KRAVITCH, Circuit Judge:
At about 11:00 on the night of April 13, 1983, in Haralson, Georgia, nineteen year old Brian McTamney was giving seventeen year old Bobby Pate and fifteen year old Nancy Killingsworth a ride home from an evening of fishing when McTamney's pickup truck was struck by a northbound Seaboard Railroad train. The train impacted the passenger side of McTamney's vehicle, pushing the truck approximately 2100 feet down the tracks before coming to a stop. Bobby Pate and Nancy Killingsworth were killed. Brian McTamney was seriously injured.
The parents of the deceased youths, Lewis and Carolyn Pate (Pate appellants) and Velma Hinton and John L. Killingsworth (Killingsworth appellants), brought wrongful death diversity actions in federal court against Seaboard System Railroad, Inc. (Seaboard). Seaboard filed third party complaints against appellant McTamney in each case, and McTamney counterclaimed against Seaboard. The cases were consolidated by agreement of the parties, and the consolidated action proceeded to jury trial with the Pate appellants, Killingsworth appellants, and McTamney all aligned as plaintiffs.
The jury returned a verdict in favor of Seaboard on all claims and counterclaims.
Appellant McTamney appealed from the denial of his motion for a new trial.
We begin with appellants' argument that the court erred in denying their motions for a new trial on the basis of erroneous and prejudicial jury instructions. Motions for a new trial are committed to the discretion of the trial court, McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984); our review of the court's refusal to grant a new trial is limited to ascertaining whether there has been a clear abuse of discretion. Goldstein v. Manhatten Indus. Inc., 758 F.2d 1435, 1447-48 (11th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985). In determining whether the district court abused its discretion we examine the challenged instructions as part of the entire charge, in light of the allegations of the complaint, the evidence presented, and the arguments of counsel, to determine whether the jury was misled and whether the jury understood the issues.
The Pate and Killingsworth appellants allege that the district court erred in charging the jury that:
See O.C.G.A. § 40-6-242(b). The Pate and Killingsworth appellants objected to the
McTamney testified that in attempting to cross the four rails at the Todd Road crossing, he stopped three times prior to the impact: once about a car length in front of the first rail on the storage track; once just after the front wheels of his truck crossed over the first rail of the storage track; and once just prior to crossing over the third rail (first rail of the main track). McTamney indicated that he did not shift out of first gear during this time and that he "leaned up and looked" both ways each time he stopped. According to McTamney, at the last stop immediately prior to the crash, "I saw my truck, and I saw Bobby [Pate] and Nancy [Killingsworth], but I looked over, and that's all I saw, just the window, and then it was just dark." McTamney denied having heard any horns or whistles or having seen an approaching train or any train lights.
Evidence at trial created an ambiguous suggestion that McTamney's passengers might have partially obstructed his view. McTamney's four-wheel drive pickup truck had bucket seats with a console between the seats and two gear shift levers on the floor. Brian McTamney testified that, on the night of the accident, Bobby Pate was seated in the passenger seat next to the door and Nancy Killingsworth was seated to Pate's left, half on the seat and half on the console. An accident reconstruction expert indicated that a passenger seated in the passenger seat would impair the driver's line of sight down the tracks due to the fact that a driver crossing the tracks from the west would have to look behind him somewhat when looking to his right for northbound trains because the tracks cross the road at an angle and curve away to the southwest. The driver would therefore have to lean forward or attempt to look out the rear window of the truck to see around both any passengers and the metal beam pillar between the passenger door window and the rear window of the truck's cab. This evidence created an arguable inference that the passengers in McTamney's vehicle, by both being seated in the passenger bucket seat with Nancy Killingsworth half on the seat and half on the console, negligently contributed to McTamney's failure to see the oncoming train.
Passenger contributory negligence was not, however, an issue in the case. No passenger contributory negligence defense was raised in appellee's answers, in the pretrial order, or in any of appellee's arguments to the jury. Appellee concedes in its arguments before this court that passenger contributory negligence was not at issue. The district court agreed that appellee had not raised a passenger contributory negligence issue,
The jury confusion that was likely from the charge relating to passenger contributory negligence was not eradicated by other charges. First, prior to agreeing to give the challenged instruction, the district court had agreed to charge the jury that "the defendant has not contended that there was any contributory negligence on the part of the passengers in the vehicle." In the actual charge to the jury, however, the court failed to give this clarifying instruction. Second, the presence of third party defendant McTamney in the case exacerbated the potential for jury confusion by creating somewhat complex contributory negligence standards for the jury to apply. The court first instructed the jury that "the plaintiffs and the third party defendant must prove by a preponderance of the evidence that the defendant was negligent and that the defendant's negligence was a legal cause of damage sustained by the plaintiffs and the third party defendant." The court later charged the jury that it could apportion liability between McTamney and Seaboard if the jury found that the accident was caused "partly by the negligence of one and partly by the negligence of the other." If, however, the jury found that McTamney's responsibility "exceeds one-half, that is 50 percent, or equals 50 percent, then he is not entitled to recover from Seaboard at all."
Although the court did instruct the jury that "if Seaboard's negligence in any way was a legal or proximate cause of the collision, then you must find in favor of the Pates and Ms. Hinton and Mr. Killingsworth," we have substantial and ineradicable doubts about whether the jury was confused and misled by the passenger contributory negligence charge in light of the entire charge, the evidence presented, and the contentions of the parties. See, e.g., Johnson v. Bryant, 671 F.2d 1276, 1280 (11th Cir.1982) (erroneous instruction is reversible error where court is left with "substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.") (quoting Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1372 (5th Cir.1981)); Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1525 (11th
All appellants contend that the district court erred in charging the jury that:
Appellants allege that the instruction should not have been charged in this case because, under Georgia law, the legal principle embodied in the instruction "has no applicability in a case unless there is no testimony — other than the party's own vague, contradictory and equivocal testimony — upon which a verdict in his favor might be returned." Weathers v. Cowan, 176 Ga.App. 19, 335 S.E.2d 392, 394 (1985).
The district court erred in giving this charge. Although the Weathers decision was not published until after the trial in this case, Georgia law at the time of trial indicated that the challenged instruction is appropriate only where there is no evidence other than the party's vague, contradictory or equivocal testimony to support a verdict in favor of that party. See Maurer v. Chyatte, 173 Ga.App. 343, 326 S.E.2d 543 (1985).
326 S.E.2d at 546 (emphasis in original) (citations omitted). In this case, despite ample evidence of Seaboard's negligence in addition to McTamney's testimony, the instruction directed the jury to disregard the other evidence and to find in favor of Seaboard because Brian McTamney was the only party whose testimony on his own behalf could have been viewed as self-contradictory, vague, or equivocal.
Finding that the challenged instruction was, as a matter of Georgia law, erroneously charged in this case does not end our inquiry. The substance of jury instructions
Seaboard argues that this court should decline to consider this alleged error because appellants failed to object to the challenged charge. In pertinent part, Fed.R.Civ.P. 51 states that: "[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." We conclude that appellants did not meet the Rule 51 requirements because they failed to object to the challenged charge on the grounds raised in this appeal.
Appellants objected to the challenged instruction at two points "before the jury retire[d] to consider its verdict." The first objection occurred at the charging conference when appellants counsel objected to the pronoun usage in the proposed charge because the jury might fail to recognize that the charge applied to Seaboard's representatives as well as to McTamney. In response to this objection, the district court amended the charge to state that: "the testimony of a party who offers himself as a witness in his or its own behalf is to be construed...." Appellants' counsel responded, "that will be fine." After the court charged the jury, the court asked whether there were any exceptions in addition to those stated at the charging conference. Appellants' counsel then objected to the challenged charge because the court had charged the jury twice on the doctrine of avoidance.
The purpose of Rule 51 is to "prevent unnecessary new trials because of errors the judge might have corrected if they had been brought to his attention at the proper time." Independent Dev. Bd. of Section, Alabama v. Fuqua Indus., Inc., 523 F.2d 1226, 1238 (5th Cir.1975). Despite the clear language of Rule 51, we have recognized two narrow exceptions where a new trial will still be granted despite a party's failure adequately to object to the erroneous charge: (1) where "the party's position has previously been made clear to the court and it is plain that a further objection would have been unavailing," Lang v. Texas & Pacific R.R. Co., 624 F.2d 1275, 1279 (5th Cir.1980); and (2) where the error is "so fundamental as to result in a miscarriage of justice" if a new trial is not granted. Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408, 1414 (11th Cir.1986); Fuqua Indus., 523 F.2d at 1238. Only the
In order to merit reversal as plain error, appellants must establish that the challenged instruction was an incorrect statement of the law and that it was probably responsible for an incorrect verdict, leading to substantial injustice. Rodrigue v. Dixilyn Corp., 620 F.2d 537, 541 (5th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981). Where a jury is given an erroneous charge which will "mislead the jury or leave the jury to speculate as to an essential point of law," the error is sufficiently fundamental to warrant a new trial despite a party's failure to state a proper objection. Cruthirds v. RCI, Inc., 624 F.2d 632, 636 (5th Cir.1980).
As noted above, the challenged charge was improper under Georgia law. We agree with the Georgia courts that the charge instructs a jury that, where a party's testimony might be viewed as contradictory, vague, or equivocal, the jury must disregard all other evidence and enter a verdict against the party "solely because the most unfavorable version of appellant's own testimony did not warrant a finding in his favor." Maurer v. Chyatte, 173 Ga.App. 343, 326 S.E.2d 543, 546 (1985). Despite other charges instructing the jury to consider all the evidence in the case, we are not convinced that "the verdict ... would have been substantially the same under proper instructions." Sheppard Fed. Credit Union v. Palmer, 408 F.2d 1369, 1372 (5th Cir.1969). See also Hunt v. Liberty Lobby, 720 F.2d 631, 647 (11th Cir.1983) (erroneous jury instruction creating uncertainty over whether jury followed constitutionally-mandated criteria was fundamental error necessitating new trial); Independent Dev. Bd. of Section, Alabama v. Fuqua Indus., 523 F.2d 1226, 1239 (5th Cir.1975) (erroneous jury charge that set up "an additional hurdle to a favorable jury verdict" was plain error requiring new trial because possibility of prejudice was so significant "that it cannot be ignored"). Accordingly, we hold that the substantial risk that the jury disregarded its function to consider all of the evidence and entered a verdict against appellant McTamney solely because he testified on his own behalf constitutes fundamental error necessitating a new trial.
Having concluded that the fundamental error caused by this charge requires a new trial, we next consider appellee's argument that this court nevertheless is without power to grant a new trial on the basis of the alleged error because appellants did not raise the issue in their original motions for a new trial. Although all appellants filed timely notices of appeal,
This circuit has not decided whether a district court, in ruling on a timely motion for a new trial, may properly consider a new ground of alleged error raised for the first time in an amended motion filed after the ten day period in Fed.R.Civ.P. 59(b) but before the district court has ruled on the motion. See, e.g., Black v. Fidelity & Guar. Ins. Underwriters, 582 F.2d 984, 989 (5th Cir.1978) (deciding claim on merits "[r]ather than address the thorny question of whether a timely motion under Rules 50 & 59, Fed.R.Civ.P., can belatedly be amended to assert a new ground"). We conclude that a district court may, in its discretion, allow an amendment to a timely motion for a new trial prior to its decision on the merits of the motion and that the court may consider new grounds raised in the amended motion.
The ten day period for serving new trial motions is jurisdictional and cannot be extended in the discretion of the district court. Fed.R.Civ.P. 6(b); Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir. Unit A 1980); Butler v. Coral Volkswagen, Inc., 804 F.2d 612, 614 (11th Cir.1986). Prior to the 1966 amendments to Rule 59, most courts held that a district court could not grant a motion for a new trial on any ground not raised by a motion served within the ten day limitations period in Rule 59(b).
Nevertheless, the final draft of the 1966 amendment to Rule 59 omitted the provision allowing a court to consider new grounds raised by a party amending its motion for new trial but adopted, as an amendment to Rule 59(d), a provision allowing a district court, on its own initiative, to "grant a motion for new trial, timely served, for a reason not stated in the motion." Professor Kaplan explained the anomalous result created by this partial liberalization of Rule 59(b):
Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (II), 81 Harv.L.Rev. 591, 604 (1968).
After the 1966 amendments took effect, the language of Rule 59(d) expressly allowed district courts to grant a timely motion for new trial "for a reason not stated in the motion." The circuit courts have divided on the question of whether district courts may, in considering a timely new trial motion, entertain new grounds raised by the moving parties rather than by the court sua sponte. Compare Roy v. Volkswagenwerk Aktiengesellschaft, 781 F.2d 670 (9th Cir.1985) and Central Microfilm Serv. Corp. v. Basic/Four Corp., 688 F.2d 1206 (8th Cir.1982), cert. denied, 459 U.S. 1204, 103 S.Ct. 1191, 75 L.Ed.2d 436 (1983) and Pogue v. International Indus. Inc., 524 F.2d 342 (6th Cir.1975) with Arkwright Mut. Ins. Co. v. Philadelphia Elec. Co., 427 F.2d 1273 (3d Cir.1970) and Smith v. Pressed Steel Tank Co., 66 F.R.D. 429 (E.D.Pa.), aff'd, 524 F.2d 1404 (3d Cir.1975) and Conrad v. Graf Bros., Inc., 412 F.2d 135 (1st Cir.), cert. denied, 396 U.S. 902, 90 S.Ct. 215, 24 L.Ed.2d 178 (1969).
We find that reason and precedent favor allowing district courts, in their discretion, to consider new grounds raised in amendments to timely new trial motions. Once the finality of the judgment has been suspended by the filing of a timely motion for new trial, there is little justification for a rule that dictates that a district court may not, in the interest of justice, decide to consider a new ground alleged by the movant as warranting a new trial. As Professor Kaplan pointed out, any alleged justification becomes particularly specious in light of the fact that Rule 59(d) clearly permits a district court to consider informal suggestions from the movant as to additional grounds for relief.
Id. at 440.
We conclude therefore that the district court may consider amendments to a party's original timely motion for a new trial as "a reason not stated in the motion" under Fed.R.Civ.P. 59(d), and that the other requirements of Rule 59(d) apply to the court's consideration of the newly raised grounds. As such, the court must give the parties notice and an opportunity to be heard, and if the court grants a new trial, it must specify the grounds therefor in its order. Fed.R.Civ.P. 59(d). The district court retains discretion as to whether to allow, when justice so requires, an amendment stating new grounds. See 6A J. Moore, J. Lucas & G. Grotheer, Moore's Federal Practice, ¶ 59.09 (2d ed. 1986).
Applying our ruling to the facts of this case, we find that the district court did not abuse its discretion in allowing appellants to assert a new ground for relief in its amended motion for a new trial. Appellants' amendment was precipitated by the announcement of the decision in Weathers v. Cowan, 176 Ga.App. 19, 335 S.E.2d 392 (1985). Although the district court would have been justified in refusing to permit the amendment asserting new grounds due to the substantial delay involved and the fact that the Weathers case was not the first Georgia decision to enunciate the principles involved in appellants' argument, the court was within its discretion in determining that the question raised in the amendment was very serious and not duplicitous of the original motion for a new trial. Moreover, in allowing the amendment, the court complied with the notice and hearing requirements of Rule 59(d).
Having concluded that all appellants are entitled to a new trial in this case, we find it unnecessary to rule on the remaining issues raised in this appeal. We reverse the district court's denial of the motions for a new trial and remand to the district court for a new trial.
REVERSED and REMANDED.
The relevance of the claim that Nancy Killingsworth should not have been on the console in the district court's view appears to have been limited to proving McTamney's negligence, because the court agreed that passenger contributory negligence was not at issue. The Killingsworth appellants requested that the court charge the jury as follows:
The discussion that followed the court's request for objections to this proposed charge is enlightening as to the issues actually in the case and the court's intent in giving the charge challenged in this appeal:
Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the United States District Courts (1964), reprinted in 34 F.R.D. 325, 404-05.