Alexander v. Kramer Bros. Freight Lines, Inc.
United States Court of Appeals for the Second Circuit
273 F.2d 373 (2d. Cir. 1959)
During a mid-trial conference, the judge told the parties the burden of proving contributory negligence would fall on defendant Kramer, and Kramer's counsel said "I take exception" at that time; days later, when the judge actually instructed the jury with that same burden allocation (which was legally incorrect, since the burden should have been on the plaintiff Alexander), Kramer's counsel said nothing and did not restate the earlier exception. The jury found for Alexander, and Kramer appealed based on the erroneous instruction.
Whether a party may appeal based on a jury instruction if its exception to that instruction was raised only at an earlier mid-trial conference and not restated when the instruction was actually given to the jury.