Batesole v. Stratford, No. 74-1261

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before WEICK, PECK and McCREE; JOHN W. PECK
• Citation: 505 F.2d 804
• Parties: Sharon L. BATESOLE, Administratrix of the Estate of Lawrence L. Batesole, Deceased, Plaintiff-Appellant, v. Jack E. STRATFORD et al., Defendants-Appellees.
• Docket Number: No. 74-1261
• Decision Date: 08 November 1974

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505 F.2d 804 Sharon L. BATESOLE, Administratrix of the Estate of Lawrence
L. Batesole, Deceased, Plaintiff-Appellant,
v.
Jack E. STRATFORD et al., Defendants-Appellees. No. 74-1261. United States Court of Appeals, Sixth Circuit. Decided Nov. 8, 1974.

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Alfred J. Cooper, Busick, Cooper & Hall, Fremont, Ohio, for plaintiff-appellant.

John A. Pietrykowski, H. William Bamman, Toledo, Ohio, for defendants-appellees.

Before WEICK, PECK and McCREE, Circuit Judges.

JOHN W. PECK, Circuit Judge.

This appeal was perfected from a judgment entered upon a jury verdict for the defendant-appellees in an action brought by the personal representative of Lawrence L. Batesole to recover for her decedent's conscious pain and suffering and his wrongful death. The principal question involved is whether, in spite of the failure by appellant's counsel to comply with the objection requirement of Rule 51 of the Federal Rules of Civil Procedure, a new trial is required as a result of the district court's alleged failure to fully and correctly instruct the jury on all the issues raised in the case.

The basic facts are as follows. At approximately 6:15 a.m. on April 11, 1972, the decedent, Lawrence L. Batesole, stopped to aid a motorist who had

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pulled her car onto the right shoulder of the westbound lanes of US Route #20 in Sandusky County, Ohio, in order to repair a flat left rear tire. At this particular location, and for a considerable distance in either direction, US Route #20 is a four lane divided highway with two westbound lanes and two eastbound lanes. Instead of pulling his pickup truck entirely off the traveled part of the roadway (as the evidence indicated was physically possible), decedent left it a few feet behind, and several feet to the left of the disabled vehicle so that the truck encroached upon the right lane of the highway by several feet. While he was engaged in replacing the 'lug' nuts on the wheel of the disabled vehicle, his pickup truck was struck from behind by a tractor-trailer truck which was being driven west on US Route #20 in the right lane at between 45 and 50 miles per hour. The collision drove the pickup truck into the disabled vehicle and the decedent and the other motorist were struck by one or both of these vehicles. Two and a half hours later decedent died of his injuries.

Sharon Batesole, the widow and personal representative of the decedent (hereafter Appellant), originally filed this law suit in the Common Pleas Court of Sandusky County against the driver of the trailer truck, Jack Stratford, his employer, Shippers Dispatch, Inc., and others (hereafter collectively referred to as Appellees). Upon their motion the case was removed to the United States District Court for the Northern District of Ohio, where it was tried before a jury. After appellant's counsel rested his case, which clearly set out the scene described above, the circumstances indicating that defendant Stratford was negligent, and the fact that Stratford had only a '. . . fleeting glance of (decedent) down in front of the pickup truck' prior to the collision, appellees' counsel made a motion for a directed verdict on the grounds that the decedent's conduct amounted to contributory negligence and was a proximate cause of his injury and death. The district court reserved its ruling on this motion until the appellees concluded their case, which action occurred very shortly as their case consisted solely of a single stipulation concerning the location of the nearest highway patrolpost. The court then denied the appellees' motion. Subsequently it instructed the jury that the defendant Stratford was negligent as a matter of law and thus their deliberations would be limited to deciding whether decedent's conduct constituted negligence which proximately caused the collision and, if not, the amount of damages recoverable. Neither counsel made any objection to the district court's charge as read to the jury when they were given the opportunity to do so, and the court permitted the jury to retire to deliberate. In due course they returned the verdict which precipitated this appeal.

In reviewing a federal district court's charge to the jury in a diversity action, it is well settled that the substance of the instructions is controlled by the applicable state law while the method of objecting thereto is controlled by federal law. Lester v. John R. Jurgensen Co., 400 F.2d 393, 396 (6th Cir. 1968); Vol. 9, Wright & Miller, Federal Practice and procedure: Civil 2555 (1971). It is also clear that the failure to make a timely objection to '. . . the giving or the failure to give . . .' a particular instruction, as required by Rule 51 ¹ of the Federal Rules of Civil Procedure, generally precludes assigning the matter as error in a subsequent appeal. Gentry v. Louisville and Nashville R.R., 371 F.2d 829 (6th Cir. 1967); Cutter v. Cincinnati Union Terminal Co., 361 F.2d 637 (6th Cir. 1966);

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Vol. 9, Wright & Miller, Federal Practice and Procedure: Civil 2558 at 670 (1971). Thus it initially appears that appellant is barred from challenging the substance of the district court's charge due to counsel's failure to make any objection at the trial. However, as appellant's counsel correctly noted during his oral argument before this Court, the federal courts have recognized a narrow exception to the general prohibition of Rule 51 in cases where an objection would have been a mere 'formality' under the circumstances, Sessions v. Union Savings and Trust Co., 338 F.2d 752 (6th Cir. 1964); Harlem Taxicab Ass'n v. Nemesh, 89 U.S.App.D.C. 123, 191 F.2d 459 (1951), or where the error was 'obvious and prejudicial' and required action by the reviewing court 'in the interests of justice.' O'Brien v. Willys Motors Inc., 385 F.2d 163 (6th Cir. 1967); McNello v. John B. Kelly, Inc., 283 F.2d 96 (3rd Cir. 1960). Thus the question before us is not only whether the district court's instructions were erroneous as alleged by appellant, but also whether any such errors fall within the often stated but rarely applied exception to Rule 51. Morrison v. New...