(dissenting).
I am unable to agree with the majority of the court that the judgment should be reversed or with the opinion concurred in by two members of the majority.
The record discloses that at the conclusion of the testimony the court granted four prayers requested by the plaintiff and four requested by the defendants, including defendants’ instruction No. 6, as to which error is claimed.
Concerning this instruction, the record states: “The defendants * * * tendered to the Court the following instruction [defendants’ instruction No. 6] which the Court granted to the defendants over the objection .and exception noted by the attorney for plaintiff.” The grounds of the objection and exception were not given, *817and it is clear that it amounted only to a general exception by plaintiff. No objection or exception was taken by plaintiff to the charge of the court in any respect.
The opinion of Mr. Justice STEPHENS points out that “it is not claimed by the plaintiff that the instruction complained of is an incorrect statement of the law applicable to a situation where the obligations involved are merely those between the drivers of two cars approaching an intersection. * * * In short, the plaintiff complains that the instruction should have been qualified by a statement to the effect that the duty of a common carrier to its passenger is paramount to the right of the common carrier to pursue its right-of-way in respect of another car.” (Italics supplied.)
In view of the general charge of the court, to which plaintiff took no exception, the plaintiff ought not to be permitted to urge upon appeal error which was not pointed out to the trial judge. Plaintiff should have sought in the trial court to have the instruction qualified in the manner now presented.
In Walsh v. Rosenberg, 65 App.D.C. 157, 81 F.(2d) 559, 561,. appellant claimed error in an instruction, and in the trial court based his objection on “the doctrine of res ipsa loquitur, * * On appeal he sought to base error in the instruction on a ground not presented to the trial court; namely, that “it required appellant to overcome the presumption by preponderating testimony.” We held, in an opinion by Mr. Justice Groner, that while “it is obvious that the court below erred in requiring appellant to overcome the presumption by ‘preponderating’ evidence,” nevertheless the error could not be availed of on appeal. We further said: “We think there can be no question of doubt that the objection made to the prayer had no reference to that part of it which we have been discussing. It is manifest it did not call the attention of the court to the fact that the instruction 'imposed a higher burden of proof on the defendant (appellant) than we have said was proper in the circumstances; and we think it may be safely assumed that if it had, the court would have reformed the instruction in accordance with the rule laid down by this court. Viewed in this light, we think the objection now comes too late. It is the duty of counsel objecting to a charge of the court to call the attention of the court to the particular subject-matter to which the objection is directed, and if counsel fails in this duty the objection cannot be made for the first time in the appellate court.”
In my view, the judgment should be affirmed.
I am authorized to state that Mr. Chiei Justice MARTIN concurs in this dissent.