Dunn v. St. Louis-San Francisco Railway Company

• Decision Date: 24 January 1967
• Docket Number: 8319.,No. 8318,8318
• Parties: Mary S. DUNN, a widow, for the use and benefit of herself and Charles Thomas Dunn, Robert Allen Dunn, and Johnny Dale Dunn, minor children, surviving next of kin of Bobby C. Dunn, deceased, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a foreign corporation, Appellee. McCULLOUGH TOOL COMPANY, a corporation, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a foreign corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

370 F.2d 681 (1966)

Mary S. DUNN, a widow, for the use and benefit of herself and Charles Thomas Dunn, Robert Allen Dunn, and Johnny Dale Dunn, minor children, surviving next of kin of Bobby C. Dunn, deceased, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a foreign corporation, Appellee.

McCULLOUGH TOOL COMPANY, a corporation, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a foreign corporation, Appellee.

Nos. 8318, 8319.

United States Court of Appeals Tenth Circuit.

December 12, 1966.

Rehearing Denied January 24, 1967.

COPYRIGHT MATERIAL OMITTED

David H. Sanders, Tulsa, Okl., for appellants.

Ben Franklin, Oklahoma City, Okl. (E. D. Grinnell, Jr., St. Louis, Mo., and Franklin, Harmon & Satterfield, Oklahoma City, Okl., with him on brief), for appellee.

Before MURRAH, Chief Judge, and ALDRICH^* and HILL, Circuit Judges.

ALDRICH, Circuit Judge:

This grade crossing case in which the jury found for the railroad raises important practice questions under F.R.Civ. P. 51. The individual plaintiff is the legal representative of a passenger in a truck, owned by the corporate plaintiff, which was driven into the side of a boxcar that was either standing, or just stopping, halfway across the roadway. The time was night. Admittedly a wigwag flasher was not functioning, but, also admittedly, a trainman was standing in the road, on the truck's side, waving an electric lantern. The road, which led down from a hill, presented a 1000 feet unobstructed view of the crossing. The truck forced the trainman to jump out of the way and struck the boxcar without having reduced speed, killing both occupants.

At some time during the trial all parties filed requests for instructions. The plaintiffs' were numbered 1-24, but many contained several sentences, and even paragraphs. The defendant filed 36. Their length does not appear. At the close of the evidence, the court exhibited the requests to counsel with notations as to which ones would be given. An extensive on-the-record conference ensued in which the requests were discussed in minute detail. The court indicated certain areas in which it might reconsider, and stated that some requests would be given in substance. Each party noted its objections to a number of requests of the other that the court had accepted, and noted a blanket exception to all of its requests that the court should fail to give.

Following the charge, and before the jury retired, the court stated,

"Now, gentlemen, may it be understood for the record that all objections and exceptions which heretofore were taken by respective counsel for the parties will be considered as if they were now made at this time and entered into the record, and have the same force and effect as if repeated on the grounds heretofore given."

We strongly condemn the practice followed in this case as turning upside down the meaning and purpose of Rule 51. The requirement that the court "inform counsel of its proposed action upon requests prior to their arguments to the jury," is so that counsel may argue intelligently, and is not to provide an opportunity to take exceptions. The court may inform counsel in general terms suitable to this purpose, and need not, and we should think should not, do so in a sentence-by-sentence outline. Cf. Downie v. Powers, 10 Cir., 193 F.2d 760. If the court wishes to hear argument on any matter, we see no reason for it to be on the record.¹ Although we commend the diligence of the district court in considering how it should instruct, from an appellate standpoint the record is confusing to a degree.

The manner in which objections were sought to be preserved after the charge paid lip service to the requirements we have previously voiced, Pittman v. Harvey, 10 Cir., 261 F.2d 44, and cases cited, but defeats their purpose. We scarcely need to repeat that the purpose is at least two-fold, to make it abundantly clear to the court not only what is the party's position, but in what way the charge is believed to depart therefrom, and to give the court full opportunity to make corrections. Franklin v. Shelton, 10 Cir., 250 F.2d 92, cert. den. 355 U.S. 959, 78 S.Ct. 544, 2 L.Ed.2d 533; Cf. Hayes v. United States, 10 Cir., 238 F.2d 318, cert. den. 353 U.S. 983, 77 S.Ct. 1280, 1 L.Ed.2d 1142; Marshall v. Nugent, 1 Cir., 222 F.2d 604, 615 ("an opportunity upon second thought, and before it is too late.") The duty imposed upon counsel of "stating distinctly the matter to which he objects and the grounds of his objection" cannot normally be performed until the charge has been heard in its entirety. Usually until then it cannot be told "distinctly" to what extent a request has not been given. The court may believe that it has fully done so. As to this an a priori exception "to the extent that the request is not given in substance," meets none of the rule's requirements.² Hansen v. St. Joseph Fuel Oil Co., 8 Cir., 181 F.2d 880, 886; Cf. New York, N. H. & H. R. R. v. Zermani, 1 Cir., 200 F.2d 240, 245, cert. den. 345 U.S. 917, 73 S.Ct. 729, 97 L.Ed. 1351. In fact, we find little distinction between what happened in the case at bar and a so-called general exception to the charge, which is universally condemned. See e. g. Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 87 L.Ed. 645; Pittman v. Harvey, supra; Miller v. Delaware, L. & W. R. R., 2 Cir., 241 F.2d 116, cert. den. 354 U.S. 923, 77 S.Ct. 1384, 1 L.Ed.2d 1438; Sears v. Southern Pacific Company, 9 Cir., 313 F.2d 498, 505.

While we do not say that an objection may never be properly preserved to a charge in advance, we warn parties that there is a heavy burden upon them in such event to show that it was done with sufficient specificity and distinctness, and we caution district courts to be slow in tolerating such procedure. In particular a party may expect to find that he has not preserved any matter where the request could be thought, on the charge as made, to have been given in substance. Even after the charge, it is normally insufficient simply to refer to the requests by number. Hayes v. United States, supra, 238 F.2d at 321-22; Charles A. Wright, Inc. v. F. D. Rich Co., 1966, 1 Cir., 354 F.2d 710, cert. den. 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673. And, finally, we warn counsel that even if the district court acquiesces in a procedure which is insufficient, a party may find that his rights have not been preserved. Allen v. Nelson Dodd Produce Co., 10 Cir., 207 F.2d 296.

In the case at bar the alleged errors in the instructions are so insubstantial that we prefer not to leave them undiscussed, particularly in the light of the seriousness of the case. We do not pause over plaintiffs' criticisms of the court's alleged overuse of the term proximate cause. The issue here is not whether, legalistically, the court was technically accurate in its use of language, but is whether, from a layman's standpoint, the charge understandably and correctly explained to the jury how to decide the issues. We are satisfied that it did. Nor are plaintiffs correct in their contention that the court did not adequately instruct on the difference between what would be negligence by the driver and by the passenger. We turn, accordingly, to the matter which occupied most of the oral argument, the assertion that the instructions were inconsistent.

It was plaintiffs' position, which the court accepted, that the failure of the wig-way to operate was an "invitation" to cross the...