208 N.W.2d 865 | Minn. | 1973
In this action for death by wrongful act arising out of a bicycle and tractor-trailer accident which resulted in the death of plaintiff trustee’s 11-year-old son, the jury found defendant truckdriver free of any negligence.
Upon plaintiff’s appeal from a denial of her post-trial motion for a new trial, she asserts for the first time that the court erred (1) in failing to instruct the jury that an experienced truckdriver is held to a higher degree of care than the “reasonable man” standard; and (2) in failing to include in its instructions the duty toward children on a roadway imposed by Minn. St. 169.21, subd. 3.
The errors now claimed were not assigned as grounds for a new trial, and no exceptions or objections were taken, as required by Rule 51, Rules of Civil Procedure, before the jury retired to deliberate. It is elementary that upon a record of this kind the instructions become the law of the case and may not be challenged for the first time on appeal.
It may be observed that, quite apart from the rule limiting the scope of our review of such claimed errors, our reading of the transcript of the trial satisfies us that the court’s instructions, read as a whole, properly and adequately covered both the driver’s common-law and statutory duties of reasonable care as well as his duty to “exercise proper precaution upon observing any child * * * upon a roadway” embodied in § 169.21, subd. 3. Furthermore, the evidence compellingly supports the jury’s finding that defendant truckdriver was not negligent.
Affirmed.