256 F2d 578 Fei-Man Tzu v. J Robertson

256 F.2d 578

FEI-MAN TZU and Lien Chao Tzu, Appellants,
Arthur J. ROBERTSON, Guardian ad litem for Mary Jane Evans, infant, and Gerald Albert Evans, Appellees.

No. 7629.

United States Court of Appeals Fourth Circuit.

Argued June 6, 1958.

Decided June 9, 1958.

Daniel L. O'Connor, Washington, D. C. (Woodrow A. Shiver, Washington, D. C., and William E. Brooke, District Heights, Md., on brief) for appellants.

Paul M. Higinbothom, Paul R. Kach and W. Frank Every, Baltimore, Md., on brief for appellees.

Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and MOORE, District Judge.


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This is an appeal in a tort case in which a jury, upon conflicting evidence, brought in a verdict for the defendant motorist. The plaintiff, the injured pedestrian, seeks to challenge the action of the trial judge in permitting the jury to take with them into the jury room a typewritten copy of two sections of the Maryland Traffic Laws defining the right-of-way as between a motorist and a pedestrian. Code 1957, art. 66½, §§ 193 and 236. These statutes had been read to the jury by the trial judge in the course of his charge, and the foreman of the jury requested permission to take the copy into the jury room. Counsel for both parties consenting, permission to do so was granted.


The plaintiff concedes that her consent deprives her of standing to question this action of the District Judge upon appeal, but she urges that we invoke our reserved powers, under Rule 10, subd. 8 of this Court, 28 U.S.C.A., to notice plain error, in the interest of justice, whether or not there was objection or exception in the court below.


We find no "plain error," however. The jury was not permitted to rummage through a copy of the traffic laws, but took with them only a copy of those controlling sections which they were instructed to apply to the facts as they found them. Done with the consent of counsel, this was clearly within the discretion of the trial judge.


Moreover, this is not the sort of situation contemplated by our Rule 10, subd. 8. After a fair and complete charge, to which no exception was taken, the jury resolved the sharp conflict in the evidence by a verdict for the defendant. That verdict is more than adequately supported by the evidence, and the trial judge has overruled a motion for a new trial. Our power, in the circumstances, is much more limited than that of the trial judge. Except, perhaps, in a most extraordinary case, we should not, by a critical examination of every ruling of the trial judge to which no objection was made at the time of trial, undertake to deprive the jury's verdict, approved by the trial judge, of the finality which is traditionally accorded it.