Before McLAUGHLIN and FORMAN, Circuit Judges, and LEAHY, District Judge.
Plaintiff, a pedestrian, was struck by a vehicle owned by the County of Mercer, in the State of New Jersey, and operated by its then Sheriff, John Condon. The accident occurred a short time after 2:00 a.m., on Nottingham Way, a three-lane, concrete highway, having on its north side a macadam shoulder estimated to be fifteen or sixteen feet wide.
Prior to the accident, plaintiff had several drinks of whiskey at a tavern situated on Nottingham Way. He arrived there 12:30 a.m. and departed 2:00 a.m. with five friends. Evidence presented showed plaintiff and his companions walking four abreast on the shoulder of the highway, a place of known danger to plaintiff; they were walking with traffic instead of facing it as required by the applicable New Jersey Motor Vehicle Act; and plaintiff was aware of the sidewalk on the other side of the road. Prior to impact, Sheriff Condon was driving between thirty and forty miles per hour in a fifty miles per hour speed zone, the right side of his vehicle being about a foot on the macadam shoulder. Defendants, representatives of Condon's estate and County of Mercer, contend plaintiff was engaging in "horse play" and stumbled into the path of the automobile. Plaintiff contends Condon was negligent in not operating in the proper section of the road and in not observing the pedestrians in time to avoid the accident, since the Undersheriff, who was about sixty feet to the rear of Condon, saw their heads "bobbing up and down."
Plaintiff moved for directed verdict as to contributory negligence, which was denied.The jury returned a verdict of no cause of action, since both defendants and plaintiff were negligent. Plaintiff's motion for judgment or new trial was denied, and these appeals followed*fn1
1. JURY CHARGE. Plaintiff contends the charge of the court on applicable legal principles is no different from that condemned as "most general and inadequate" in McNello v. John B. Kelly, Inc., 3 Cir., 283 F.2d 96, 101-102, and Atkinson v. Roth, 3 Cir., 297 F.2d 570, 574. We disagree.
While no effort was made in McNello and Atkinson to explain to the jury application of principles of law to various possible factual conclusions, the trial court in the instant case pointed out with clearness and conciseness the precise issues in controversy and relevant rules of law. A succinct recital of the evidence with instructions on alternate conclusions distillable from the evidence was given. The contentions of the parties were outlined and the functions of the court and jury and the burden of proof of negligence and contributory negligence was described. In connection with the duty required of Condon, the trial judge stated:
"I charge you that Sheriff Condon was under a duty in the operation of the County car that he had in his control. He was under a duty to exercise the degree of care, precaution and vigilance which a reasonably prudent person would have exercised at the time and at the place and under the circumstances that then existed on the early morning of September 25. If Sheriff Condon did not exercise that degree of care, the reasonably prudent man rule, if he did not, he was guilty of negligence. If he did not exercise that degree of care, he was negligent.
And if that negligence was the sole and proximate cause of subject accident wherein plaintiff sustained these injuries, then the plaintiff is entitled to a verdict against Sheriff Condon. He would also be entitled to a verdict against the County of Mercer. Sheriff Condon's negligence, if you find he was negligent, is imputable to the County of Mercer, and this is so because under the law of New Jersey which governs here, a governmental agency is liable for the wrongful acts of commission of its employees acting within the scope of their employment, and I charge you the negligent driving of an automobile, if you find such, is a wrongful act of commission."
After discussing the theory of negligence insofar as it pertained to defendants, the trial judge gave corresponding instructions as to the duty required of plaintiff and the theory of negligence as to him.
Also explained by the trial court was the concept of proximate cause and the relation of that doctrine to the evidence. Plaintiff contends, however, the verdict that both defendants and plaintiff were negligent demonstrates the jury did not understand negligence of plaintiff did not preclude recovery in the absence of proximate causation. In view of the court repeating on numerous occasions plaintiff's negligence must be the proximate cause of the accident to bar recovery*fn2, we are satisfied the jury had the necessary understanding of what was required for a verdict of no cause of action. That the foreman's announcement of the verdict did not coincide verbatim with the court's form of verdict is without significance*fn3
We conclude the trial judge gave an adequate charge as to applicable legal principles and their relation to the evidence. But even assuming, arguendo, the charge was erroneous, the verdict could not be set aside since no objection as required by Rule 51, Fed.R.Civ.Proc., 28 U.S.C. was made. We could not deem the charge, in any event, to be so fundamentally unfair as to have resulted in a gross miscarriage of justice.
2. REFERENCE TO CONSUMPTION OF WHISKEY. Plaintiff argues it was prejudicial abuse of discretion to permit comment by defense counsel and testimony as to consumption of whiskey by plaintiff prior to the accident. Reference is made by plaintiff to Rosa v. City of Chester, 3 Cir., 278 F.2d 876, 879, in which the following is stated:
"* * * the Pennsylvania courts would consider the admission of the evidence of drinking intoxicating beverages by Thompkins and the purchase of whiskey by the decedent of a prejudicial nature, unless its ...