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Nilsson v. Bierman12/29/2003
ich provides:
The issue of speed of a motor vehicle on a public highway, if material, will be submitted on the grounds of reasonableness without regard to statutory provisions relative to rates of speed that are prima facie reasonable, unless counsel objects thereto at the pretrial settlement conference, or files written objection thereto at least seven days before the trial.
Super. Ct. R. 63(H). The plaintiff counters that defendant did not make this argument before the trial court, and, thus, did not preserve it for appeal. See Transmedia Restaurant, 149 N.H. at 457. We agree.
"A contemporaneous objection is necessary to preserve a jury instruction issue for appellate review." Id. (quotation omitted). Without a contemporaneous objection, the trial court is not afforded the opportunity to correct an error it may have made. Id. The defendant did not alert the trial court that its instruction violated Superior Court Rule 63(H). He "may not, on appeal, ask this court to address issues that, for tactical reasons or otherwise, failed to raise before the trial judge." Id. at 458.
C. RSA 265:67, II
The defendant next contends that the court's instructions conflict with RSA 265:67, II (1993), which states that prima facie speed limits "shall not be construed to relieve the plaintiff in any action from the burden of proving negligence on the part of the defendant as the proximate cause of an accident." Viewing the court's instructions as a whole, we agree with the plaintiff that they adequately explained the law under RSA 265:67. See Transmedia Restaurant, 149 N.H. at 457.
The court's jury instructions included the following:
Negligence is the failure to use reasonable care. . . . Failure to exercise due care amounts to legal fault if you find it caused or contributed to cause the injury or damage suffered by the plaintiff.
With respect to the plaintiff's claim of legal fault against the defendant, the plaintiff has the burden of proof.
In order to recover, the plaintiff[ ] must prove that the defendant is legally at fault for the injury. To do this, the plaintiff must prove that the defendant was negligent, and th such liability was a legal cause of the accident and injury.
Negligence amounts to legal fau t if you find that the negligence was a legal cause of the injury. When are they a legal cause of harm? When the negligence is a substantial factor in bringing about the harm, and if the harm would not have occurred without that conduct. On the other hand, if negligent conduct is not a substantial factor in bringing about the harm, it cannot be the basis for a finding of legal harm.
In determining whether the defendant's conduct was a legal cause of the plaintiff's injury, you need not find that the defendant's conduct was the sole cause of the injury. You need only find that it was a contributing factor in causing the accident, although other factors may have contributed to cause the accident.
If you decide that defendant was legally at fault, you will then decide whether plaintiff has proved any of the items of loss or harm that I shall talk about in a couple of minutes.
For each item of loss or harm that plaintiff claims, plaintiff must prove that it is more probable than not, that (1) plaintiff has (or will have) such a loss or harm and (2) the loss or harm was caused by the legal fault of defendant.
These instructions adequately apprised the jury that the plaintiff had the burden of proving the defendant's negligence as the proximate cause of the accident, as required by RSA 265:67.
The defendant contends th
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