The opinion of the court was delivered by: MARSH
On October 8, 1947, a glass bottle containing carbonated beverage exploded and a small piece of the glass struck the minor plaintiff in the left eye. As a result, the eye was subsequently removed. The bottle was one of a number which had been manufactured by the defendant company at its plant in Allegheny County, Pennsylvania. The bottles had been sold and transported to a bottler at Revere, Massachusetts, who had filled them with carbonated beverages under pressure, placed them in cases and delivered the cases by truck to the basement of Paul Reverse School in Revere. About 9:00 o'clock in the morning, two boys carried about four or five cases to a cafeteria also located in the school, and placed the bottles in a cooler. Chunks of ice were placed on and around the bottles. The minor plaintiff, then about eleven years of age, was helping to serve behind the counter of the cafeteria. Shortly after 12:00 o'clock noon a customer ordered a certain flavor of the beverage from the minor plaintiff. It was disputed whether the bottle exploded after plaintiff lifted the top of the cooler and before she touched any of the contents therein, or at the time she replaced a bottle in the cooler after it had been rejected by the customer.
This testimony was the only direct evidence of negligence on the part of the defendant and it was submitted to the jury over the defendant's strenuous objection. Its admissibility is subject to serious doubt as it appears to be an opinion of a fracture expert which was not based upon his special knowledge and study of the subject of fractures. A lay witness, if permitted, could have given the same opinion to the jury, as it would be a matter of ordinary observation that if a bottle were handled carefully from the time it was made until it exploded under ordinary pressure in an ice cooler, there would be a defect in the glass, and it would not require a fracture expert or any other kind of expert to draw this conclusion.
An examination of plaintiffs' evidence in our view of the requirements of the law of Massachusetts
leads us to the conclusion that a case of negligence was not made out against the defendant, and that the motion of the latter for a directed verdict should have been granted. In a similar action in Massachusetts against a bottler the court stated: 'Other than the 'explosion' there was no evidence that would warrant the jury finding that the bottle in question was not properly constructed * * *.' Judgment was directed for the defendant: Ruffin v. Coca-Cola Bottling Co., 1942, 311 Mass. 514, 42 N.E.2d 259, 260. See also Shearman and Redfield on Negligence, Vol. 1, § 46.
But assuming that there was sufficient evidence of negligence to take the case to the jury, that body found the facts in favor of the defendant and agreed with the opinion of its fracture experts that the cause of the explosion was an impact or impacts on the neck of the bottle, and that it did not explode due to a defect resulting from negligence in its construction or inspection.
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.
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 ...