Bertrand v. Southern Pacific Company

• Decision Date: 13 October 1960
• Docket Number: No. 16576.,16576.
• Citation: 282 F.2d 569
• Parties: Walter A. BERTRAND, Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.2d 569 (1960)

Walter A. BERTRAND, Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Appellee.

No. 16576.

United States Court of Appeals Ninth Circuit.

September 13, 1960.

Rehearing Denied October 13, 1960.

Hepperle & Hepperle, George Olshausen, San Francisco, Cal., for appellant.

Bledsoe, Smith, Cathcart, Johnson & Phelps, Robert A. Seligson, San Francisco, Cal., for appellee.

Before ORR, HAMLEY and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge.

Walter A. Bertrand, plaintiff in this action for damages brought under the Federal Safety Appliance Acts and the Federal Employers' Liability Act, 45 U. S.C.A. §§ 1 et seq., 51 et seq., appeals from a judgment for defendant, Southern Pacific Company. The judgment rendered after a jury trial conforms to the verdict. The specifications of error question the giving of two instructions and the refusal to give several instructions proposed by appellant.

Evidence favorable to appellant on the question of liability tended to establish the facts set out below. On July 3, 1957, while engaged in his duties as an employee of Southern Pacific, Bertrand attempted to release a brake on a freight car. The brake stuck and could not be released. Bertrand made a great exertion to turn the brake wheel, and then felt a sharp pain going down his back and left leg. He reported the nonfunctioning brake to the car inspectors. As a result of this report and without testing the brake to see if it worked, a car inspector took the brake apart thereby releasing it.

Appellant's principal specification of error challenges the giving of an instruction relating to the effect which the jury should give to evidence that the brake did not work when applied in the usual and normal manner. The jury was told that such evidence is sufficient to prove inefficiency of the brake. The jury was further instructed, however, that this does not mean that it is "compelling" evidence. The jury was advised that it could consider all of the evidence in the case and would be free to conclude "one way or another from all the evidence, whether there was an efficient hand brake or not." Appellant contends that the jury should have been told that the failure of the brake to work "compels" a finding of violation of the act.

Appellee argues that we cannot consider this specification of error because appellant failed to comply with Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A. This rule provides in part:

"* * * No party may assign as error the giving or the failure to give an 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. Opportunity shall be given to make the objection out of the hearing of the jury."

After all of the instructions were given, appellant was afforded an opportunity to object, out of the hearing of the jury, to the instructions given and refused. No objection was made at that time to the instruction referred to above. Appellant, however, refers to certain events which occurred prior to the giving of the instructions and urges that an objection within the meaning of Rule 51 may be derived therefrom. In this connection chief reliance is placed upon a remark made by counsel for appellant during a colloquy in chambers between the court and opposing counsel while the matter of instructions was under consideration but before they had been formulated by the trial judge.¹

During this discussion the judge stated that he would instruct "somewhat along this line," then describing the substance of the instruction later given which appellant now challenges. The judge added, however, that he would give the instruction in a little more detail that he had then stated "so that the various steps are clear." After some further discussion counsel made the following remark, which is relied upon as raising the objection now being urged:

"There\'s simply the additional item, your Honor, that proof of specific defect is not required. That ties in with your Honor\'s statement about the failure of the brakes to function."

Considered separately or in context with all the discussion which preceded it, this remark did not in our view "distinctly" state the matter to which appellant here objects, as required by Rule 51. Only by broadest inference does the remark even relate to the objection to the instruction now being urged. To say that a plaintiff need not provide proof of a specific defect is hardly a forthright way of saying that proof of failure of the brake to work compels a finding of violation of the act. Objections to a charge "must be sufficiently specific to bring into focus the precise nature of the alleged error." Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 483, 87 L.Ed. 645.

Nor was the quoted remark referenced to any final form of instruction given or proposed to be given as contemplated by Rule 51. The court had merely outlined in general terms the scope of the proposed instruction, and counsel had notice that the instruction had not yet taken final form.

Appellant also draws attention to a trial memorandum which he had submitted to the court at the outset of the trial. In this memorandum certain cases are cited which, appellant argues, establish the incorrectness of the instruction now under attack. Reference is also made to two of his proposed instructions not given by the court in which, it is argued, the correct rule is stated. No objection was taken to the failure to give these proposed instructions, nor is it here argued that failure to give those specific instructions was error.

The trial court is not required to rummage through trial briefs and proposed instructions in an effort to discover potential objections to instructions not yet given or formulated. Rule 51 provides the procedures to be followed. These procedures are not mere technicalities. Rule 51 is designed to bring possible errors to light while there is still time to correct them without entailing the cost, delay and expenditure of judicial resources occasioned by retrials.

Reading together Rules 46² and 51 as appellant asks us to do, it may be concluded that objections to the giving or the failure to give instructions need not follow any particular form. Rule 46, however, does not undermine the provision of Rule 51 that whatever the form of the objection it must at least state distinctly the matter to which objection is taken and the grounds for the objection. As indicated above the remarks in chambers, notations in the trial memorandum, and proposed instructions failed in both of these particulars.

Appellant has called our attention to Louisiana & Arkansas Railway Company v. Moore, 5 Cir., 229 F.2d 1, 3, 59 A.L.R. 2d 574, in which the refusal of the court to give a requested instruction was considered on the merits, despite the fact that no objection was made in the trial court. The court held that "since it the question goes to the central issue in the case * * * we may consider it under...