examined each of these reasons, but believe the charge substantially outlines the law as it relates to the several issues of fact presented in this case. It is true that the language in the charge differs somewhat from that which plaintiffs assert should have been used, but the purport and effect thereof was substantially the same. Plaintiffs' nine Requests for Instructions were presented to the court after the charge was prepared and it seemed then as it does now that all of them were substantially covered.
Among the other reasons assigned by counsel for the plaintiffs was his complaint that the jury panel did not represent a cross-section of the community which fact deprived plaintiffs of a fair trial. Plaintiffs did not challenge the array of jurors or move to strike the panel prior to or during the trial. We think the challenge by plaintiffs' counsel after an adverse verdict is too late. Cf. Frazier v. United States, 1948, 335 U.S. 497, 69 S. Ct. 201, 93 L. Ed. 187; Carruthers v. Reed, 8 Cir., 1939, 102 F.2d 933; United States v. Brookman, D.C.D.Minn.1924, 1 F.2d 528.
In Dow v. United States Steel Corp., 3 Cir., 1952, 195 F.2d 478, where similar charges were made by the same counsel, the motions were made prior to trial at the call of the civil list, and were again pressed later to the trial judge before trial: 100 F.Supp. 494. Moreover, on October 10, 1952, Judge William Alvah Stewart, of this Court, in United States v. Mesarosh, D.C.W.D.Pa.1952, 13 F.R.D. 180, after a full hearing, held that the manner of selection of jurors in this district was proper.
We incorporate herein the findings and conclusions of the learned Judge in that proceeding.
Plaintiffs' counsel also charges that the jury was improperly investigated by unauthorized persons prior to the trial, which investigation resulted in a compilation of information concerning each juror. He averred that such a list was bought and sold in the corridors of this courthouse and may have been used by defendant's counsel in the selection of the jury. He states that this investigation 'constitutes an interference with the free, objective and calm consideration of the issues of fact and law in this case by the jury and deprived the plaintiffs of a fair trial. * * *'
This matter likewise was not called to the attention of the court prior to or during the trial. There was no suggestion made them or before the panel was discharged from further service that any juror impaneled in the case knew that he or she had been investigated, if such were the fact, nor did it appear at the trial that counsel for defendant had purchased the alleged list.
But notwithstanding, the same type of investigation and list was objected to by the same counsel in the Dow case cited supra, 100 F.Supp. 494, before trial, and after a full hearing conducted by Judge Owen MacIntosh Burns, on October 22, 1952 our late and lamented associate held that 'the investigation' of which counsel complained was innocuous and was not prejudicial. We see no necessity of duplicating such a hearing in this case, and therefore incorporate his findings and conclusions in this opinion. Dow v. Carnegie-Illinois Steel Corp., D.C.W.D.Pa.1952, 108 F.Supp. 88.
In the 28th and 30th reasons plaintiffs complain of the admissions in evidence of the testimony of defendant's fracture experts and the exhibits which they used to explain their opinions. We find no merit in these reasons. 'The use of expert witnesses in the trials of cases has long been recognized and the area of their testimonial service is being constantly extended. * * * 'Their proper office is to instruct the court and jury in matters so far removed from the ordinary pursuits of life, that accurate knowledge of them can only be acquired by continued study and experience; the purpose is to enable both court and jury to judge intelligently of the force and application of the facts introduced in evidence, as they would have been able to do if they had been persons properly instructed upon the subjects involved. Expert testimony, owing perhaps to the greater extent of recent scientific research, is much more frequently resorted to than formerly." Commonwealth v. Fugmann, 1938, 330 Pa. 4, 25, 198 A. 99, 110.
Without the illustrative use of the fractured bottles and the other exhibits the experts could hardly have hoped to make clear to the jury the reasons for their conclusions. The physical exhibits were a necessary part of the 'reasoning, analysis, and investigation,' by which they arrived at their opinions. Without these exhibits to compare and consider we are persuaded the jury could not have understood the opinions of the experts. See Hagan v. Carr, 1901, 198 Pa. 606, 48 A. 688; Hoffman v. Bloomsburg & S. R. Co., 1891, 143 Pa. 503, 22 A. 823. See also cases cited from other jurisdictions in Kohlhagen v. Cardwell, 93 Or. 610, 184 P. 261, 8 A.L.R. 18, State of Missouri v. Allison, 330 Mo. 773, 51 S.W.2d 51, 85 A.L.R. 479.
Plaintiffs also assigned the verdict of the jury as error. The verdict returned by the jury stated as follows:
'And now, to wit: April 29, 1952, we, the Jurors empaneled in the above-entitled case, find The defendant, The Glenshaw Glass Co. Inc not guilty, but believe evidence has been produced which points to negligence on the part of person or persons not named in this civil action #8096'
This verdict indicates very plainly that the jury found the facts in favor of the defendant. Whatever else was said in the verdict is surplusage. Standard Pennsylvania Practice, Vol. 6, page 208, § 50; Smullin v. Harenski, 1932, 106 Pa.Super 453, 162 A. 319. For what the observation of the jury is worth, however, in our opinion, they not only found that defendant was not negligent but that the minor plaintiff, a person named in this civil action, was also not contributorily negligent. Thus, if it was error to charge on the subject of contributory negligence, as plaintiffs contend,
no harm was done.
The quantum of circumstantial evidence pointing to negligence on the part of defendant or on the part of the minor plaintiff was certainly no greater than that pointing to other persons who handled the bottle after it left the control of the defendant.
In the remaining reasons assigned, we fail to find prejudicial error and we think it would not be of any material benefit to set out at length our reasons.
The motion for a new trial will be denied.