Nimrod v. Sylvester, 6754.

• Decision Date: 21 December 1966
• Docket Number: No. 6754.,6754.
• Citation: 369 F.2d 870
• Parties: Susan NIMROD, etc., et al., Plaintiffs, Appellants, v. Stephen SYLVESTER et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

369 F.2d 870 (1966)

Susan NIMROD, etc., et al., Plaintiffs, Appellants, v. Stephen SYLVESTER et al., Defendants, Appellees.

No. 6754.

United States Court of Appeals First Circuit.

December 21, 1966.

Daniel F. Featherston, Jr., Boston, Mass., for appellants.

Andrew G. Meyer, with whom Morrison, Mahoney & Miller, Boston, Mass., were on brief, for Jack Meehl, appellee.

James D. Casey, with whom Donald Q. Bunker, Boston, Mass., was on brief, for Stephen Sylvester, appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

OPINION OF THE COURT.

McENTEE, Circuit Judge.

Plaintiffs appeal from a judgment for the defendants and from the trial court's denial of their motion for a new trial.

This is a diversity suit in which plaintiff, Susan Nimrod, a minor, seeks to recover damages for the loss of her right eye allegedly caused by defendants' negligence.¹ This injury occurred while Susan was attending a church outing held at a YMCA camp in Waltham, Massachusetts. Susan and one Linda Elia, both fifteen years of age, met the defendants, Stephen Sylvester and Jack Meehl, outside a lodge building located on the camp grounds. Sylvester, age seventeen, was the camp rifle and shooting instructor. Meehl, who was thirteen, was a relative of the camp director and a guest at the camp. Eventually these youngsters entered the lodge. Inside there was a gun case containing a number of BB guns. This case was open. Also, two BB guns were lying on a desk. Sylvester had left these two guns there to be repaired and cleaned.²

While inside the lodge Sylvester picked up one of the guns from the desk and showed the girls how it operated. He cocked it and fired it at the floor but nothing was seen to come out. Then he put the gun back on the desk. Shortly thereafter Susan picked up one of the two guns. What she did with it is the subject of conflicting testimony. Meehl said Susan aimed and fired the gun at him but only a puff of air came out. Sylvester testified that she shot it "in the direction of" Meehl. Linda couldn't recall Susan handling the gun at all. Susan denied cocking, aiming or firing the gun. She stated that she only examined it and put it back on the desk. At this point Meehl went over to the desk, picked up the same gun that Susan had examined and walked away.

Susan testified that she did not know where Meehl got this gun (from the desk or the gun case); that she did not see him with it until he stood pointing it in her direction for a period of "two or three minutes". The record also indicates that she did not protest or say anything concerning the guns to either Meehl or Sylvester during this time. This, despite the fact that she said she knew the danger in anyone pointing a gun at her — even a BB gun. Meehl cocked the gun and fired it at Susan. A pellet came out and struck her in the eye.

At the conclusion of the testimony and in the absence of the jury, the court informed counsel for the parties that in addition to the other issues covered by the general verdict, it was going to put a special question to the jury as to whether the plaintiff Susan voluntarily assumed the risk of the accident. At this point plaintiffs' counsel objected generally to the submission of this special question but when asked to give the grounds for his objection stated that he had none.³ Shortly thereafter, the trial judge charged the jury generally on the issues in the case and particularly with reference to the question of voluntary assumption of risk. He then submitted the special question to the jury⁴ and told them to answer this question in addition to giving a general verdict. Plaintiffs did not object to any of the court's instructions.

During its deliberations and in the presence of the court and counsel, the jury requested additional instructions in the form of three written questions. In responding to this request the court gave the jury supplementary instructions on the issue of voluntary assumption of risk.⁵ Plaintiffs' counsel again failed to object nor did he object that the jury made three requests for instructions but the court discussed only two. The jury answered "Yes" to the special question and returned a general verdict for the defendants.

Plaintiffs now complain that the trial court committed prejudicial error in instructing the jury (1) on the question of voluntary assumption of risk; (2) in not answering fully the jury's requests for supplemental instructions and (3) in intentionally not disclosing to counsel all of the jury's requests. Fed.R.Civ.P. 51 provides in part that:

"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."

It has been uniformly held that failure of a party to make timely and proper objections to the court's instructions as required by this rule precludes him from relying upon them in this court on appeal. Garrett v. Campbell, 360 F.2d 382, 386, 387 (5th Cir. 1966); John Fabick Tractor Co. v. Lizzo & Sons, Inc., 298 F.2d 63, 65 (2d Cir. 1962); Giacalone v. Raytheon Mfg. Co., 222 F.2d 249, 251 (1st Cir. 1955). Plaintiffs not having complied with Rule 51, it is much too late for them to make this objection now.

Plaintiffs' counsel argues that his initial general objection, made when the court first informed counsel it intended to submit this special question to the jury, preserved his clients' rights. The record demonstrates that this general objection really was no objection at all⁶ because (1) it was withdrawn and (2) it did not state distinctly the matter to which he objected and the grounds of his objection as required by Rule 51. 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).

As to plaintiffs' second and third contentions,⁷ it is apparent from the record that the jury made three requests for supplementary instructions and the trial court answered only two. Plaintiffs' counsel was present at the time and his unawareness of the actual situation was of his own making.⁸ From our examination of the record, we are convinced that plaintiffs had full opportunity to preserve their rights with reference to the remaining request but failed to do so in a proper and timely manner.

Plaintiffs further argue that the errors now complained of, having been specified in their motion for a new trial, this appeal taken from the denial of this motion as well as from the judgment, properly raises these errors despite plaintiffs' failure to make proper and timely objection in the trial court.

An order denying a motion for a new trial is not open to review on appeal unless it appears that in denying the motion, the trial court abused its discretion. Hobart v. O'Brien, 243 F.2d 735, 741 (1st Cir.), cert. denied, 355 U.S. 830, 78 S.Ct. 42, 2 L.Ed.2d 42, ...