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Plaintiff has sued [two] [several] defendants including plaintiff's [decedent's] employer. Since certain legal principles are different where the employee is suing the employer and where the employee is suing someone other than the employer, I will segregate the instructions as follows:
1. I will first give you instructions dealing with general principles of law that apply equally to all of the parties.
2. I will next instruct you on the law that applies exclusively to the case of plaintiff against defendant[s] ____________________. (third party)
3. I will next instruct you on the law that applies
exclusively between plaintiff and plaintiff's [decedent's] employer, defendant ____________________. (railroad)
4. I will next instruct you on the subject of the measure of damages which will apply to plaintiff's claim against defendant[s] ______________________. (third party)
5. I will next instruct you on the subject of the measure of damages which applies between plaintiff and defendant _____________________. (railroad) | TOP |
A
I will now give you instructions dealing with general principles of law that apply equally to all the parties
*****
B
I will now instruct you on the law that applies exclusively to the case of plaintiff against defendant[s] __________ (third party).
*****
C
I will now instruct you on the law that applies exclusively between plaintiff and plaintiff's [decedent's] employer, defendant __________ (railroad).
*****
D
I will now instruct you on the subject of the measure of damages which will apply to plaintiff's claim against defendant[s] __________ (third party).
*****
E
I will now instruct you on the subject of the measure of damages which applies between plaintiff and plaintiff's [decedent's] employer, defendant __________ (railroad). | TOP |
The plaintiff __________ [also] seeks to recover damages under a law of the United States commonly called the Federal Employers' Liability Act. This title does not mean that every employer is liable to every employee for every injury. The legal principles that govern the employer's liability will be stated to you in the instructions that follow. | TOP |
In this case plaintiff has sued [two] [several] defendants. The claim against plaintiff's [decedent's] employer __________ (railroad) is brought in plaintiff's [decedent's] capacity as an employee. The rights, duties and obligations between plaintiff [decedent] employee and the employer __________ (railroad) in this case are based upon a law of the United States commonly called the Federal Employers' Liability Act. This title does not mean that every employer is liable to every employee for every injury. The instructions I am about to give you apply exclusively between the plaintiff [deceased] employee and the defendant employer, __________ (railroad), and have no application [unless specifically stated otherwise] to plaintiff's claims against the other defendant[s] __________ (third party). | TOP |
The Federal Employers' Liability Act under which the plaintiff claims the right to recover damages in this action provides in part that:
Every common carrier by railroad while engaging in commerce between any of the several states shall be liable in damages to any person suffering injury while employed by such carrier in such commerce for such injury resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.
[It is conceded that, at the time and place alleged in the complaint, the defendant was a common carrier by railroad engaged in interstate commerce; that the plaintiff was then an employee of the defendant engaged in such commerce; and that the plaintiff's right, if any, to recover [on the cause of action based upon negligence] in this case is governed by the provisions of the Federal Employers' Liability Act.] | TOP |
The plaintiff in this case is the [executor of the will] [administrator of the estate] of __________, deceased, and brings this action for the benefit of __________ who [is] [are] the [beneficiary] [beneficiaries].
The Federal Employers' Liability Act under which the plaintiff claims the right to recover damages in this action provides in part that:
Every common carrier by railroad while engaging in commerce between any of the several states shall be liable in damages in the case of the death of an employee resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.
[It is conceded that at the time and place alleged in the complaint, the defendant was a common carrier by a railroad engaged in interstate commerce; that the decedent was then an employee of the defendant engaged in such commerce; and that the plaintiff's right, if any, to recover [on a cause of action for the death of the decedent based upon negligence] in this case is governed by the provisions of the Federal Employers' Liability Act.] | TOP |
The negligence of defendant __________ (railroad), if any, consists of negligent conduct on the part of any of its officers, agents, or employees, other than the plaintiff, done within the scope of such person's authority.
It is not necessary that a particular act or failure to act be expressly authorized by the principal to bring it within the scope of such person's authority. Conduct is within the scope of authority if it occurs while the person is engaged in the duties which such person was employed to perform and relates to those duties. Conduct for the benefit of the principal which is incidental to, customarily connected with, or reasonably necessary for the performance of an authorized act, is within the scope of authority of an officer, agent or employee. | TOP |
A continuous duty exists on the part of an employer, [such as the defendant __________ (railroad) in this case,] to use ordinary care in furnishing its employees with a reasonably safe place within which to work. The amount of caution required by that duty varies in direct proportion to the dangers known to be involved in the work.
Thus, the amount of caution required of a railroad company, in the exercise of ordinary care, to furnish its employees a reasonably safe place within which to work, increases or decreases as do the dangers known to exist or that reasonably should be apprehended.
In the absence of knowledge or notice to the contrary and in the absence of circumstances that caution an employee or would caution a reasonably prudent person in like position to the contrary, an employee may assume that the employer has exercised ordinary care in furnishing a reasonably safe place within which to work, and the employee may rely and act on that assumption.
[The duty to furnish a reasonably safe place to work is a non-delegable duty. "Non-delegable" means that where, as in this case, there is a duty required of an employer to provide a reasonably safe place to work for its employees, that duty and responsibility may not be transferred in any manner or in any degree to anyone else so as to relieve that employer of that duty.] | TOP |
An employer, [such as the defendant __________ (railroad),] has a duty to use ordinary care to provide employees with reasonably safe and suitable tools, machinery and appliances with which to do their work.
However, the employer is not required to furnish the latest, best and safest tools, machinery or appliances, or to discard standard tools, machinery or appliances upon the discovery of later developments. Neither is there any duty on the employer to anticipate the misuse of equipment nor to guard against the consequences of misuse.
Ordinarily, an employee is not required to make an inspection of the tools that the employer furnishes. In the absence of knowledge to the contrary and in the absence of circumstances that caution such employee or would caution a reasonably prudent person in like position to the contrary, an employee may assume that the employer has furnished safe tools and appliances with which to perform such work, and may rely and act on that assumption.
However, it is the duty of the employee to use ordinary care to discover open and obvious defects which render such tools dangerous to use in the performance of such work. | TOP |
An employee is engaged in the duties of employment when doing something connected with and in aid of the tasks [he] [or] [she] was employed to perform.
If an employee is acting for the benefit of the employer and such person's conduct is incidental to, customarily connected with, or reasonably necessary for, the performance of the task assigned, it is within the scope of employment, whether or not such conduct was expressly authorized. | TOP |
In this case it is established that [plaintiff] [the decedent] was engaged in the duties of employment at the time it is claimed the [fatal] injury occurred. | TOP |
[The law has its own particular way of defining cause.]
In claims arising under the Federal Employers' Liability Act, an act or omission that plays any part, no matter how small, in actually bringing about [injury] [or] [death], is a cause of such [injury] [or] [death]. If you find from the evidence that any negligence on the part of defendant __________ (railroad) or [plaintiff] [decedent] contributed in any way or manner toward [the death of __________] [any injury suffered by plaintiff], you will find that [injury] [death] was caused by such act or omission. | TOP |
There may be more than one cause of an injury. When negligent conduct of two or more persons contributes concurrently as causes of an injury, the conduct of each of said persons is a cause of the injury regardless of the extent to which each contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. | TOP |
If a carrier, such as the defendant [__________ (railroad)] was negligent, and its negligence was a cause of [injury to] [the death of] an employee, the carrier is liable in damages, [subject only to reduction for the employee's contributory negligence, if any,] although the carrier's negligence was not the sole cause of the [injury] [death] and although the negligence of a third person, other than the injured employee or the carrier, may have contributed in equal, greater, or lesser degree, in causing the [injury] [death]. | TOP |
The defendant __________ (railroad) does not insure nor guarantee its employees against the possibility of accident. It can be held liable only if you find it failed to perform a duty imposed by law as stated in these instructions. | TOP |
It was the continuing duty of [the plaintiff] [the deceased] to exercise ordinary care for [his] [her] own safety.
If [plaintiff] [the deceased] failed in such duty, [he] [she] was negligent. If such negligence was the sole cause of the injury, then [plaintiff] [deceased] may not recover.
If [plaintiff's] [deceased's] conduct amounted to contributory negligence as to any injury suffered, and if you should find that the defendant is liable for such injury [because of negligence and not because of the violation of [the Safety Appliance Acts] [or] [the Boiler Inspection Act]], then, in fixing the damages to be awarded plaintiff for that injury, a proportionate reduction must be made because of such contributory negligence in accordance with my instructions. | TOP |
In this case plaintiff [also] seeks to establish liability against [his] [her] [decedent's] employer __________ (railroad) on two [several] different theories: negligence and a claimed violation of [a] certain federal statute[s] enacted for the safety of employees of railroads, known as the Federal Safety Appliance Acts or the Safety Appliance Acts [which include provisions referred to as the Locomotive or Boiler Inspection Act]. You have been instructed on the law of negligence as it applies in this case between plaintiff [decedent] and defendant __________ (railroad), the employer. I will now instruct you on the law pertaining to the claimed violation of the [Safety Appliance Acts] [Locomotive Inspection Act]. | TOP |
In this case plaintiff [also] seeks to establish liability against [his] [her] [decedent's] employer, __________ (railroad), upon a claimed violation of [a] certain federal statute[s] enacted for the safety of employees of railroads, known as the Federal Safety Appliance Acts or the Safety Appliance Acts [which include provisions referred to as the Locomotive or Boiler Inspection Act] | TOP |
Under these federal statutes, if a railroad, such as the defendant, violates any such statute, and if the violation contributes in any way or manner to the injury [and death] of an employee who, when so injured, was engaged in the duties of employment, such railroad is liable in damages [to that employee] [for the death of that employee].
The law also provides that such liability shall exist whether or not the railroad exercised reasonable care in respect to its equipment, and whether or not the employee so injured was guilty of [contributory] negligence. | TOP |
In this action, plaintiff claims that defendant violated [the law] [each of the provisions of the law] just stated to you and that said violation[s] contributed in some way or manner to [plaintiff's injury] [the injury and death of __________, deceased].
The defendant denies that it committed [the alleged violation] [any of the alleged violations].
[Defendant claims also that even if it did violate any of the provisions of such statute[s], such violation did not contribute in any way or manner to [any injury] [or] [the death] [of the plaintiff] [of the deceased employee, __________].]
These conflicting claims and denials present issues that you must decide | TOP |
The Federal Safety Appliance Acts impose upon a railroad carrier, such as the defendant in this case, an absolute duty to equip its cars with efficient brakes and to maintain such brakes in an efficient, operating condition.
To be efficient, the hand brake must be capable of operation and kept in such condition that it shall at all times be operative; hence, the test of compliance with the requirement of the statute is primarily effectiveness in operation, and the question is whether or not the brake was able to produce an efficient result when properly applied. If it was so effective, then it was efficient within the requirements of the law. | TOP |
To comply with the law just stated, a coupler must be one which, when operated in the manner intended, performs its functions in all the ordinary conditions under which couplings or uncouplings are made.
The duty of the defendant was to equip the car in question with a coupler, which, when operated in the manner intended, would work efficiently by raising the cutting lever.
If you should find that the [plaintiff] [deceased], in the performance of his duties, gave the coupler a fair trial with the cutting lever or pin lifter in conformity with the intended manner of operation, and the coupler, when so operated, failed to work efficiently, and it became necessary to go between the cars to operate the same, then you must find that the railroad violated the act aforementioned. | TOP |
If you find that a coupler broke under ordinary operational conditions of railroad work, then you must also find that the coupler was defective and that it was furnished and used in violation of the Safety Appliance Acts. | TOP |
If, under the court's instructions, you find that plaintiff is entitled to a verdict against defendant, you must then award plaintiff damages in an amount that will reasonably compensate [him] [her] for each of the following elements of claimed loss or harm, provided that you find it was [or will be] suffered by [him] [her] as a result of [negligence] [or] [a violation of the Safety Appliance Acts] on the part of the defendant employer which contributed in any way or manner in causing it. The amount of such award shall include: | TOP |
If, under the court's instructions, you should find that plaintiff is entitled to damages, you will award such sum as, under all the circumstances of the case, will be just compensation for the economic loss suffered by [the beneficiary of the action, namely, __________, the __________ of __________, deceased,] [all the beneficiaries of this action, the names of whom I previously gave you,] which loss has resulted and is reasonably certain to result from the death of said employee.
The measure of said loss [in the case of each beneficiary], insofar as it relates to the future, is the present cash value of the future benefits of which the beneficiary has been deprived by the death, and which are capable of measurement by a economic standard. | TOP |
If you find that the plaintiff is entitled to damages, and you find that __________, the deceased employee, was not contributorily negligent, you will award plaintiff such sum as, under all the circumstances of the case, will be just compensation for the economic loss suffered by [the beneficiary of the action, namely, __________, the __________ of __________, deceased,] [all the beneficiaries of this action, the names of whom I previously gave you,] which loss has resulted and is reasonably certain to result from the death of said employee. You will be instructed how to measure such loss.
If you find that said __________, deceased, was contributorily negligent, then before you diminish the damages in proportion to the amount of negligence attributable to the deceased, you will determine the amount of damages to which plaintiff would have been entitled had it not been for such contributory negligence. | TOP |