242 F2d 37 Joyner v. George Washington University

242 F.2d 37

Grace JOYNER, Appellant,
GEORGE WASHINGTON UNIVERSITY, a corporation, Appellee.

No. 12916.

United States Court of Appeals District of Columbia Circuit.

Argued February 13, 1957.

Decided February 28, 1957.

Mr. Arthur L. Willcher, Washington, D. C., with whom Mr. Bernard Shankman, Washington, D. C., was on the brief, for appellant.

Mr. Justin L. Edgerton, Washington, D. C., with whom Messrs. H. Mason Welch, J. Harry Welch, J. Joseph Barse, Charles E. Pledger, Jr., and John F. Mahoney, Jr., Washington, D. C., were on the brief, for appellee.

Mr. John R. Daily, Washington, D. C., also entered an appearance for appellee.

Before BAZELON, FAHY and WASHINGTON, Circuit Judges.


view counter

This is an appeal from a judgment in favor of the defendant entered upon a jury verdict in a negligence suit. Appellant, leaving the George Washington University Hospital after out-patient treatment, slipped on the icy sidewalk and sustained a fractured hip. She testified that on her way into the hospital a half hour or so earlier, she had noticed that the sidewalk was icy "all the way across," but had "picked" her way. Other witnesses testified that there had been a patch of ice on the sidewalk but that there had been room to walk around it.


Two errors are alleged on appeal: (1) that the trial judge charged the jury too generally on the issue of contributory negligence; and (2) that he over-emphasized in his charge the evidence tending to show contributory negligence.


As for the first alleged error, the record shows that appellant did not object to the instruction given nor suggest any different or further instruction. The point is, therefore, unavailable to her on appeal, Rule 51, Fed.Rules Civ.Proc., 28 U.S.C., and no circumstance appears which justifies exercising our discretion to consider the point though not raised below.1


The second alleged error has no substance when the charge is read as a whole.





Cf. Montgomery v. Virginia Stage Lines, 1951, 89 U.S.App.D.C. 213, 191 F.2d 770; Shokuwan Shimabukuro v. Higeyoshi Nagayama, 1944, 78 U.S.App.D.C. 271, 140 F.2d 13