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January 27, 1976


The opinion of the court was delivered by: BECHTLE

 BECHTLE, District Judge

 Presently before the Court is plaintiffs' motion for a new trial. In addition to the general interests of justice, plaintiffs contend that there are five specific grounds which require that a new trial be granted. We will consider plaintiffs' arguments seriatim.

 The first ground raised by plaintiffs is that the Court's charge to the jury "inextricably intertwined the issue of proximate cause of Dr. Spencer's conduct with the alleged contributory negligence of Mr. Ayoub." *fn1" We believe that plaintiffs adequately raised this objection at trial [N.T. 8-47] and, therefore, may now properly assign it as error. The Court also believes, however, that an examination of the entire charge shows that the jury was clearly and adequately instructed on the proper method by which to decide the issue of liability. If from the entire charge, read as a whole, it appears to the Court, as it does here, that the jury has been fairly and adequately instructed, then the requirements of the law are satisfied. Smith v. Pressed Steel Tank Co., 66 F.R.D. 429, 433 (E.D.Pa. 1975), aff'd mem., 524 F.2d 1404 (3d Cir. 1975).

 Subsequent to the point in the Court's charge where plaintiffs claim the "intertwining" took place [N.T. 8-22 to 8-23], the Court stated the proper decisional process as follows: "Even though Dr. Spencer was negligent, and even though what he did was a proximate cause of Mr. Ayoub's injury, you may now take up the question as to whether or not Mr. Ayoub himself was contributorily negligent." [N.T. 8-23 to 8-24.] (Emphasis added.) Later in the charge, the Court stated: "The plaintiff will be entitled to recover if you believe under the rules that I have given you he has made out his case in the standards that I have mentioned showing that Dr. Spencer was negligent and that was a proximate cause and also that he has not been contributorily negligent." [N.T. 8-35 to 8-36.] (Emphasis added.) Finally, in response to various objections by plaintiffs' counsel, the Court again charged the jury on the proximate cause issue. [N.T. 8-51 to 8-52.] There was no mention made of contributory negligence at that time. We do not believe that the instructions were confusing or misleading.

 The second ground advanced by plaintiffs is that the Court failed in its charge to explain or define for the jury the standard by which it was to determine whether or not Hanna Ayoub was contributorily negligent. While plaintiffs did object to the issue of contributory negligence being submitted to the jury at all [N.T. 8-39 to 8-40], there was never any protest during the trial concerning the way in which the issue was presented in the Court's charge. Thus, on its face, Fed.R.Civ.P. 51 precludes plaintiffs from now seeking a new trial on that ground. However, the Third Circuit has tempered the impact of Rule 51 by holding that when the error is fundamental, an unobjected to charge may be attacked on a motion for new trial. Morley v. Branca, 456 F.2d 1252, 1253 (3d Cir. 1972); accord, Stephenson v. College Misericordia, 376 F. Supp. 1324, 1326 (M.D.Pa. 1974). A fundamental error has been committed if "the court's charge was totally inadequate to provide even the barest legal guideposts to aid the jury in rationally reaching a decision." McNello v. John B. Kelly, Inc., 283 F.2d 96, 102 (3d Cir. 1960). This Court does not believe that such an error was committed in this case.

 The Court's charge explained to the jury that "the plaintiff's claim is based on negligence, that is, that the defendant failed to possess or employ the skill required of him as an orthopedic specialist or that he failed to act as a reasonable man under the circumstances, or both." [N.T. 8-13 to 8-14.] The Court explained the "reasonable man" negligence standard as follows:

In defining negligence it is important to keep in mind that the mere happening of an accident does not without more mean that someone or anyone was negligent. Negligence is the failure of a reasonably prudent person to exercise due care under the circumstances. That's the kind of conduct that would apply to any person, the so-called reasonable person -- yourself, myself, in conducting our normal affairs. It may also be the doing of something which a reasonably prudent person would not do under the circumstances. [N.T. 8-12.]

 This standard was clearly tied to the question of contributory negligence in our instructions. The Court stated:

[You] will have to assess all the evidence and determine what happened and as a result of that you will then come to the key question, whether or not the plaintiff has met his burden of persuasion, proving by a preponderance of the evidence that Dr. Spencer failed to exercise the care of an orthopedic specialist or a reasonable man as I have described it. Similarly you will have to make the same judgment in respect to the defendant's contentions of contributory negligence. [N.T. 8-33 to 8-34.]

 Earlier in the charge, the Court stated:

The defendant in this case has raised the issue of what we call contributory negligence. That is, if you should find that what was a cause of this was the plaintiff's own conduct, failure to go get other medical treatment, then you may conclude that he is barred from recovery because his own conduct was a substantial factor in bringing about the injury . . .. [N.T. 8-22.] (Emphasis added.)

 The Court believes that the issue of Hanna Ayoub's contributory negligence was properly presented to the jury for decision and that a reading of the charge as a whole reveals that fair and adequate ...

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