Barone v. Winebrenner

¹⁴⁴ Collins, J., delivered the opinion of the Court. This is an appeal by Marie Barone, plaintiff below, from a judgment entered in favor of the defendants below, appellees here, William Winebrenner and Katherine M. Winebrenner, his wife. Appellant claims that the trial judge erred in refusing her prayers as to the right-of-way of pedestrians and damages, because the verbal charge to the jury which intended to cover the law of the right-of-way of pedestrians did not do so, and because the verbal charge did not mention damages, a damage prayer having been offered by the plaintiff. The appellant also contends that the trial judge should not have granted a directed verdict for the defendant, William Winebrenner, the owner of the automobile driven by his wife, Katherine M. Winebrenner, an exception having been taken by the appellant to the granting of this demurrer prayer.

Rule 6 (c) and (d), Part III of the General Rules of Practice and Procedure, adopted by this court and effective September 1, 1941, provides: “(c) Objections. Before the jury retires to consider ■its verdict, any party may object to any portion of any instruction given or to any omission therefrom or to the failure to give any instruction, stating distinctly the portion or omission or failure to instruct to which he objects and the specific grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. “(d) Appeal. Upon appeal a party, in assigning error in the instructions, shall be restricted to (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct distinctly objected to before the jury retired and (2) the specific grounds of objection distinctly stated at that time; and no other errors or assignments of error in the instructions shall be considered by the Court of Appeals(Italics supplied here.) ¹⁴⁵ No objection was made by the plaintiff to the oral instructions of the trial judge to the jury until December 6, 1946, the verdict having been returned by the jury on October 22, 1946, and judgment entered the same day.

Rule 6, supra, provides in part: “(b) Instructions. In its instructions to the jury, which may be given either orally or in writing or both, the Court, in its discretion, “(1) may instruct the jury upon the law of the case, either by granting requested instructions or by giving instruction of its own on particular issues or on the case as a whole, or by several or all of these methods, but need not grant any requested instruction if the matter is fairly covered by instructions actually given.” In the case now before this court the trial judge refused prayers five and six of the defendant, Katherine M. Winebrenner, and granted exceptions to that refusal. He did not in terms grant or refuse the remaining prayers of the defendant or any of the plaintiff’s prayers. He intended to incorporate the law of the case in an oral instruction to the jury.

As we have said, plaintiff did not object to the charge as failing adequately to incorporate any of her prayers. The purpose, of course, in requiring exceptions to be made to the