The complaint of the plaintiff as to the charge of the court on contributory negligence is without merit. Pierro v. Carnegie-Illinois Steel Corp., 3 Cir., 186 F.2d 75.
Plaintiff's contention that the Court erred in refusing to admit evidence on the subject of how barge rails became loose or broken appears highly spurious and unsound. The tendency of rails to break, it would seem to this court, is a subject far afield and irrelevant to a determination of whether the rail in question actually did break. Assuming, however, that the Court was in error in refusing to admit such collateral testimony, the plaintiff, himself, testified that the rail in question did break and gave way, so that the exclusion of the sought-after generalized testimony of the tendency of rails to break, in no way could have been prejudicial to plaintiff's case.
The Court is asked to set aside this verdict because the jury was permitted to weigh the testimony of two defendant witnesses who had, prior to trial, issued statements in contradiction to their testimony.
It is my judgment that the veracity of the testimony of any witness is squarely for the jury's determination. Any inconsistent writings or utterances were introduced in evidence or testified to in rebuttal, and the jury was free to weigh all these elements in their deliberations.
The choice of conflicting versions of the way the accident happened, the decision as to which witness was telling the truth, the inferences to be drawn from uncontroverted as well as contraverted facts, are questions for the jury. Tennant v. Peoria & P.U.R. Co., supra.
Finally, plaintiff challenges the array of the jurors on the thesis that important elements of the community such as naturalized foreign born citizens, negroes, veterans, labor people and others are deliberately excluded, and that jurors were subjected to improper investigation.
In order to appreciate the circumstances and timing of this objection, it is necessary to be acquainted with preliminary matters relating to the selection of this jury.
Prior to the time that this proceeding was scheduled for trial, the Court had entertained a motion by plaintiff's counsel to strike the jury panel in the case of Dow, Adm'x v. United States Steel Corp., 3 Cir., 195 F.2d 478. The Court had conducted an exhaustive analysis of the jury panel and had prepared its opinion denying said motion. At the time that the present proceeding had arisen for trial, an appeal on the Dow case was pending before the Third Circuit Court of Appeals. Since the determination of the Court of Appeals would necessarily affect any verdict of the jury panel in question where a challenge to its array had been lodged, my administrative assistant advised plaintiff's counsel that should he desire to challenge the jury panel in the proceeding then arising, that the Court, as a matter of practical necessity, would be required to continue the case pending the determination of the United States Court of Appeals to the challenge of the jury panel in the Dow case. Accordingly, plaintiff's counsel agreed to proceed without any such challenge.
Furthermore, it is important to note that for many years the accustomed procedure for the interrogation of prospective jurors in the Western District has involved interrogation of such persons by the Clerk of Courts or his assistant, in the presence of opposing counsel. Despite such long established procedure, plaintiff's counsel demanded the privilege of conducting his own examination. In order to eliminate any possible confusion the Court, on its own initiative, adopted the most unusual and unprecedented method in this district of conducting its own interrogation in open court. Upon the conclusion of its interrogation, having in mind the discussion which had previously ensued between plaintiff's counsel and the court's Administrative Assistant, the Court specifically asked plaintiff's counsel if he had anything else in mind, or wish to submit any further matters or objections to which he categorically replied, 'No.'
Since the challenge to the array of jurors is presented after the verdict has been rendered, it is untimely and must be refused. Francis v. Southern Pacific Co., 333 U.S. 445, 68 S. Ct. 611, 92 L. Ed. 798.
Assuming that this Court were in error in its conclusions as to the untimeliness of plaintiff's challenge to the array of jurors, the substantive arguments presented in this respect have been reviewed in a most exhaustive and complete hearing before may late associate, Judge Owen M. Burns, who has ruled that counsel for plaintiff has completely failed to show any type of 'surveillance' or intimidation of any juror. Dow v. Carnegie-Illinois Steel Corp. D.C., 108 F.Supp. 88.
In addition, my associate, Judge William Alvah Stewart, filed a comprehensive opinion in the case of United States of America v. Mesarosh, D.C., 13 F.R.D. 180, wherein he recognized the propriety of the manner in which the challenged jury panel was selected, and was conclusively satisfied that said panel represented a cross-section of the community.
Finally, my associate, Judge Rabe F. Marsh, Jr., disposed of these complaints in Sanders v. Glenshaw Glass Company, Inc., D.C., 108 F.Supp. 528.
I am in complete accord with these determinations.
Motion for new trial is refused.
An appropriate Order is entered.
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