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Alexander v. Kramer Bros. Freight Lines, Inc. - 273 F.2d 373 (2d Cir. 1959)

Rule:

Fed. R. Civ. P. 51 provides, in pertinent part, that 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 which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

Facts:

Appellees, driver and owner, sued appellant freight line for negligence arising from a truck collision. Appellant sought review of an adverse judgment on grounds that the jury charge as to the burden of proof of contributory negligence was erroneous. The district court noted that Fed. R. Civ. P. 51 required parties to make objection to jury charges on the record before the jury retired for the verdict. Appellant claimed it was excused from complying with Rule 51 because it took exception during a colloquy near the close of appellees' case to the lower court's statement that the burden of proof rested with appellant when, in fact, New York law placed that burden on appellees.

Issue:

Was there an improper jury charge as to the burden or proof of contributory negligence?

Answer:

No.

Conclusion:

The judgment in favor of appellees, driver and owner, in their negligence suit against appellant freight line was affirmed. According to the court, appellant could not complain of an improper jury charge as to the burden of proof of contributory negligence because it failed to timely and formally object before the jury retired to deliberate. A rehabilitative witness was properly excluded after appellant's driver was impeached during cross-examination.

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