The opinion of the court was delivered by: KRAFT
These actions, which were tried together, arise from an accident which occurred at Crossett, Arkansas on November 21, 1960, when the 50 foot boom of a crane, then operated by an employee of the Crossett Paper Company (Crossett), fell upon Jackson and Burt, causing the former's death and the latter's injuries.
The crane was manufactured by the defendant, Baldwin-Lima-Hamilton Corporation (Baldwin), and sold through its dealer, the Southern Tractor and Equipment Company (Southern), of Monroe, Louisiana to Crossett in June, 1959. Crossett used the crane regularly in its business without mishap for about seventeen months before the tragic event.
The second trial began on September 20, 1965, and terminated eight days later in a judgment for the defendant in each case, when the jury, by negative answers to special interrogatories 1(a) and 2(a),
found no negligence or breach of warranty on the part of Baldwin. The actions were tried under the prevailing law of Arkansas.
The plaintiffs' complaints claim negligence and breach of warranty by Baldwin in the manufacture and design of the crane. Early in the trial we advised counsel of our intention to submit the issues to the jury in the posture of specific interrogatories. Copies of the interrogatories proposed were given to all counsel well in advance of the conclusion of the evidence. Counsel neither objected to their use nor offered any suggestion of amendment or supplement thereto.
After the entry of judgments for the defendant on October 1, 1965 the plaintiffs filed:
(1) on October 4, a motion to enlarge the record to include plaintiffs' points and supplemental points for charge.
(2) on October 8, an alternative motion (a) for new trial, or (b) for a directed verdict, assigning 24 reasons.
(3) on October 20, 18 additional reasons assigned in support of the alternative motion.
Despite the incorrect designation, we treat the plaintiffs' "motion for a directed verdict" as a motion for judgment notwithstanding the verdict. So treated, we must deny the motion, because of plaintiffs' utter disregard of the plain provisions of F.R.Civ.P. 50(a) and (b). Plaintiffs' counsel filed no motion for a directed verdict at the close of all the evidence. The omission of that prerequisite is fatal to that aspect of plaintiffs' motion. Massaro v. United States Lines, 307 F.2d 299 (3 Cir. 1962); Brandon v. Yale & Towne Mfg. Co., 220 F. Supp. 855 (E.D.Pa. 1963) aff'd. per curiam 342 F.2d 519 (3 Cir. 1965).
The plaintiffs' motion to enlarge the record to include their points and supplemental points for charge will be denied. The events preceding the surprising failure of the plaintiffs timely to file or even proffer written requests for instructions are delineated in our Findings of Fact
filed of record on October 7, 1965. For present purposes it is sufficient to allude to them briefly.
The sudden and unexpected death of our esteemed law clerk of many years necessitated our absence to attend his funeral services on the afternoon of September 30, 1965. All counsel had been privately so advised before the closing arguments to the jury, which were completed at 11:30 A.M. on that day.
Only after we had recessed trial until the following day at 10:00 A.M., had excused the jury and were leaving the bench did plaintiffs' counsel inquire whether the trial judge had the plaintiffs' points for charge. We informed counsel that no points had been filed or submitted for our consideration. Thereupon, plaintiffs' counsel hastily procured from an associate and proffered certain papers, stating that they were his points for charge.
We declined to consider the papers then offered as written requests because they were not timely filed at the close of the evidence, as required by F.R.Civ.P. 51. No written requests or supplemental requests for charge were presented to the trial judge or the clerk on Friday, October 1, 1965.
Plaintiffs made no objection to the trial judge's failure to give the instructions purportedly contained in the requests before the jury retired to consider its verdict; nor was any motion made to have such papers filed or made a part of the record on Friday, October 1, 1965.
When counsel omits to make timely requests for charge and omits, as well, to object to the failure of the trial judge so to instruct, the failure to instruct may not be assigned as error. F.R.Civ.P. 51; Stueber v. Admiral Corp., 171 F.2d 777 (7 Cir. 1949) cert. denied 336 U.S. 961, 69 S. Ct. 891, 93 L. Ed. 1113 (1949); Bercut v. Park Benziger & Co., 150 F.2d 731 (9 Cir. 1945); Burch v. Reading Co., 140 F. Supp. 136 (E.D.Pa. 1956) aff'd. 240 F.2d 574 (3 Cir. 1957); cert. denied 353 U.S. 965, 77 S. Ct. 1049, 1 L. Ed. 2d 914 (1957).
Since no error may properly be assigned on appeal in this regard, we think it needless to encumber this record further by the inclusion of the points and supplemental points for charge now tendered by plaintiffs' motion to enlarge the record. Arnold v. Loose, 352 F.2d 959, Opinion filed October 19, 1965 (3 Cir. 1965).
The plaintiffs' motion for a new trial, as filed, assigns twenty four grounds of asserted error on the part of the trial judge. Of the twenty four only three were preserved by timely objections made by plaintiffs' counsel to the charge of the Court. They are: (1) the trial judge erred when he told the jury that representations made after the sale cannot be considered as warranties; (2) that such representations allegedly made by a service representative of Baldwin could only be considered as negligent mispresentations and not as an oral warranty; (3) failure of the Court to instruct the jury that Crossett's concurrent negligence would not exculpate Baldwin.
Summarizing the remaining grounds which were not preserved by exceptions to the charge, plaintiffs allege that fundamental error was committed by the Court in that: (1) the trial judge failed to charge on the doctrine of independent intervening agency and superseding cause; (2) the trial judge instructed the jury that the test of negligence is a "foresight" not a "hindsight" test; (3) the charge on foreseeability was incomplete; (4) absolute liability should have been the standard of care required by Baldwin instead of ordinary care; (5) the trial judge was in error in suggesting to the jury that it could consider or decide the question of proximate cause before it resolved the issue of negligence; (6) error resulted from the charge of the Court on the duty of the jury not to be influenced by sympathy. The plaintiffs have alleged many other points which relate to, restate and expand upon the grounds outlined above.
The plaintiffs, as well, generally attack the verdict as contrary to the evidence, the weight of the evidence, the law and, for whatever it may be worth, the weight of the law. Finally, they object to the use of interrogatories by the Court, claiming now that the interrogatories were not related to the law and the facts.
Upon careful review we conclude that all of the reasons assigned by plaintiffs in support of their motions for a new trial are devoid of merit, except that which asserts that the verdict on the issue of defendant's negligence is against the weight of the evidence.
Additionally, the plaintiffs filed, abortively, eighteen additional reasons, ineptly titled "Supplemental Points", for a new trial, on October 20, 1965 after the ten day period prescribed by Rule 59 had expired. Because of the plaintiffs' flagrant disregard of the time limitation of Rule 59 we have no jurisdiction to consider their "Supplemental Points" (Document No. 35) and direct the Clerk to strike this paper from the record. Marks v. Philadelphia Wholesale Drug Company, 222 F.2d 545 (3 Cir. 1955); Schuyler v. United Air Lines, 94 F. Supp. 472, 477 (M.D.Pa. 1950) aff'd. per curiam 188 F.2d 968 (3 Cir. 1951); Levin v. Trans World Airlines, Inc., 201 F. Supp. 791 (M.D.Pa.1962) Rules 59(b) and 6(b).
Early in 1959, Crossett, by inquiries to three dealers in heavy machinery, evidenced interest in a prospective purchase of a crane. One of the dealers was Southern. After discussions with sales representatives of Southern and Baldwin, Crossett selected a specific crane from a Baldwin catalogue. During the negotiations Crossett was made aware that the particular crane it eventually selected was capable of performing several operations, including lifting and ...