Essentially the same deferential standard applies to review of appeals from denials of "conventional" motions for new trial made under Mass.R.Civ.P. 59. See Walsh v. Chestnut Hill Bank Trust Co., 414 Mass. 283, 292 (1993); Commonwealth v. Johnson Insulation, 425 Mass. 650, 668 (1997); Burke v. Gallison, 7 Mass. App. Ct. 918, 919 (1979); Adams v. United States Steel Corp., 24 Mass. App. Ct. 102, 103-104 (1987). That motion could also be rejected as an improper effort to obtain relief under rule 60(b)(6) that should be granted only in extraordinary circumstances, which are not presented when the allegedly aggrieved party could have reasonably sought relief by means of direct appeal.
The Jarrys argue that the trial judge erred in failing to give proposed instruction No. 12. They, however, did not specifically object to its omission. A party must object to the failure to give a specific instruction in order to preserve the issue for appeal. See Waltham Truck Equip. Co. v. Massachusetts Equip. Co., 7 Mass. App. Ct. 580, 585 (1979); Burke v. Gallison, 7 Mass. App. Ct. 918, 919 (1979). Cf. Simmons v. Yurchak, 28 Mass. App. Ct. 371, 379 n. 10 (1990).
The essential facts of the accident were corroborated by a coworker and the foreman for Crouse. The nature of the injuries and the prognosis were explained by Callahan's physician. For the familiar reasons set out in Davis v. Boston Elev. Ry., 235 Mass. 482, 496-497, 502 (1920), and Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60-61 (1948), we think no abuse of discretion attended the trial judge's denial of the defendant's motion for a new trial. See also Burke v. Gallison, 7 Mass. App. Ct. 918, 919 (1979); Kord v. Baystate Med. Center, Inc., 13 Mass. App. Ct. 909, 910 (1982). Edison insists that Callahan ignored an open and obvious danger (a position facially inconsistent with Edison's assertion that the water level in the trench had not risen as high as claimed because no alarm went off) and that the jury, therefore, should have found some contributory negligence (in answers to special questions they found none).
The plaintiff had the obligation to remind the judge if she wished still to insist on the instruction. Burke v. Gallison, 7 Mass. App. Ct. 918, 919 (1979). 3. The judge's formbook instruction on notice and prejudice would have been better left unsaid, as there had been no evidence of either.
Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60-61 (1948). Burke v. Gallison, 7 Mass. App. Ct. 918, 919 (1979). We discern no abuse of discretion.