C. MERRITT WINSBY, APPELLANT,
v.
JOHN OSTER MANUFACTURING CO. AND GIMBEL BROTHERS, INC.
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A district court rule reducing the size of civil juries from twelve to six is permissible under Supreme Court precedent.
Plaintiff was required to proceed to trial before a six-man jury due to a local district court rule, despite timely objection. The jury returned a ver…
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PER CURIAM:
In this products liability suit,1 plaintiff was required, despite timely objection, to proceed to trial before a six-man jury per force of local Rule 21(C) of the United States District Court for the Western District of Pennsylvania.2 The jury returned a verdict in favor of defendants, judgment was so entered, and the court below denied plaintiff’s motion for a new trial.3 This appeal followed.
Plaintiff asserts that the Seventh Amendment to the Constitution, 28 U.S.C. § 2072, and F.R.Civ.P. 48 (see 28 U.S.C. § 2071 and F.R.Civ.P. 83) all prohibit reduction in the size of the 12-man jury in civil cases by means of a district court rule. The Supreme Court has, however, by its recent decision in Colgrove v. Battin, — U.S. -, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973) (filed June 21, 1973), resolved such doubts as to the propriety of a district court’s unilateral reduction in the size of the 12-man jury, and plaintiff’s challenge is thus foreclosed.
Plaintiff also claims that the trial court’s instructions to the jury were inadequate on the theory of strict liability, § 402A of the Restatement (Second) of Torts. On review of the charge, we find no error in this regard.
The judgment of the district court will be affirmed.
. Jurisdiction rests on diversity of citizenship, 28 U.S.C. § 1332 (1970).
. Rule 21(C) of the United States District Court for the Western District of Pennsylvania provides: “C. Civil Action Juries. In all civil jury eases the 4'ury shall consist of six members.”
. The opinion of the district court is reported at 336 F.Supp. 663 (W.D.Pa.1972).