Alexander (plaintiff) got into a truck accident with Holman, who was driving a truck owned by Kramer Bros. Freight Lines, Inc. (Kramer) (defendant). The drivers had conflicting accounts of how the accident occurred, raising contributory negligence as an issue for the jury. In a meeting with the judge near the close of Alexander’s case, the judge stated that the burden of proof of contributory negligence was on Kramer. Kramer stated “I take exception” at that time. Several days later during jury instructions, the judge instructed the jury that Kramer had the burden of proof of contributory negligence. Kramer did not take exception when this instruction was given, nor did he mention or provide any support for his earlier exception. In actuality, under applicable law, the burden should have been on the plaintiff, Alexander, to prove that he was not contributorily negligent. The court ruled in favor of Alexander, and Kramer appealed on the grounds that the judge’s jury instruction on burden of proof was improper.