Moore v. Louisville & Nashville Railroad Company

• Decision Date: 08 June 1955
• Docket Number: No. 15447,15448.,15447
• Citation: 223 F.2d 214
• Parties: James MOORE, Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Inc., Appellee. Lee HILL, Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

223 F.2d 214 (1955)

James MOORE, Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Inc., Appellee.

Lee HILL, Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Inc., Appellee.

Nos. 15447, 15448.

United States Court of Appeals Fifth Circuit.

June 8, 1955.

Albert S. Gaston, Douglas Stanard, Mobile, Ala., for appellants.

Charles B. Arendall, Jr., W. B. Hand, Mobile, Ala., Smith, Hand, Arendall & Bedsole, Mobile, Ala., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.

HUTCHESON, Chief Judge.

Brought separately but consolidated for trial, each of the suits was for damages alleged to have been sustained by the plaintiff in a crossing collision between the automobile in which he was riding as a gratuitous passenger and the locomotive of a railroad train operated by the defendant.

The claim in each suit was that the defendant's train was at and prior to the collision being negligently operated and as a proximate result thereof the plaintiff was injured and damaged in the amount sued for.

The defenses to each claim were a denial of the charges made against defendant and a claim on its part that the plaintiff was himself guilty of negligence which proximately contributed to cause his injuries.

The causes were tried on the issues thus joined, and defendant's motion to direct a verdict for it and plaintiffs' motions to strike the defense of contributory negligence for want of evidence denied, they were submitted to the jury on an oral charge, to which no exception was taken. A verdict and judgment in each case for the defendant followed, and plaintiffs have appealed.

Here, under twenty-three numbered points, appellants put forward three general grounds of error. As detailed they are: (1) Points 1 and 2, the admission in evidence of photographs offered by the defendant;¹ (2) Points 12 to 17, inclusive, take the form of general propositions, that the court should charge the jury as requested in the special charges dealt with in the other points; Points 3 to 8, inclusive, and Points 12 to 23, inclusive, deal with claimed errors in refusing to give charges requested by plaintiff;² and (3) Points 9, 10 and 11, the submission to the jury of the question of contributory negligence.³

Appellee counters these claims of error with the insistence: (1) that upon the record made there was no error in admitting the photographs; (2) that the court properly and fully instructed the jury in a charge to which no exception was taken, and that it committed no error in ruling on appellants' requested charges; and (3) that, upon the record and under settled Alabama law, the court did not err in submitting the issue of plaintiffs' contributory negligence. In addition it puts forward as a counter claim of its own that the court erred in refusing defendant's motion to instruct a verdict in its favor.

For the reasons hereafter briefly stated, we are of the opinion that the appellee has the right of it and that the judgment must be affirmed. In so far as appellants' attack upon the judgment is based upon the claim that as matter of law the jury should have found the defendant negligent, its attack must fail because appellants did not move for an instructed verdict on that issue, but submitted the case to the jury without doing so, and under settled law,⁴ the question of the sufficiency of the evidence to support the jury's finding that the defendant was not negligent is not before us for decision. We must approach the decision of the case, therefore, from the basic premise that the jury's finding, that the defendant was not guilty of negligence, may not be challenged here, and the judgment must, therefore, be affirmed unless there was procedural error in the course of the trial, either in the form of rulings on evidence or in the refusal of requested charges which affected that finding. Further, since appellants made no objection and took no exception to the general charge of the court, it must be assumed by us that, except to the extent that one or more of the plaintiffs' requests which were refused by the court were erroneously and prejudicially refused, the case was properly submitted to the jury. For, under Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A., a litigant may not complain of a charge unless he has specifically pointed out the error and given the court an opportunity to correct it.

With these basic rules in mind, we turn to the claimed errors to take up first the admission of the photographs. While this, if erroneous and prejudicial, would go to the whole case, we are in no doubt that there was no error in admitting them. In the first place, the admission of this kind of evidence is largely within the discretion of the court. Dunn v. Jefferson Standard Life Ins. Co., 5 Cir., 123 F.2d 815; Morgan v. Sun Oil Company, 5 Cir., 109 F.2d 178; Rule 61, Federal Rules of Civil Procedure, and under the evidence in this case it was well within the court's discretion to admit them. City of Anniston v. Simmons, 31 Ala.App. 536, 20 So.2d 52; Kortz v. Guardian Life Insurance Co., 10 Cir., 144 F.2d 676; Wigmore on Evidence, Sec. 792-3.

Of the claimed errors in refusing to give to the jury plaintiffs' requested charges 6 and 7, dealing with the question of allowable damages, it is sufficient to say, that since they deal with damages only, they could not have affected the jury's determination of liability and if error, the error was harmless, and, in addition, the court's charges, including the charges given at plaintiffs' request amply submitted this issue to the jury.

As to charges 12, 13, 14, 15 and 16, since we agree with the appellee that these charges were more than adequately covered by the court's oral instructions, it will serve no useful purpose for us to analyze each of the charges to determine whether it was in itself a correct statement of the law, for it is well settled that a court is not required to repeat instructions on particular phases, indeed it should not do so. Home Insurance Co. of New York v. Tydal, 5 Cir., 152 F.2d 309; L. A. Wood & Co. v. Taylor, 5 Cir., 154 F.2d 548. This is particularly so where, as here, the plaintiff has made no objection to the general charge and has not, as required in Rule 51 of the Federal Rules of Civil Procedure, pointed out wherein charges requested but not given are necessary to supply omissions in the general charge which were not pointed out and objected to. Cf. Alcaro v. Jean Jordeau, Inc., 3 Cir., 138 F.2d 767; Flint v. Youngstown Sheet & Tube Co., 2 Cir., 143 F.2d 923; Hower v. Roberts, 8 Cir., 153 F.2d 726. The same observations apply equally to the claimed errors of the court in refusing to give plaintiffs requested charges 20, 21, 22, 23, which are mere copies of the statutory language in Sections 170, 171, 172 and 173 of Title 48 of the Code. In addition, we agree that the giving of such abstract statements...