277 F2d 738 Seaboard Air Line Railroad Company v. Horowitz

277 F.2d 738

Carol HOROWITZ, a minor, by her sister, and next friend, Joan Hoffman, Appellee.

No. 18170.

United States Court of Appeals Fifth Circuit.

May 6, 1960.

Earl D. Waldin, Jr., Smathers, Thompson & Dyer, Miami, Fla., for appellant Seaboard Air Line Railroad Co.

Wm. S. Frates, Sam Daniels, Nichols, Gaither, Green, Frates & Beckham, Miami, Fla., for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.


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The mother of the appellee was killed when an automobile driven by her was struck by a train of the appellant at a grade crossing. Judgment was entered for the appellee and the railroad has appealed. It is asserted that erroneous charges were given to the jury. No objections to the charges were made and it is not contended that the appellant was deprived of an opportunity for making them. No exception being preserved the instructions are not subject to review. Rule 51, Fed.Rule Civ. Proc. 28 U.S.C.A.; Sims v. Texas & N. O. R. Co., 5 Cir., 1959, 267 F.2d 37; Cain v. Illinois Central R. Co., 5 Cir., 1959, 266 F.2d 942; De Fonce Const. Co. v. City of Miami, 5 Cir., 1958, 256 F.2d 425, certiorari denied 358 U.S. 875, 79 S.Ct. 115, 3 L.Ed.2d 105; Ford v. United Gas Corporation, 5 Cir., 1958, 254 F.2d 817, certiorari denied 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64. The appellant urges that the evidence does not sustain the verdict and judgment. No motion was made for a directed verdict. Where no request has been made for a directed verdict the sufficiency of the evidence on issues submitted to the jury cannot be challenged on appeal. Norman Tobacco & Candy Co. v. Gillette Safety Razor Co., 5 Cir., 1959, 264 F.2d 751. No manifest injustice calling for an invocation of the plain error rule is shown. Haugh v. Curlee, 5 Cir., 1959, 265 F.2d 130. The judgment of the district court is