7.20 FEDERAL
EMPLOYERS LIABILITY ACT — COMPARATIVE NEGLIGENCE Civil Model Jury Charge
(Approved
pre-1984)
If,
in accordance with the principle of law heretofore given you, you find that the
defendant was negligent and that the plaintiff was contributorily negligent,
you will apply the following provision of the Federal Employers Liability
Act, 45 U.S.C.A., Sec. 53:
In
all actions against any common carrier by railroad to recover damages for
personal injuries to an employee, the fact that the employee may have been
guilty of contributory negligence shall not bar a recovery but the damages
shall be diminished by the jury in proportion to the amount of negligence
attributable to such employee.
This
provision which deals with the effect of the employee's contributory negligence
upon the amount of his/her recovery states two principles of law:
§ The fact that the employee may have been guilty
of contributory negligence shall not bar a recovery, but
§ if the employee is guilty of contributory
negligence the effect of such contributory negligence is that the damages the
employee is entitled to shall be diminished by you in proportion to the amount
of such contributory negligence.
These
provisions of law are applicable to the facts in this case in the following
manner:
First,
ascertain the amount of damages that the plaintiff would be entitled to without
reference to his/her contributory negligence.
Second, ascertain the proportion or
percentage of such amount of damages which is attributable to plaintiff's
contributory negligence.
Third,
diminish the amount ascertained in the first step by the proportion or
percentage of contributory negligence ascertained in the second step.
The
amount remaining is the amount the plaintiff is entitled to.
Alternate Charge
If,
in accordance with the principles of law heretofore given you, you find that
the defendant was negligent and that the plaintiff was contributorily
negligent, you will apply the following provision of the Federal Employers
Liability Act, 45 U.S.C.A., Sec. 53:
In
all actions against any common carrier by railroad to recover damages for
personal injuries to an employee, the fact that the employee may have been
guilty of contributory negligence shall not bar a recovery but the damages
shall be diminished by the jury in proportion to the amount of negligence
attributable to such employee.
This provision which deals with the effect of the
employee's contributory negligence upon the amount of his/her recovery, states
two principles of law:
§ The fact that the employee may have been guilty
of contributory negligence shall not bar a recovery, but
§ if the employee is guilty of contributory
negligence the effect of such contributory negligence is that the damages the
employee is entitled to shall be diminished by you in proportion to the amount
of such contributory negligence.
To explain how to apply the doctrine of
comparative negligence to the facts of this case, I shall use an illustration.
You may determine that the amount of
the plaintiff's damages for his/her personal injuries was X dollars and that
the percentage or proportion of that amount of X dollars which is attributable
to the plaintiff because of his/her contributory negligence is 50%. You would compute what 50% of X dollars is,
that is 50 cents times each of X dollars, and diminish the amount of X dollars
by 50% or 50 cents out of each dollar, which would leave the amount of 50% of X
dollars to which the plaintiff would be entitled in your verdict.
You may determine that the amount of
the plaintiff's damages for his/her personal injuries was X dollars and that
the percentage or proportion of that amount of X dollars which is attributable
to the plaintiff because of his/her contributory negligence is 10%. You would compute what 10% of X dollars is,
that is 10 cents times each of X dollars, and diminish the amount of X dollars
by 10% or 10 cents out of each dollar, which would leave the amount of 90% or X
dollars to which the plaintiff would be entitled in your verdict.
You
may determine that the amount of the plaintiff's damages for his/her personal
injuries was X dollars and that the percentage or proportion of that amount of
X dollars which is attributable to the plaintiff because of his/her
contributory negligence is 90%. You would
compute what 90% of X dollars is, that is, 90 cents times each of X dollars,
and diminish the amount of X dollars by 90% or 90 cents out of each dollar,
which would leave the amount 10% of X dollars to which the plaintiff would be
entitled in your verdict.
Cases:
Tiller v. Atlantic
Coast Line R. Co., 318 U.S.
54, 87 L.Ed. 610, 63 S.Ct. 444 (1943); Bashco v. Pennsylvania
Railroad Co., 3 N.J. Super. 86, 90, 91 (App. Div. 1949); Hardy
v. D.L. & W.R.R. Co., 97 N.J.L. 358, 361 (Sup. Ct. 1922); Koshorek
v. Pennsylvania Railroad Co., 318 F.2d 364 (3d Cir. 1963).
As
to concurrent jurisdiction see Miles v. Illinois Central R. Co.,
315 U.S. 698, 86 L.Ed. 1129, 62 S.Ct. 827 (1942). Forum
non conveniens may be asserted by a State court in a F.E.L.A. case. Vargas
v. A.S. Bull Steamship Co., 44 N.J. Super. 536 (App. Div.
1957).
NOTE TO JUDGE
State
and Federal courts have concurrent jurisdiction in Federal Employers
Liability Act cases. See 45 U.S.C.A., Sec. 56.
45
U.S.C.A., Sec. 51 provides generally that every common carrier by
railroad, if negligent, shall be liable to its employees for damages arising
out of injuries or death.
45
U.S.C.A. Sec. 53 provides that "In all actions hereafter brought
against any such common carrier by railroad under or by virtue of any of the
provisions of this chapter to recover damages for personal injury to an
employee, or where such injuries have resulted in his death, the fact that the
employee may have been guilty of contributory negligence shall not bar a
recovery, but the damages shall be diminished by the jury in proportion to the
amount of negligence attributable to such employee: Provided, that no such employee who
may be injured or killed shall be held to have been guilty of contributory
negligence in any case where the violation by such common carrier of any
statute enacted for the safety of employees contributed to the injury or death
of such employee. April 22, 1908, c.
140, Sec. 3, 35 Stat. 66."
