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Lawyers devoted to helping railroad workers and their families get their lives back on track following on the job injuries. 

Jury Charges
Jury charges are instructions to the jurors.  These instructions may be complex and are often pivotal in a jury's discussions.  If an FELA case goes to trial, these are samples of the instructions the judge will give the jury to direct them in their deliberations.

General Instruction Used in a Bad Switch Case

General Instruction relating to recoverable damages in FELA cases


 General Instruction Used in a bad switch case:


In this case, the Plaintiff’s claims are asserted under the Federal Employers’ Liability Act and violations of Federal Safety Regulations by the Defendant.  Plaintiff’s first claim is based upon the Federal Employers’ Liability Act (known as the FELA), which provides that every common carrier by railroad, while engaged in commerce between any of the several states, shall be liable in damages to any of its employees who are injured as a result of negligence by the railroad.  In order to prevail on this claim the Plaintiff must prove each of the following elements by a preponderance of the evidence:

First:  That at the time of the Plaintiff’s injury, Plaintiff was an employee of the Defendant performing duties in the course of his employment - the Defendant has agreed Plaintiff has satisfied this element;

Second:  That the Defendant was at such time a common carrier by railroad, engaged in interstate commerce - the Defendant has agreed Plaintiff has satisfied this element;

Third:  That the Defendant was “negligent” as claimed by the Plaintiff; and

Fourth: That such negligence was a “legal cause” of damage sustained by the Plaintiff.

As noted above, in this case the parties have stipulated or agreed that the first two of these requirements have been satisfied. Accordingly, the first issues for you to consider involve items three and four, that is whether the Defendant, or any of its employees other than the Plaintiff, was “negligent” and, if so, whether such negligence was a “legal cause” of any damages sustained by the Plaintiff.

Under the FELA, it was the continuing duty of the Defendant to use reasonable care under the circumstances in furnishing the Plaintiff with a reasonably safe place in which to work, and to use reasonable care under the circumstances to maintain and keep such place of work in a reasonably safe condition.  This does not mean that the Defendant was a guarantor of the Plaintiff's safety, and the mere fact that an accident happened, standing alone, does not require the conclusion that the incident was caused by anyone’s negligence.  The extent of the Defendant’s duty is to exercise reasonable care under the circumstances to see that the place in which the work is to be performed is reasonably safe.

“Negligence” is the failure to use reasonable care.  Reasonable care is that degree of care which a reasonably careful person would use under like circumstances.  Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances, or in failing  to do something that a reasonably careful person would do under like circumstances.

For purposes of this action, negligence is a “legal cause” of damage if it played any part, no matter how small, in bringing about or actually causing the injury or damage.  So, if you should find from the evidence in the case that any negligence of the Defendant contributed in any way toward any injury or damages suffered by the Plaintiff, you may find that such injury or damage was legally caused by the Defendant’s negligence.  

You are also instructed that negligence may be a legal cause of damage even though it operates in combination with the act of another, some natural cause, or some other cause if such other cause occurs at the same time as the negligence and if the negligence played any part, no matter how small, in causing such damage.

If a preponderance of the evidence does not support the Plaintiff's claim under the FELA for negligence, then your verdict should be for the Defendant.  If, however, a preponderance of the evidence does support the Plaintiff's claim, you will then consider the defense raised by the Defendant.

The Defendant contends that the Plaintiff was himself negligent and that such negligence was a legal cause of his own injury.  This is a defensive claim and the burden of proving that claim, by a preponderance of the evidence, is upon the Defendant who must establish:

First:  That the Plaintiff was also “negligent;” and
Second:  That such negligence was a “legal cause” of the Plaintiff’s own damage.
   
If you find in favor of the Defendant on this defense that will not prevent recovery by the Plaintiff; it only reduces the amount of Plaintiff’s recovery.  In other words, if you find that the incident was due partly to the fault of the Plaintiff, that his own negligence was, for example, ten percent responsible for his own damage, then you would reduce the amount of your award to him by that percentage.  Such a finding would not prevent the Plaintiff from recovering; it will merely reduce the Plaintiff’s total damages by the percentage that you find.  Of course, by using the number ten percent as an example, I do not mean to suggest to you any specific figure at all.  If you find that the Plaintiff was negligent, you might find one percent or ninety-nine percent.

Plaintiff’s second claim is based upon alleged violations of Federal Safety Regulations.  Specifically, Plaintiff claims that Defendant violated the regulations of the Federal Railroad Administration at 49 Code of Federal Regulations §213. Specifically, Plaintiff claims that the switch with which he was working at the time he claims to have been injured was in violation of certain regulations and that these violations contributed to the cause of his injuries.  In that regard, the relevant provision of the Federal Safety Regulation is as follows:


1. Sec. 213.7  Designation of qualified persons to supervise certain renewals and inspect
This regulation requires Defendant to have qualified persons perform track inspections and for the owner to give the inspectors “written authorization”.  Defendant is also required to maintain a written record of each inspector’s qualifications 

2.    Sec. 213.13  Measuring track not under load
This regulation requires each track owner to take into account the amount of movement when the rail is loaded (when a train is on the track) when taking measurements of unloaded (empty) track. 

3.    Sec. 213.103  Ballast, general
This regulation requires each track owner to have a ballast that is structurally solid and with adequate drainage.

4.    Sec. 213.135  Switches
This regulation requires that each switch stand and connecting rod shall be securely fastened and operable without excessive lost motion.

If you should find from a preponderance of the evidence that the Defendant did violate a provisions of the Federal Safety Regulation, as alleged, by the Plaintiff, and that violation played any part, no matter how small, in bringing about or actually causing injury to the Plaintiff, then the Plaintiff is entitled to recover from the Defendant those damages which you find from a preponderance of the evidence that the Plaintiff actually sustained as a result of the violation without any requirement of a showing of negligence on the part of the Defendant.

You are further instructed that contributory negligence on the part of the Plaintiff himself is not a defense in whole or in part to damages caused by a violation of the Federal Safety Regulation.

If you find for the Plaintiff on any of his claims, you should award the Plaintiff an amount of money that will fairly and adequately compensate him for such damage, including any damage the Plaintiff is reasonably certain to expect in the future.

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 General Instruction relating to recoverable damages in FELA cases:

 If you should find that the Plaintiff is entitled to a verdict, in arriving at the amount of the award, you should include within your verdict for the Plaintiff:

(1) A sum for the reasonable value of the lost income shown by the evidence in the case to have been necessarily lost up to the present date by the Plaintiff since his injury, because of his being unable to pursue his occupation as a result of the injury.  In determining this amount, you should consider any evidence of Plaintiff’s earning capacity, his earnings, and the manner in which he ordinarily occupied his time before the injury, and find from the evidence what you believe he would have earned during the time so lost.  You are authorized to include this sum in your verdict if Defendant’s violation of a Federal Safety Regulation played any part, no matter how small, in bringing about or actually causing the loss; and

(2) You should also include such sum as will reasonably compensate the Plaintiff, as an element of his pain and suffering, for any loss of his capacity to labor, caused, in whole or in part, by the injury in question, which you find from the evidence in the case that Plaintiff will suffer in the future.  In determining this amount, you should consider what Plaintiff’s health, physical ability and earning power were before the accident and what they are now; the nature and extent of his injuries; whether or not there is evidence the injuries are permanent; or if not permanent, the extent of their duration; all on the end of determining, the effect of his injury upon his future earning capacity to labor, as a result of the injury in question. You are authorized to include this sum in your verdict if Defendant’s violation of a Federal Safety Regulation played any part, no matter how small, in bringing about or actually causing the loss; and

(3) You should also include a sum which will reasonably compensate Plaintiff for any pain, suffering and mental anguish already suffered by him and resulting from the injury in question if the Defendant’s violation of a Federal Safety Regulation played any part, no matter how small, in bringing about or actually causing this element of injury or damage; and

(4) You should include a sum to compensate Plaintiff for any pain, suffering and mental anguish which you find from the evidence in the case that the Defendant’s violation of a Federal Safety Regulation played any part, no matter how small, in bringing about or actually causing Plaintiff to suffer in the future from the same cause; and

(5) Lastly, you should also include a sum for any lost wages, benefits, and income which you find from the evidence in the case that the Defendant’s violation of a Federal Safety Regulation played any part, no matter how small, in bringing about or actually causing Plaintiff to lose in the future from the same cause.
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