Johnson v. Chesapeake and Ohio Railway Company, 11416-11418.

• Decision Date: 30 November 1955
• Docket Number: No. 11416-11418.,11416-11418.
• Citation: 227 F.2d 858
• Parties: Evans B. JOHNSON, Executor of the Last Will and Testament of Jimmie F. Johnson, Deceased, Plaintiff-Appellee, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant. Leland W. PATTERSON, Administrator of the Estate of Truly Patterson, Deceased, Plaintiff-Appellee, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant. Leland W. PATTERSON, Plaintiff-Appellee, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

227 F.2d 858 (1955)

Evans B. JOHNSON, Executor of the Last Will and Testament of Jimmie F. Johnson, Deceased, Plaintiff-Appellee, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.

Leland W. PATTERSON, Administrator of the Estate of Truly Patterson, Deceased, Plaintiff-Appellee, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.

Leland W. PATTERSON, Plaintiff-Appellee, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.

Nos. 11416-11418.

United States Court of Appeals Seventh Circuit.

November 30, 1955.

Owen Voigt, Jeffersonville, Ind., Homer E. Hostettler, Henryville, Ind., Paul F. Brady, Jeffersonville, Ind., for plaintiffs-appellees.

Russel J. Wildman, Albert H. Cole, Jr., Cole, Wildman & Cole, Peru, Ind., for defendant.

Before DUFFY, Chief Judge, and MAJOR and LINDLEY, Circuit Judges.

MAJOR, Circuit Judge.

These actions were brought to recover damages caused by the alleged negligence of defendant in the operation of one of its trains over a public highway crossing at which time it collided with an automobile owned and driven by Leland W. Patterson. The occupants of the automobile other than Patterson were his wife, Truly Patterson, seated to his right on the front seat, and Virgil D. Johnson, seated to the left, and his wife, Jimmie F. Johnson, seated to the right on the rear seat. The collision occurred on November 21, 1952, at about 9:15 p. m., at the southern boundary of Losantville, Indiana, where Main Street crosses or intersects the track of the defendant railway company. At that point Main Street extends in a general northerly and southerly direction and the railroad track in a general easterly and westerly direction. The automobile was proceeding south on Main Street and defendant's train was traveling east.

As a result of the collision, Leland W. Patterson and Virgil D. Johnson received injuries for which they sought damages in their separate actions. Also as a result of the collision, Truly Patterson, wife of Leland Patterson, and Jimmie F. Johnson, wife of Virgil D. Johnson, were killed. For their deaths, damages were sought in separate actions, for the former by Leland W. Patterson, administrator of the estate of Truly Patterson, deceased, and for the latter by Evans B. Johnson, executor of the last will and testament of Jimmie F. Johnson, deceased. The four separate causes of action were consolidated for trial and a jury verdict was returned favorable to the plaintiff in each case. After the denial of a motion for a new trial, judgments were entered in accordance with the jury verdicts. From the judgment in favor of Evans B. Johnson, executor of the last will and testament of Jimmie F. Johnson, deceased, defendant appeals in No. 11416; from the judgment in favor of Leland W. Patterson, administrator of the estate of Truly Patterson, deceased, defendant appeals in No. 11417, and from the judgment in favor of Leland W. Patterson, defendant appeals in No. 11418. No appeal was taken from the judgment in favor of Virgil D. Johnson.

The sole questions raised on these appeals, as stated in defendant's brief are: (a) Did the court err in giving its thirty-fifth instruction? and (b) Were the plaintiffs or the decedents or their widowers guilty of contributory negligence such as would preclude recovery of damages, and therefore did the court err in refusing defendant's peremptory instructions Nos. 3 and 4?

Plaintiffs contend that defendant is precluded from raising these questions on review for the reason that they were not properly preserved in the trial court. Particularly it is contended that there was a failure on the part of the defendant to properly object to the giving of the 35th instruction or the refusing of defendant's proffered instructions Nos. 3 and 4, as required by Rule 51 of the Federal Rules of Civil Procedure, 28 U.S. C.A. Furthermore, it is contended that the issue of contributory negligence is not properly before this court because of defendant's failure to move for a directed verdict in its favor. We think there is merit in plaintiffs' contention; in fact, the condition of the record creates a strong suspicion that the asserted errors now sought to be reviewed were an afterthought.

The court's charge to the jury was arranged in numerical form, from 1 to 54, inclusive. The charge was lengthy and occupies some eighteen pages of the printed transcript. Prior to the submission of the cases to the jury and in its absence, the court suggested that it would hear any objections or exceptions to the instructions as given as well as to those which had been tendered and refused. The sole objection made by the defendant was as follows:

"The defendant in each of these cases excepts to the Court\'s refusal to give each of the instructions tendered from Numbers 1 to 24.

"The defendant excepts to each of the Court\'s instructions that tells the jury that if the negligence of the defendant was such in each of the cases as to amount to the proximate cause of the plaintiffs\' injuries that — and that the plaintiffs themselves were free from fault or contributory negligence — that a verdict should be returned for the plaintiff. It instructs under what circumstances a verdict shall return and omits the defense that the negligence of Leland Patterson may have been the sole proximate cause of the plaintiffs\' injuries in the separate cases; and it omits the defense that the negligence of Virgil D. Johnson as the widower of Jimmie F. Johnson may have had the effect of reducing the size of any verdict that might be returned in the case of Evans B. Johnson, Executor v. The Chesapeake & Ohio Railway Company.

"We object to the instruction also for the reason that it does not require that the negligence of the defendant be the sole proximate cause of the plaintiffs\' injuries before a verdict can be returned for the plaintiff."

It will be noted that neither instructions 3 and 4, tendered by the defendant and refused, nor instruction 35, as given, was specifically mentioned in the objections. The objections amounted to little more than a broadside directed at the entire charge as given and at the refusal to give all of defendant's tendered instructions. No reason was stated as a basis for the objection to the court's refusal to give instructions, and it was made as to all refused instructions without specifying any particular one. The objection to the instructions as given did state some reasons as a basis therefor but, again, no particular instruction was specified.

Rule 51 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."

It will be noted that the rule requires objection to "an instruction," which evidently does not embrace objection to a charge as a whole, either as given or refused. More than that, even though the objection be directed at "an instruction," it must state "distinctly the matter to which he objects and the grounds of his objection." As was stated in Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 483, 87 L.Ed. 645;

"In fairness to the trial court and to the parties, objections to a charge must be sufficiently specific to bring into focus the precise nature of the alleged error. Where a party might have obtained the correct charge by specifically calling the attention of the trial court to the error and where part of the charge was correct, he may not through a general exception obtain a new trial. Citing cases."

To hold that defendant's objections to the given instructions were sufficient to meet the requirements of Rule 51 would mean that the court when the objections were made was obliged to go through each of the fifty-four instructions and determine, if it could, to which, if any, the objections were applicable. We do not think that Rule 51 is susceptible of a construction which would impose such a burden on a trial judge. If the objections were directed at instruction 35, as is now contended, counsel at the time of making the objections should have so stated, thereby calling the particular attention of the court to that instruction. Defendant in its brief complains of the difficulty in making specific objections to the instructions under the circumstances. It states:

"It is indeed difficult for counsel to state specific objections to instructions, when, as in this case, counsel is not furnished with a copy of the instructions to be given, nor even to have them

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