The opinion of the court was delivered by: TROUTMAN
In this products liability action, plaintiff, Arthur Fierro, sustained severe and permanent injuries to his left hand, while working with a machine manufactured by Ruesch Corporation, during the course of his employment at Reading Industries. The accident occurred while the plaintiff was cleaning the marking rolls of the Ruesch machine as he had done "countless times" since he first operated the Ruesch in 1964. (N.T. of 9/26/84 at 59). Plaintiff's task with respect to the Ruesch was to feed coils of pipe into the machine which drew the pipe through four sets of rollers, the last of which imprinted the Reading Industries logo and type of pipe, indicated by a letter designation, upon the finished product. There were two marking rollers, one rotating clockwise, the other counter-clockwise, which came close together creating a nip or pinch point. From time to time as the pipe passed through the marking rolls, a "glob" of dirt would appear on the pipe at the point of the logo, indicating to Fierro that dirt or grease had been deposited on the marking rolls. (N.T. of 9/26/84 at 58). When that occurred, plaintiff would clean the marking rolls by holding a rag against the roll which rotated in a clockwise direction. (Id.).
On August 27, 1981, while engaged in that procedure, plaintiff's hand was drawn into the pinch point and crushed. Plaintiff has been unable to work since the accident and continues to experience pain, disfigurement and psychological distress because of it.
The complaint alleged causes of action based on negligence, breach of warranty and strict liability. However, plaintiff pursued only the strict liability claim. Following a seven-day trial, the jury returned a general verdict for the defendant. Plaintiff now requests a new trial, arguing:
1. that the Court improperly refused to charge the jury that the evidence could not support a finding of assumption of the risk;
2. that the Court improperly denied plaintiff's motion to excuse two members of the jury panel for cause;
3. that the Court improperly received testimony which the plaintiff characterizes as irrelevant, prejudicial, misleading and confusing.
We will consider plaintiff's contentions in the order in which they were raised.
I. Assumption of the Risk
While he now assigns as error this Court's refusal to charge the jury in that manner, plaintiff did not press the point during the trial. In fact, plaintiff submitted five additional points for charge on assumption of the risk, all of which were affirmed and four of which were read verbatim as part of the jury charge. Moreover, to one of defendant's three proposed points on the issue plaintiff had no objection whatsoever, to another he objected only insofar as it was not a complete statement of the law, and as to the third, he objected only to some of the language.
(N.T. of 10/4/84 at 62, 63). As modified, defendant's points along with four of those submitted by plaintiff constituted the entire charge with respect of assumption of the risk. No objection by the plaintiff was recorded when the Court ruled on the points, (N.T. of 10/3/84 at 76-79), when the Court asked if there were exceptions to the charge, (N.T. of 10/4/84 at 68-70), or when the Court twice reread the portion of the charge which dealt with assumption of the risk in response to the jury's questions. (N.T. of 10/4/84 at 80-82 and 10/5/84 at 2-4).
Thus, the record amply supports defendant's contention that the Court's refusal to direct a verdict for plaintiff on this issue was not sufficiently preserved under Fed. R. Civ. P. 51, which reads in pertinent part:
No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to ...