In a motion to appeal against a jury verdict in a personal injury case brought by a defendant who failed to raise his objections to the trial judge on the motion, can the appellant appeal to the Court of Appeal to review the motion by the same judge?

Rule 51 of the Federal Rules of Civil Procedure provides: "* * * No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. * * *" The purpose of this salutary rule is to expedite the administration of justice by insuring that the trial judge is informed of possible errors so that he may have an opportunity to reconsider his charge, and, if necessary, to correct it.⁸ While we recognize the discretionary power of an appellate court in a proper case to review of its own motion errors not saved by proper objection,⁹ we think this discretion

[234 F.2d 260]

should be exercised sparingly and only in exceptional cases.¹⁰ Without attempting to state a rule or delineate situations in which it would be proper to exercise this discretion in favor of an appealing party, we think the language in United States v. Atkinson, 1936, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555, and quoted with approval in Johnson v. United States, 1943, 318 U.S. 189, 200, 63 S.Ct. 549, 87 L.Ed. 704, vividly calls to mind the type of situation in which we would be favorably disposed to review alleged errors despite the failure of the appealing party to raise his objections below: "In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings." Emphasis added.

[234 F.2d 260]