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04/24/52 Capital Transit Co. v. Howard.

April 24, 1952




Before CLARK, BAZELON and WASHINGTON, Circuit Judges.



BAZELON, Circuit Judge.

Edward T. Howard was killed in an accident in which he was run over by a Capital Transit Company *fn1 bus. In a suit for damages brought by his administratrix, the trial court charged the jury, without objection, that the essential elements of her claim were

"First, that decedent was a paid passenger on the bus on the occasion in question;

"Second, that defendant was negligent in that its driver started the bus before decedent had safely alighted therefrom; and,

"Third, that such negligence proximately caused decedent's clothes or some portion of his body to be caught within the doors of the bus and decedent to be dragged or thrown under the bus." *fn2

Upon trial, the jury found for the administratrix and the court below entered final judgment in her favor. The Company, appellant herein, seeks reversal of that judgment.

The first ground urged is addressed to the refusal of the trial court to direct a verdict for the Company after all the evidence was in. The administratrix had sought to show at the trial that a portion of the decedent's body or clothing was "caught in the [rear] door of the bus" by a premature starting of the vehicle, resulting in his being dragged or thrown to his death under the right rear wheel.This version of what occurred was apparently accepted by the jury. The Company contends, however, that the issue should never have been submitted to the jury because the record contained no proof that the mechanical safety devices of the automatic rear door - which are designed to prevent such a premature starting - were in a state of disrepair. Instead, since it showed adequate inspection and maintenance, *fn3 the Company argues that it must be conclusively presumed that the safety devices were infallible and that the driver could not have started the bus prematurely. *fn4

This contention does not accurately reflect the state of the record below. "demonstration of the operation of the doors of the bus during the trial, on motion of defendant over opposition by plaintiff, disclosed that certain parts of the rubber edges were less sensitive than others, that the rubber edges could be subjected to considerable lateral pressure before the mechanism was activated, and that when the air pressure was lowered as the result of continued use, the doors would not operate properly." *fn5 This was sufficient to avoid the application of any possible conclusive presumption of infallibility.Thus it is unnecessary to say under what circumstances, if any, such presumption would be valid. We say only that upon this record we agree with the conclusion of the trial judge that the issue of negligence was for the jury despite the evidence of adequate inspection and maintenance introduced by the Company.

From our examination of the record, we find there was sufficient evidence upon all the essential elements to warrant submission of the case to the jury and that the ruling of the trial court in that respect was correct.

A second ground for reversal urged upon us is the action of the trial court in giving a supplementary charge *fn6 to the jury when after four hours of deliberations its foreman advised the court that the jurors were unable to agree. *fn7

When the court indicated the purpose and nature of the supplementary charge it proposed to give to the jury, counsel for the Company objected that "All of the evidence is in and any charge designed to coerce a settlement would not be in the interests of justice in a civil case." *fn8 No further objection or specific request for clarification or elaboration was made below at any time. Appellant argues in this court, for the first time, that the disputed charge was given prematurely and failed to include certain specified safeguards.But since the Company failed to afford the trial court the opportunity of considering these objections at any time before the jury left the room, we are precluded by Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A. from considering them. *fn9 That rule says, in pertinent 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 ...

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