Baten v. Kirby Lumber Corp., 5 Cir., 1939, 103 F.2d 272, 274. See also Boudreaux v. Mississippi Shipping Co., 5 Cir., 1955, 222 F.2d 954; Moore v. Stephens, 6 Cir., 1959, 271 F.2d 119; Moore, Federal Practice, Section 50.05(1) (2d Ed.); Barron and Holtzoff, Federal Practice and Procedure, Section 1081, p. 781. An appellate court may reverse a district court for denial of a new trial based on the ground that the verdict was against the weight of the evidence only if the denial was "an abuse of discretion". It is difficult to define what constitutes an abuse of discretion. Discussing the problem in Whiteman v. Pitrie, 5 Cir., 1955, 220 F.2d 914, 919, Judge Rives, for the Court, stated:
This Court has recognized that the underlying purpose of the rule is to prevent needless retrials by affording the trial judge a chance to think over the instructions in light of potential objections on appeal. Moore v. Stephens, 271 F.2d 119 (6th Cir. 1959). Rule 51 provides in relevant part:
The purpose of the Rule is to inform the court of possible errors in the charge "to afford [the] trial judge opportunity to correct error in his charge before the case is finally submitted to the jury." Moore v. Stephens, 271 F.2d 119, 120 (6th Cir. 1959). The court, insofar as the instructions were covered by the appellant's proposals and objections to the appellee's proposals, was aware of the appellant's objections to the charge as given. To that extent, the requirements of Rule 51 have been met.
The purpose of the Rule is to inform the court of possible errors in the charge "to afford [the] trial judge opportunity to correct error in his charge before the case is finally submitted to the jury." Moore v. Stephens, 271 F.2d 119, 120 (6th Cir. 1959). The court, insofar as the instructions were covered by the appellant's proposals and objections to the appellee's proposals, was aware of the appellant's objections to the charge as given. To that extent, the requirements of Rule 51 have been met.
On this appeal the railroad cannot take advantage of an objection which it never presented to the trial court. Vareltzis v. Luckenbach Steamship Co., 2 Cir., 258 F.2d 78, 80. See also Cross v. Ryan, 7 Cir., 124 F.2d 883, 887, cert. denied 316 U.S. 682, 62 S.Ct. 1269, 86 L.Ed. 1755; State Fuel Co. v. Gulf Oil Corp., 1 Cir., 179 F.2d 390, 396-397; and Moore v. Stephens, 6 Cir., 271 F.2d 119. Wyoming has followed the principle stated. Colwell v. Anderson, Wyo., 438 P.2d 448, 452.
The purpose of this rule is to enable the trial judge to avoid error by affording him an opportunity to correct statements and avoid omissions in his charge before the cause has been decided by the jury. Swiderski v. Moodenbaugh, 143 F.2d 212 (9th Cir., 1944); Moore v. Stephens, 271 F.2d 119 (6th Cir., 1959); Sweeney v. United Feature Syndicate, 129 F.2d 904 (2d Cir., 1942). The objection need not be formal, but the rule is satisfied only if it is clear that the judge was made aware of the error in or omission from the instructions.
Since defendant was not deprived of its defense of contributory negligence and no instruction was given on punitive damages, we do not regard the error as prejudicial. Defendant did not object to the instruction on the ground that the definition of the words "wanton" or "wilful" was inaccurate and misleading or bring the matter to the attention of the trial judge so that he would have the opportunity to correct it if he so desired. Under the circumstances, the point may not be presented here. Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A.; McPherson v. Hoffman, 275 F.2d 466 (C.A. 6); Moore v. Stephens, 271 F.2d 119 (C.A. 6). We think that under the evidence in this case the question of plaintiff's contributory negligence was for the jury to determine and the court did not err in submitting it to the jury.
The purpose of the requirement to timely object is to enable the Court to correct error in the instructions before the case is submitted to the jury. Moore v. Stephens, 271 F.2d 119, 120 (6th Cir. 1959). Rule 51 of the Federal Rules of Civil Procedure 51 provides in part: