Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
This is an appeal from a verdict and judgment for the defendant in a personal injury case brought by a minor plaintiff and her mother, the latter for loss of services. The minor, Susie Ann Sanders, suffered an injury to her eye when working as a helper in a cafeteria in Revere High School, Boston, Massachusetts. The injury was caused by the explosion of a soda pop bottle in a cooler at the place she was working at the time. The suit is against the Pennsylvania corporation which manufactured the bottle and, in turn, sold and shipped it to a Massachusetts bottler. The bottler filled the bottle and caused it to be transported to the school cafeteria where the accident took place.
The case is in federal court by reason of diversity only. The Pennsylvania rule of reference applies, and by that law the reference will be to the law of Massachusetts. Restatement, Conflict of Laws, § 379; Diesbourg v. Hazel-Atlas Glass Company, 3 Cir., 1949, 176 F.2d 410; Goodwin v. Townsend, 3 Cir., 1952, 197 F.2d 970. Massachusetts now imposes liability upon manufacturers for injuries sustained by negligent defects in the manufactured article even though there exists no privity between the injured person and the manufacturer. Carter v. Yardley & Co., 1946, 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559. The burden to show negligence in such a case is upon the plaintiff, and the fact of explosion of a bottle of carbonated liquid is not of itself sufficient to establish negligence. Ruffin v. Coca-Cola Bottling Co., 1942, 311 Mass. 514, 42 N.E.2d 259. While we have thus set out the reference to foreign law as required by Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477, we do not find, in further points to be discussed in the case, any significant questions with regard to which the choice of law becomes important.
Since the minor plaintiff had the unusual experience of being defeated in a suit for personal injuries in which all the sympathy of judge and jury would be on her side, the only course for her counsel on this appeal is to endeavor to find some error in the proceedings in the trial court which will justify a remand for a new trial. He brings us a brief of thirteen points in that endeavor. We shall not discuss all of them although all have been thoroughly examined.
Complaint is made that the trial court gave an incorrect charge on the subject of negligence. This charge was a point asked for by the defendant and was read by the judge with the comment "that point is affirmed." The language complained of reads as follows: "A manufacturer is held by law to no higher degree of skill than the fair average of his profession or trade and the standard of due care is the conduct of the average prudent man."
This point is badly phrased and it would have been a good thing if the judge had refused it.There is no such thing as care in the abstract. It is hornbook law that the care to be taken in any situation is that reasonable "under the circumstances." The second part of the point is at least theoretically inconsistent with the first part. The second part seems to put the standard as that of the average prudent man while the first part seems to put it on the general standard of manufacturers.
This court had occasion to deal with the Pennsylvania rule as to the standard of care in Diesbourg v. Hazel-Atlas Glass Company, cited above. No object is gained by repeating again what was said there.
In spite of the fact that we do not care much for this three-line statement which the defendant got the judge to "affirm" prior to his own charge to the jury in the case, we are not going to order a reversal on account of it. When the trial judge reached the subject of negligence in his own charge to the jury, he covered the matter in a highly satisfactory way. The charge was correct and it was adequate.*fn1 And on the precise point under discussion the court said: "Even if the defendant used scientific and up-to-date methods in the manufacture and inspection of bottles, so as to eliminate any defects in its production, and nevertheless such a defect occurs, you might find existence of the defect is due to carelessness or negligence, either in the manufacturing or inspection process."
The charge covered more than twenty-five typewritten pages. In view of the complete and correct exposition of the requisite standard of care which the judge himself gave, we think it would be absurd to reverse for having preceded it with a three-line statement which is at worst equivocal.
The plaintiff also complains that the judge charged the jury on contributory negligence and that he should not have done so because there was no evidence of contributory negligence in the case. This criticism comes with bad grace from the plaintiff's counsel. There were in evidence some statements made by other school children who were present in the cafeteria at the time of the accident. Some of the things said in these unsworn statements did not accord with fact statements made by the same youngsters when depositions were taken under oath sometime later. The first statements perhaps tended to show contributory negligence on the part of Susie Sanders. They were not admissible for this general purpose but only to impeach sworn testimony given later. But at the trial it was taken for granted that they were admissible generally. The plaintiff made no complaint at that time. Furthermore, the subject matter was discussed between counsel and the court after the jury had received instructions and retired. The court expressed his desire to have the matter correctly left to the jury. Counsel for the plaintiff, however, told the court he did not want to risk opening up the question again. He certainly cannot do so now. See Rule 51 F.R.C.P., 28 U.S.C.
What the court said about contributory negligence was accurate and fair and went fully into the question of whether a child of Susie's age could be guilty of negligence and all the rest of the precautions which are taken with regard to contributory negligence in children. The very most that could be said in criticism of the charge was that it was gratuitous. The plaintiff is not in a position to complain of this.
The plaintiffs make objections to some of the defendant's expert testimony. The case was one in which each side used experts. This was correct, for the subject matter was "so far removed from the ordinary pursuits of life, that accurate knowledge * * * can only be acquired by continued study and experience * * *."*fn2
Plaintiff's counsel complains that one of the defendant's experts was permitted to give an account of certain laboratory experiments in which the expert broke bottles and observed fractures. This, it is argued, was wrong because the experiments were not made under the same conditions as those surrounding the breaking of the bottle which hurt Susie Ann Sanders. But the plaintiff's own expert witness testified that he, himself, had conducted a series of tests earlier "to determine fracture patterns that are to be obtained by the different types of breaks." In other words, the plaintiff's expert had done the very thing that defendant's expert had done. Surely it is not improper for experts to base their professional opinions on experiment rather than armchair observation ...