McENTEE, Circuit Judge.
This is a consolidated appeal by plaintiff Rodrigues and defendant Ripley from a judgment in the amount of $15,000 pursuant to a jury verdict. Rodrigues was injured when a plastic injection heel molding machine designed and manufactured by Ripley and owned by its subsidiary, Security Heel Company, Rodrigues' employer, closed on his hand causing permanent and total disability. Rodrigues seeks a new trial, alleging errors by the trial court and challenging the adequacy of the jury's verdict, while Ripley attacks the sufficiency of the evidence to support a finding of liability against it. We affirm in all respects.
We can dispose of the latter claim in short order. Plaintiff's expert testified to three separate design defects in the molding machine,
Turning to plaintiff's appeal, we dealt comprehensively with a claim that a jury verdict was excessive in Boston and Maine R. R. v. Talbert, 360 F.2d 286 (1st Cir. 1966).
Rodrigues notes that a new trial will be granted where a verdict closely approximates the amount of special damages claimed by a plaintiff who has suffered serious injury, since the jury has evidently failed to heed the court's instructions on pain and suffering. See e. g., Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir. 1972); Schieck v. Duluth Heating and Sheet Metal Supply Co., 53 F.R.D. 401 (D.Minn.1971). However, we must bear in mind that New Hampshire adheres to a rule of comparative negligence, N.H. Rev.Stat.Ann. 507:7-a (Supp. 1973), under which the jury may diminish its verdict up to 50% if it concludes that the plaintiff's negligence was a partial cause of his injury. See Glover v. Daniels, 310 F.Supp. 750, 752 (N.D. Miss.1970). There was ample evidence from which the jury could have determined that Rodrigues was partially at fault in his mishap.
Rodrigues next advances a series of allegedly erroneous rulings by the trial court as grounds for a new trial. We note at the outset that a motion for a new trial is addressed to the sound discretion of the trial court and its decision will be reversed only where abuse of discretion is shown. Dumas v. MacLean, 404 F.2d 1062, 1065 (1st Cir. 1968). Ripley contends that plaintiff has waived these objections by failing to include them in his notice of appeal, but we need not pass on this contention since we find plaintiff's claims without merit.
Rodrigues first alleges that the court below erred in failing to submit his claim of strict liability in tort to the jury. Even if this was error we doubt that it was prejudicial. The jury concluded on the evidence that Ripley had designed the molding machine negligently. "Since proper design is a matter of reasonable fitness, the strict liability adds little or nothing to negligence on the part of the manufacturer." W. Prosser, Torts § 99 n. 72 (1971). As Rodrigues himself concedes, the two claims merge. The New Hampshire comparative negligence statute applies to claims for strict liability in tort, Cyr v. B. Offen & Co., 501 F.2d 1145 (1st Cir. 1974).
Rodrigues next attacks the court's exclusion of proffered testimony that the wiring diagram showed the molding machine was designed with a "momentary contact" emergency stop button. Such a switch must be held down continuously to keep the machine from operating and is consequently less safe than a "maintain contact" switch. The evidence was excluded on the ground that Rodrigues had failed to include this claim in his pretrial enumeration of alleged
Rodrigues next contends that the trial judge abused his discretion in refusing to order a new trial despite the possibility that the jury overheard his statement addressed to counsel at the bench that he might set aside the verdict in the event plaintiff did get one. There is no evidence beyond Rodrigues' naked assertion that the jury actually heard the remark, and his counsel failed to remind the court to poll the jury on this matter after the verdict as the judge had seemingly agreed to do. Further, the trial judge clearly instructed the jury not to try to infer his opinion of the case from any of his remarks during the trial. We think this contention is without merit.
At the view of the molding machine conducted for the jury before trial began, Ripley's counsel inserted into the mold area a bar similar to the one issued to Rodrigues for use in freeing heels lodged in the mold to indicate comparative dimensions. Ripley argued at trial that the dimensions were such that Rodrigues could not have been injured as he was had he used the safety bar to dislodge the heel caught in the mold. Rodrigues claims that this was an improper experiment at a view and urges that the trial court abused its discretion in refusing to caution the jury that the demonstration was not evidence and in denying his motion for a new trial on this ground. Although counsel may not conduct tests or experiments at a view, Chouinard v. Shaw, 99 N.H. 26, 104 A.2d 522 (1954), it is proper to direct the jury's attention to particular relevant measurements, Meyer v. Short, 104 N.H. 328, 186 A.2d 146 (1962); Flint v. Union Water Power Co., 73 N.H. 483, 62 A. 788 (1906). Even if counsel's demonstration here were construed as a test, we see no prejudicial effect. There was no dispute as to the length of the bar, and the bar that counsel used at the view was of the same length as the bar Rodrigues claims he used at the time of the accident. Cf. Chouinard v. Shaw, supra. Rodrigues testified for the first time at trial that he "choked up" somewhat on the bar, while counsel presumably did not do so at the view because Rodrigues had testified in his depositions that he had held the bar at its end. But since the deposition testimony was admissible and in fact admitted into evidence at trial anyway, it is doubtful that Rodrigues' case suffered any appreciable additional prejudice from counsel's conduct at the view.