fragments of the exploded bottle are missing and were not available for use as evidence at the trial.
This was the evidence presented by Plaintiffs to show that the bottle involved in the accident was manufactured, produced, handled or possessed by Owens. Such was clearly not substantial evidence from which the jury, without guessing, might find that Owens did manufacture, produce, handle or process the bottle which exploded. Under these circumstances, it was the duty of the Court to direct a verdict for the Defendant, Owens, and the verdict so directed was not contrary to the law, the evidence, or the weight of the evidence.
Plaintiffs' counsel referred to the recent opinion of the United States Court of Appeals for the Third Circuit in Diesbourg v. Hazel-Atlas Glass Company.
The Diesbourg case was also an action for personal injuries sustained in the explosion of a glass bottle, but in that case it was established as a fact that the bottle causing the injury 'had been made by the defendant'. This factual difference distinguishes the Diesbourg case from the present one.
The Plaintiffs contend the Court erred in refusing to admit the testimony of Joseph Grassi, by whom Plaintiffs offered to prove the general methods employed by The Scranton Beverage Company, Inc., in handling bottles, and in striking out the testimony of Dr. Joseph P. Harper, who testified that in his opinion the bottle involved here must have been negligently manufactured. Clearly this testimony was not relevant in the absence of proof that the bottle which injured Joseph G. Kamosky was manufactured, produced, handled or possessed by Owens. Even if the testimony of Dr. Harper had been relevant, it is doubtful that he possessed sufficient qualifications to testify as an expert on the manufacture of glass, because he stated that experimentally he had had very little experience with glass; that he was never in a glass testing laboratory; and that he was never in a plant that manufactured glass.
Plaintiffs also contend that the Court erred in refusing to allow cross-examination of George Drugash, supervisor in the bottle wash department of The Lion, Inc., Third Party Defendant. Counsel for Plaintiffs called George Drugash as a witness on behalf of Plaintiffs and not as an unwilling or hostile witness. In the course of the direct examination of Drugash, counsel for Plaintiffs asked a question which was objected to as leading. Counsel for Plaintiffs then stated. 'I request to call him for cross-examination.' The Court refused the request on the ground that Rule 43(b) of the Federal Rules of Civil Procedure
did not apply in this situation, as the witness was not an adverse party or an officer, director, or managing agent of a corporation which was an adverse party, and because the witness had not been unwilling or hostile during the examination but had been very frank. Counsel for Plaintiffs continued to examine Drugash, who continued to answer frankly and willingly. Even if Plaintiffs' counsel had been permitted to treat Drugash as an unwilling and hostile witness, no more certain proof as to the manufacture of the bottle involved in this accident could have been established. The Plaintiffs were not harmed by the Court's ruling.
It is the conclusion of this Court that the record shows no error in the trial which was prejudicial to the Plaintiffs and that the Plaintiffs have failed to advance any valid reasons why a new trial should be granted.
Now, March 31, 1950, it is ordered that the Plaintiffs' motion to set aside the directed verdict and to grant a new trial be, and it hereby is, denied, and the Third Party Plaintiff's motion for a new trial be, and it hereby is, denied.