Gay v. P. K. Lindsay Co., Inc., 81-1253
| Decision Date | 14 December 1981 |
| Docket Number | No. 81-1253,81-1253 |
| Citation | 666 F.2d 710 |
| Parties | 9 Fed. R. Evid. Serv. 920 Jeanne M. and Roger E. GAY, Plaintiffs, Appellants, v. P. K. LINDSAY COMPANY, INC., Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Michael P. Hall, Manchester, N. H., with whom Brown & Nixon Professional Ass'n, Manchester, N. H., was on brief, for plaintiffs, appellants.
W. Wright Danenbarger, Manchester, N. H., with whom Wiggin & Nourie, Manchester, N. H., was on brief, for defendant, appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
On July 1, 1977, plaintiff-appellant Jeanne Gay suffered severe injuries when the station wagon she was driving went out of control and rolled over. She had been returning home from the defendant-appellee P.K. Lindsay Company's plant, where she had obtained a 225-pound air compressor. Two Lindsay employees had loaded the compressor into the rear storage area of the car. Mrs. Gay and her husband, as co-plaintiff, alleged that the compressor had been negligently loaded, and that either its movement or position in the storage area caused the accident. A jury trial was held in the United States District Court for the District of New Hampshire, jurisdiction being based on diversity of citizenship. The jury returned a verdict for defendant, and plaintiffs now appeal to this court.
The accident occurred while Mrs. Gay was driving on the Everett Turnpike in New Hampshire at about 50 miles per hour. She approached a pickup truck in front of her, when a sudden cloud of sand arose in her path behind the truck. Startled, she turned the wheel; her car then swerved violently and rolled over. Plaintiffs attempted to prove that the compressor was improperly loaded in such a manner that it moved around and may have rubbed against a rear wheel well of the car. This movement and rubbing, they contended, resulted in the car's erratic behavior when Mrs. Gay reacted to the sand cloud by turning the wheel. Defendant's evidence tended to show that the compressor was loaded in a safe manner and that it did not cause the car's abrupt swing to one side.
Defendant also contended that the sand cloud was a superseding cause, the intervention of which sufficed to absolve the defendant of any liability even if its servants had been negligent. See Restatement (Second) of Torts § 440; Reid v. Spadone Machine Co., 119 N.H. 457, 404 A.2d 1094, 1099 (1979). The district court instructed the jury at length on this issue. Plaintiffs now argue that the instruction was error on three separate grounds: first, they allege that it allowed the jury to find that the cloud of sand was a superseding cause even if it was reasonably foreseeable; second, they allege that it suggested that the cloud was caused by the negligence of a third party; and third, they allege that the instruction was not warranted by the evidence.
We hold that plaintiffs waived their right to raise the first and third of these grounds because they failed to object on those grounds at trial. Fed.R.Civ.P. 51. The only objection made by plaintiffs' counsel to the superseding cause instruction was as follows:
MR. NIXON (Counsel for Plaintiffs): ... (T)here was allusion by the Court specifically to facts with respect to the cloud of dust indicating that the dust was caused by dirt falling from another truck when the evidence indicated there was either a patch in the road or dirt on the shoulder of the road or off another truck, but for some reason there was a cloud of dust ahead of her. It didn't clearly specify, but the Court's charge leaves no question that in the Court's mind the dirt came from another truck and after a lengthy course of intervening cause in that context.
THE COURT: That's what the defendant claims, as the Court understands it, and I think I made it clear that was the defendant's claim and he had the burden of proof by a preponderance of the evidence. If they find it came from something other than a truck, he's out of luck on that one.
MR. DANENBARGER (Counsel for Defendant): That's correct, your Honor.
Despite the fact that the court had already told counsel that reasons for objections must be given, and later invited counsel to "(t)ake all the objections you want," nothing further was forthcoming concerning this instruction.
The stated objection plainly refers only to the possibility that the instruction improperly suggests that "in the Court's mind the dirt came from another truck," and it was to this ground that the court addressed its response. There is no reference to any difficulties with the foreseeability of the sand cloud, or with the absence of a factual predicate for the instruction. Fed.R.Civ.P. 51 provides,
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. 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.
The rule thus explicitly requires that the grounds of the objection be given. The purpose of this "is to afford the trial judge an opportunity upon second thought, and before it is too late, to correct" any errors. Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir. 1955). Objections 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 (1943); see Charles A. Wright, Inc. v. F.D. Rich Co., 354 F.2d 710, 713 (1st Cir.), cert. denied, 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673 (1966). The objection here did not relate to any difficulties with foreseeability or lack of basis in fact for the instruction. It thus did not suffice to apprise the district court of the insufficiencies in the instruction now being claimed. We therefore decline to entertain these assignments of error. 1 See Morris v. Travisono, 528 F.2d 856, 859 (1st Cir. 1976).
Respecting plaintiffs' contention that the instruction erroneously suggested that the sand cloud came from the pickup truck, the objection was sufficient to preserve this point, but we find no merit in the point itself. Plaintiffs' argument seems to be that the instruction somehow suggested that the sand cloud must have been caused by the negligence of the truck driver, and that this partially usurped the jury's role in deciding whether there was a superseding cause. But the court did not state that the sand came from the truck. Rather, it stated that this contention was "(t)he thrust of (the superseding cause) defense," and specifically noted that "the defendant has the burden of proof" on the issue. Taken as a whole, we are unable to say that the instruction assumed that the sand cloud was caused by the negligence of a third party. Rather, it directed the jury to decide for itself on this issue.
The next assignment of error concerns the district court's failure to permit plaintiffs' counsel to examine certain documents in connection...
To continue reading
Request your trial
-
Playboy Enterprises, Inc. v. Public Service Com'n of Puerto Rico, 89-1026
...of justice" has occurred. Brown v. Trustees of Boston University, 891 F.2d 337, 359 (1st Cir.1989); Gay v. P.K. Lindsay Co., Inc., 666 F.2d 710, 712 n. 1 (1st Cir.1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 849 (1982). The defendants do not say why this issue could not hav......
-
Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors
..."Objections must be 'sufficiently specific to bring into focus the precise nature of the alleged error.' " Gay v. P.K. Lindsay Co., Inc., 666 F.2d 710, 712 (1st Cir.1981) (quoting Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 483, 87 L.Ed. 645 (1943)).6 Rule 51 reads in pertinent part......
-
Clausen v. Sea-3, Inc.
...Reed, 977 F.2d at 17; see Fed.R.Evid. 103(d). "Plain error, however, is a rare species in civil litigation...." Gay v. P.K. Lindsay Co., 666 F.2d 710, 712 n. 1 (1st Cir.1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 849 (1982). Even in criminal cases, in the absence of proper......
-
Cambridge Plating Co., Inc. v. Napco, Inc.
...plain error hurdle is too high for Napco to overcome. "Plain error [ ] is a rare species in civil litigation." Gay v. P.K. Lindsay Co., Inc., 666 F.2d 710, 712 n. 1 (1st Cir.1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 849 (1982); see also Clausen v. Sea-3, Inc., 21 F.3d 11......