## Facts

- Two westbound tractor-trailers collided on the Pennsylvania Turnpike near Somerset, Pennsylvania, around 6:00 a.m. on October 19, 1951, in spotty fog.
- The plaintiffs were the driver, Arnett Alexander, and the truck’s owner, Walworth Trucking Corporation; the defendant owned the other tractor-trailer and employed its driver, Holman.
- The corporate plaintiff’s truck was badly damaged, and Alexander sustained serious injuries.
- The only eyewitnesses were the two drivers, whose accounts conflicted on where the collision occurred and how it happened.
- Alexander claimed the defendant’s truck entered from a right-side entrance and cut ahead, and fog prevented timely avoidance.
- Holman denied entering from the right and claimed Alexander had followed for some time before rear-ending the defendant’s truck.
- The defendant denied negligence and asserted contributory negligence.

## Issues

1. Whether the defendant preserved, under Federal Rule of Civil Procedure 51, an objection to an allegedly erroneous instruction on the burden of proof for contributory negligence when it failed to object to the final charge before the jury retired.
2. Whether an appellate court should reverse for an unpreserved misallocation of the state-law burden of proof on contributory negligence.
3. Whether the trial court erred in excluding prior consistent (rehabilitative) statements of an interested witness whose credibility was attacked.

## Decision

- The Second Circuit affirmed the judgment for the plaintiffs.
- Any error in the contributory-negligence burden instruction was not reviewable because the defendant did not comply with Rule 51 by timely and specifically objecting to the charge as given.
- A colloquy “exception” taken near the close of the plaintiffs’ case, days before the final instructions, did not satisfy Rule 51’s requirements.
- The exclusion of the offered prior consistent statements was upheld because, under New York evidentiary rules, the statements were inadmissible where the interested witness could have had a motive to fabricate when they were made.

## Legal Principles

- Under Federal Rule of Civil Procedure 51, a party generally waives appellate review of jury-instruction error unless it objects on the record after the instructions are delivered and before the jury retires, stating distinctly the matter objected to and the grounds.
- The purpose of Rule 51 is to give the trial judge a fair opportunity to correct instructional errors in time to avoid a flawed verdict.
- Appellate review of unpreserved instructional error is reserved for exceptional situations; an instruction that appears substantively wrong under applicable state law is ordinarily not reversible absent preservation.
- Under New York evidence law, prior consistent statements are generally inadmissible to rehabilitate an impeached witness unless offered to rebut a charge of recent fabrication and made before the alleged motive to falsify arose; statements by an interested witness made when a motive to fabricate may exist are properly excluded.

## Conclusion

The Second Circuit affirmed a plaintiffs’ verdict arising from a fog-related truck collision, holding that alleged misinstruction on the burden of proving contributory negligence was waived by failure to object under Rule 51, and that prior consistent statements offered to bolster an interested witness were properly excluded under New York law.


Alexander v. Kramer Bros. Freight Lines, Inc., 273 F.2d 373 (2d Cir. 1959)