old Forge Construction Co., Inc. OSAHC Docket No. 3491 [4 BNA OSHC 1049], March 26, 1976.\u00a0 \u00a0 \u00a0 \u00a0 Detracting still further from complainant\u2019s case is the fact that the upper portion of the trench for a distance of several inches consisted of macadam and paving blocks. \u00a0Such material is equivalent to rock or cemented lime in which not sloping or shoring is required by two tables appearing in 29 C.F.F. Sec. 1926.652.\u00a0 \u00a0 \u00a0 \u00a0 It should be noted, in addition, that it appears that Commissioner Clary would find respondent in violation of Sec. 1926.652(c) because respondent did not shore this trench. \u00a0This position is difficult to comprehend in view of the fact that Sec.1926.652(c) specifies that an employer may elect to slope above the five foot level in hard and compact soil in lieu of shoring. \u00a0Quite obviously, the specifications for shoring must be met only when shoring is elected as the method of compliance. 1\u00a0The respondent did not object to the motion, and the propriety of the Judge\u2019s action in this regard is not before us.2\u00a0We take this to be a motion for an involuntary dismissal under Fed. R.Civ.P. 41(b).3\u00a0Though the instant hearing was held before the Federal Rules of Evidence took effect, we apply the Rule as a subsequent restatement of the best learning and more modern case law. \u00a0The Rules became effective on July 1, 1975. P.L. 93-595; 88 Stat. 1926.4\u00a0The weight ascribed to this testimony may vary, of course, because a \u201cdetailed account carries more conviction than the broad assertion \u2026\u201dAdvisory Committee\u2019s Note to Fed. R. Evid, 701.5\u00a0We do not reach the question of whether the compliance officer was qualified as an expert witness. \u00a0On review, the Secretary no longer pursues this point.6\u00a0These sections read as follows:Sec. 1926.652 Specific trenching requirements***(b) Sides of trenches in unstable or soft \u00a0material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped or otherwise supported by means of sufficient strength to protect employees working within them. \u00a0See Tables P-1, P-2 \u2026 [Emphasis added.]Sec. 1926.653(q) Definitions applicable to this subpart(q) \u201cUnstable soil\u201d -Earth material, other than running, that because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring.Table P-1 states that \u201cclays, silts, loams or non-homogeneous soils require shoring and bracing.\u201d\u00a07\u00a0A copy of the Judge\u2019s decision is incorporated herein by reference and attached hereto as Appendix A. [omitted].8\u00a0This standard provides:Sec. 1929.652(c). \u00a0slides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench ins more than 5 feet in depth and 8 feet or more in length. \u00a0In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse but shall not be steeper than a 1-foot rise to each \u00bd foot horizontal. \u00a0When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.”