Marshall v. Nugent

222 F.2d 604 (1st Cir. 1955)



28 U.S.C.S. Rule 51, provides that no party may assign as error the failure to give a requested 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. 28 U.S.C.S. Rule 51


Co-defendants and plaintiff cross-appealed judgments of the district court in an action alleging negligence for injuries suffered while plaintiff attempted to warn oncoming traffic of dangerous traffic condition. Three appeals arose from the judgments. The first, by defendant oil company, alleged error on grounds of lower court's refusal of motion for directed verdict at close of all the evidence as to contributory negligence as a matter of law; that defendant's acts constituted merely a condition, not a proximate cause, of harm; and employee's conduct was outside scope of employment.  The court found plaintiff acted as reasonable person to warn oncoming traffic of accident; plaintiff's injury was not remote and occurred while accident scene still existed; and oil company's employee briefly stopped while in the course of authorized journey. The court found plaintiff's contention that lower court's judgment in favor of co-defendant, driver of automobile that struck plaintiff, was proper because no evidence of substantial or prejudicial error at trial existed. The court found that defendant oil company lacked standing to assert indemnification.


Did the trial judge err in its refusal to grant the requested jury instruction?




The appellate court examined the points urged and concluded that any errors of the trial judge  if errors were made, could not possibly have had such prejudicial effect so as to justify upsetting the jury verdict and sending the case back for a new trial. The court affirmed judgment against plaintiff as jury verdict was not so decidedly against evidence as to shock conscience.

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