Iannacito v. Denver & Rio Grande Western Railroad
| Decision Date | 28 June 1967 |
| Docket Number | No. 8743.,8743. |
| Citation | 380 F.2d 1019 |
| Parties | John IANNACITO, Appellant, v. DENVER & RIO GRANDE WESTERN RAILROAD, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Harvey P. Wallace, Denver, Colo., and Eugene A. Rerat, Minneapolis, Minn., of counsel, submitted a brief for appellant.
John S. Walker, Jr., Ernest Porter and K. D. Barrows, Jr., Denver, Colo., submitted a brief for appellee.
Before MURRAH, Chief Judge, and PICKETT and BREITENSTEIN, Circuit Judges.
This appeal is from a judgment entered on a jury verdict for the defendant in a suit under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60. The only claim of error relates to the instructions.
Appellant-plaintiff was a carman employed by the appellee-defendant railroad. In 1961, while inspecting a train he twisted his ankle. Subsequently he developed back pains which continue to prevent him from working. He claims that the railroad was negligent in failing to provide a safe place to work. Nine doctors of varying specialties testified as to examinations of the plaintiff, some before and some after the claimed accident. There is no serious dispute over the diagnosis that his physical incapacity was caused by a disabling traumatic neurosis. The question is whether this condition had any connection with any negligence on the part of the railroad.
The statute imposes liability for injuries "resulting in whole or in part from the negligence" of the employer.1 The plaintiff says that under this language the defendant's negligence need contribute only in part to plaintiff's injury and it is error to instruct that the defendant's negligence must be "the" proximate cause of injury.2 The plaintiff requested the instruction suggested by Judge Mathes for F.E.L.A. cases.3
The trial court gave the proximate cause instruction which was standard in its district for ordinary negligence cases. It told the jury that under the statute the railroad was liable "for injuries resulting in whole or in part from the negligence" of the railroad. Additionally, the jury was charged that:
"Now if, however, you find that the plaintiff has sustained this burden of proof to establish lack of ordinary care in providing a safe place to work, then you should next consider whether or not the defendant\'s negligence was a proximate cause in whole or in part of the accident which occurred on December 4th of 1961; and, whether or not that accident was a proximate cause in whole or in part of any injuries or disabilities to the plaintiff." (emphasis supplied)
Although the requested instruction may be a somewhat clearer exposition of the purpose of the statute, the charge given adequately explained to the jury the controlling legal principles. The substitution by the trial court of its own language for that contained in the request is not prejudicial error.
Plaintiff argues that the quoted portion of the instructions is inconsistent with other portions where reference is made to "the" proximate cause. The use of the definitive "the" is said to foreclose the possibility of recovery if the negligence partly caused the accident or if the accident partly caused the disability. We see no need to explore the point. The plaintiff made no objections to the instructions as required by Rule 51, F.R.Civ.P. We have repeatedly held that without objections in compliance with the rule we will not review on appeal the adequacy or propriety of the instructions.4 The subject was recently reviewed in Dunn v. St. Louis-San Francisco Railway Co., 10 Cir., 370 F.2d 681, 683-684, a case like this in which there were no objections to the instructions. On appeal a claim of inconsistency was made. We need not repeat what was there said about the need for compliance with Rule 51 and the consequences of lack of compliance. In our opinion, the instructions taken as a whole understandably and correctly explained to the jury the applicable law.5 Certainly the technical defects raised on appeal for the first time do not affect the substantial rights of the parties.
Affirmed.
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Corriz v. Naranjo, 80-1462
...Pool v. Leone, 374 F.2d 961 (10th Cir. 1967), cert. denied, 389 U.S. 943, 88 S.Ct. 309, 19 L.Ed.2d 300; Iannacito v. Denver & Rio Grande Western Railroad, 380 F.2d 1019 (10th Cir. 1967); Locke v. Atchison, Topeka and Santa Fe Railway Co., 309 F.2d 811 (10th Cir. 1962); Sanders v. Buchanan, ......
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Summers v. Missouri Pacific R.R. System
...R.R., 243 F.2d 840, 843 (3d Cir.1957). This circuit has only once been presented with the issue. In Iannacito v. Denver & Rio Grande Western R.R., 380 F.2d 1019 (10th Cir.1967), the plaintiff argued that references to "the proximate cause" in jury instructions that also included "in whole o......
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United States v. Mancusi
... ... The present petition, brought in the Western District of New York and transferred to the Northern ... ...
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Murphy v. Dyer
...court and they do not appear to be palpably wrong we accept them as the law of the case. Rule 51 F.R.Civ.P. 28 U.S.C., Iannacito v. Denver & Rio Grande Western R. Co., 380 F.2d 1019 (10th Cir. 1967) and cases cited. If, of course, the verdict of the jury can be said to rest upon the repose ......
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Preserving the Record for Appeal
...and Rio Grande Western Railroad Co., 438 F.2d 351, 354 (10th Cir. 1971); see also Iannacito v. Denver & Rio Grande Western Railroad Co., 380 F.2d 1019, 1021 (10th Cir. 1967) ("We repeatedly held that without objections in compliance with the rule we will not review on appeal the adequacy or......