Alexander v. Kramer Bros. Freight Lines, Inc.

United States Court of Appeals for the Second Circuit · 1959 · Civil Procedure

273 F.2d 373 (2d Cir. 1959)

Updated July 29, 2026

Civil ProcedureJury instructionsRule 51EvidenceChoice of lawjury chargefailure to objectplain error exception

Facts

The action arose from a collision between two westbound tractor-trailer trucks on the Pennsylvania Turnpike in spotty fog. The only eyewitnesses were the two drivers, whose accounts sharply conflicted as to where and how the accident happened, creating jury questions on negligence and contributory negligence. Near the close of the plaintiffs' case, during colloquy, the trial judge stated that the burden of proving contributory negligence was on the defendant, and defense counsel noted an exception then but did not object to the actual jury charge before deliberations. The defendant also sought to rehabilitate its driver, Holman, with prior statements after his credibility had been attacked on cross-examination.

Issue

Whether the defendant could obtain reversal based on an allegedly erroneous jury instruction on the burden of proving contributory negligence when it did not object to the charge as required by Rule 51, relying instead on an earlier exception during colloquy. The court also considered whether the trial court sufficiently handled the requested speed-statute instructions and whether Holman's prior consistent statements were properly excluded.

Rule

Under Rule 51, a party may not assign as error the giving or failure to give an instruction unless it objects to the charge before the jury retires, distinctly stating the matter and grounds of objection. An exception to a judge's earlier statement in colloquy, made days before the charge and without bringing supporting authorities to the court's attention, does not satisfy Rule 51. Prior consistent statements are admissible to rehabilitate a witness only when made before any motive to fabricate arose; they are not admissible for an interested witness who already had a motive to color his account.

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In a diversity negligence trial in federal court in Buffalo, the judge told counsel during a midtrial sidebar that the defendant would bear the burden of disproving causation. Defense counsel objected at sidebar, but when the judge repeated that point in the final charge three days later, counsel said nothing before the jury retired.

On appeal after a plaintiff's verdict, may the defendant successfully obtain reversal based on the erroneous instruction?

Explanation. Rule 51 requires a party to object to the charge before the jury retires and to state distinctly the matter objected to and the grounds. The majority held that an exception to a judge's earlier statement in colloquy, made days before the charge, does not satisfy that requirement because it does not fairly give the trial judge the necessary opportunity to reconsider and correct the final instructions. (Derived from Alexander v. Kramer Bros. Freight Lines, Inc. (1959).)