Broderick v. Harvey, 5271.
| Decision Date | 17 February 1958 |
| Docket Number | No. 5271.,5271. |
| Citation | 252 F.2d 274 |
| Parties | Thomas F. BRODERICK, Sr., Plaintiff, Appellant, v. Thomas G. HARVEY et al., Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
John J. St. Andre, Framingham, Mass., with whom Sullivan & St. Andre, Framingham, Mass., was on brief for appellant.
Thomas H. Mahony, Boston, Mass., with whom Edward F. Mahony and George T. Padula, Boston, Mass., were on brief, for appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
This is an appeal by the plaintiff, Thomas F. Broderick, Sr., from a judgment of the United States District Court for the District of Massachusetts dismissing the plaintiff's action following a jury verdict for the defendants, Thomas G. Harvey and Cross Transportation, Inc. The plaintiff also appealed from the denial of his motion for a new trial.
The plaintiff's action arose out of physical injuries and property damage incurred in a collision between his automobile and a truck driven by the defendant, Harvey, who was an employee of the defendant, Cross Transportation, Inc. The testimony as to how the accident occurred was conflicting but according to the defendant, Harvey, he was proceeding easterly on Boylston Street in Brookline, Massachusetts, in the middle lane of the three lane portion of the divided highway reserved for traffic traveling in an easterly direction toward Boston. Harvey stopped his truck in this middle lane about ten feet to the rear of plaintiff's sedan which was stopped for the traffic light at the intersection of Cypress Street and Boylston Street. Harvey testified that about three-quarters of the plaintiff's automobile was in the left or third lane and one-quarter in the middle lane. This third lane was apparently intended as a "storage lane" for automobiles turning left from Boylston Street onto Cypress Street. Boylston Street normally has only two lanes running in an easterly direction but west of Cypress Street the curbed reservation dividing the south half of Boylston Street from the north half is indented so as to allow for a third lane in the southerly half of Boylston Street. A sign located on the reservation immediately prior to the beginning of this third lane reads "Left Lane for Left Turn only". Harvey testified in his deposition that the traffic light turned green and as the plaintiff's car didn't move, he turned his truck towards the right to pass the plaintiff's automobile. He also testified that just as he started to pass the plaintiff's car on the right, the plaintiff pulled out to the right and the accident occurred, the left end of the front bumper of the defendant's truck striking the right rear fender of the plaintiff's sedan. At the time of impact at least three-quarters of the plaintiff's automobile was in the middle lane.
The plaintiff, in direct contradiction of the defendant, testified that his automobile was not moving when struck by the defendant's truck.
This appeal challenges the correctness of that portion of the district judge's charge to the jury instructing on the law to be followed in determining whether the plaintiff was contributorily negligent. That portion of the charge is as follows:
Before dealing with this appeal on the merits, it is necessary for us to determine whether this charge was properly objected to in the court below so as to be entitled to review. Immediately after the charge was given, the district judge asked counsel if anything had been omitted from the charge and the following colloquy between plaintiff's attorney and the judge took place at the bench:
Defendants contend that this objection by plaintiff's attorney did not meet the requirements of Rule 51 of Fed. R.Civ.P. 28 U.S.C.A.1 However, it appears to us that this objection by plaintiff's attorney sufficiently apprised the trial judge of the plaintiff's contention that the charge would confuse and perhaps mislead the jury into finding contributory negligence even if the plaintiff was in the proper lane and moved his vehicle directly forward in his lane if he did so without giving a signal.
It is the object of Rule 51 to require counsel to state their objection so that the judge may see the error in his charge and correct it before the jury retires. See United States v. General Motors Corporation, 3 Cir., 1955, 226 F.2d 745, 750, Marshall v. Nugent, 1 Cir., 1955, 222 F.2d 604, 615. Here the trial court was informed that the proper instruction should have been that contributory negligence could be found if the plaintiff cut in front of the defendant without signaling, yet he in effect considered this objection and dismissed it by indicating that his charge had so instructed. We hold that plaintiff has complied with Rule 51 and this appeal presents a reviewable question of law.
Turning to the merits of the appeal, plaintiff contends that this erroneous instruction resulted in prejudicial error. Defendants reply that this portion of the charge when considered in context with the rest of the judge's charge and defendants counsel's argument to the jury, was not erroneous and could not have been...
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Greyhound Corporation v. Blakley
...in the bus at the time that plaintiff became ill. We believe that there was a sufficient compliance with Rule 51. Broderick v. Harvey, 1 Cir., 1958, 252 F.2d 274; Thomas v. Union Railway Co., 6 Cir., 1954, 216 F.2d 18. Defendant makes no objection as to the form of the Turning to the merits......
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Golden v. United States, 6062.
...before the case is submitted to the jury. 4 Barron, Federal Practice and Procedure § 2235 (Rules ed. 1951); cf. Broderick v. Harvey, 252 F.2d 274, 276-277 (1st Cir. 1958). A review of the record satisfies us that the defendant in this case did all that could reasonably be expected to make t......
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Estate of Keatinge v. Biddle
...87 L.Ed. 645 (1942)). The purpose of this requirement is to help trial courts correct errors in jury instructions, Broderick v. Harvey, 252 F.2d 274, 276 (1st Cir.1958), — and thus to avoid unnecessary To maximize the likelihood that errors can be corrected at the trial court level, parties......