If in accordance with the principles of law heretofore given you, you find that the defendant was negligent and that plaintiff was contributorily negligent, you will apply the following principle of law commonly referred to as the law of comparative negligence.
In an action such as this, to recover damages for personal injuries, the fact that the plaintiff 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 plaintiff's contributory negligence upon the amount of his/her recovery, states two principles of law:
* The fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery, but
* if the plaintiff is guilty of contributory negligence the effect of such contributory negligence is that the damages the plaintiff 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.
The third step will be for you to diminish the amount first ascertained by you, 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 plaintiff was contributorily negligent, you will apply the following principle of law commonly referred to as the law of comparative negligence.
In an action such as this, to recover damages for personal injuries, the fact that the plaintiff 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 plaintiff's contributory negligence upon the amount of his/her recovery, states two principles of law:
* The fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery, but
* if the plaintiff is guilty of contributory negligence the effect of such contributory negligence is that the damages the plaintiff 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 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% of X dollars to which the plaintiff wold 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:
Reed v. S.S. Yaka, 373 U.S. 410, 10 L.Ed.2d 448, 83 S.Ct. 1349 (1963); United N.Y. & N.J. Pilots Asso. v. Halecki, 358 U.S. 613, 3 L.Ed.2d 541, 79 S.Ct. 417 (1959); Romero v. International Terminal Operat. Co., 358 U.S. 354, 3 L.Ed.2d 368, 79 S.Ct. 468 (1959); Kermarec v. Compagnie Generale Transatlantique, 348 U.S. 625, 3 L.Ed.2d 550, 79 S.Ct. 406 (1959); Pope and Talbot, Inc. v. Hawn, 346 U.S. 406, 98 L.Ed. 143, 74 S.Ct. 202 (1953); Caldarola v. Eckert, 332 U.S. 155, 91 L.Ed. 1968, 67 S.Ct. 1569 (1947).
Notes:
Third party actions under the Longshoremen's and Harbor Workers' Compensation Act may be tried in state courts. See Title 33 U.S.C.A., Sec. 933; Paxos v. Jarka Corp. 314 Pa. 148, 171 A. 468 (Sup. Ct. 1934); Kermarec v. Compagnie Generale Transatlantique, 348 U.S. 625, 3 L.Ed.2d 550, 79 Sup Ct. 406 (1959).
Title 33 (Navigation and Navigable Waters) Chapt. 10, Sec. 901 et seq. of the U.S. Code, is the Longshoremen's and Harbor Workers' Compensation Act.
Compensation is payable irrespective of fault in respect to disability or death of an employee if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock).
The remedy under this Workers' Compensation Act is exclusive and in place of all other liability of such employer to his/her employee or legal representative.
In addition to the foregoing remedy, longshoremen and harbor workers may also have a third party action against the vessel or its owner grounded on negligence or unseaworthiness or both. Such an action may and generally is brought in a Federal District Court.
However, the action under either theory may also be brought in a state court of the state in whose territorial waters the injury occurred or where jurisdiction over the parties may be obtained.
In such cases the Federal Maritime Law prevails with the comparative negligence rule applying.
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Model Civil Jury Charges
Sunday, August 12, 2007
7.21 JONES ACT - COMPARATIVE NEGLIGENCE (pre-1985)
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 46 U.S.C.A., Sec. 688 commonly referred to as the Jones Act:
"Any seaman who shall suffer personal injury in the course of his/her employment may, at his/her election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply, and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which
the defendant employer resides or in which his/her principal office is located."
This statute extends to seamen the benefits of the Federal Employers Liability Act which as related to this case provides that the fact that the seaman 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 seaman.
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 he 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 percentages of such amount of damages which is attributable to plaintiff's contributory negligence.
The third step will be for you to diminish the amount first ascertained by you, 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 46 U.S.C.A., Sec. 688 commonly referred to as the Jones Act:
"Any seaman who shall suffer personal injury in the course of his/her employment may, at his/her election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which
the defendant employer resides or in which his/her principal office is located."
This statute extends to seamen the benefits of the Federal Employers Liability Act which as related to this case provides that the fact that the seaman 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 seaman.
This provision deals with the effect of the employees 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 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 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:
Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 98 L.Ed. 143, 74 S.Ct. 202 (1953); Nygren v. American Boat Cartage, Inc., 290 F.2d 547 (2d Cir. 1961); Duplanty v. Matson Navigation Company, 53 Wash. 243, 333 P.2d 1092 (Sup. Ct. 1959); Allan v. Oceanside Lumber Company, 214 Or. 27, 328 P.2d 327 (Sup. Ct. 1958); Wood Towing Corporation v. West, 181 Va. 151, 23 S.E.2d 789 (Ct. App. 1943); Boles v. Munson S.S. Lines, Inc., 256 N.Y.S. 709, 235 App. Div. 175 (1932).
Notes:
Causes of action under the Jones Act may be tried in state courts. See Title 46, U.S.C.A., Sec. 688; O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 87 L.Ed. 596 (1943); Romero v. International Term. Operat. Co., 358 U.S. 354, 3 L.Ed.2d 368, 79 S.Ct. 468 (1959).
"Any seaman who shall suffer personal injury in the course of his/her employment may, at his/her election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply, and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which
the defendant employer resides or in which his/her principal office is located."
This statute extends to seamen the benefits of the Federal Employers Liability Act which as related to this case provides that the fact that the seaman 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 seaman.
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 he 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 percentages of such amount of damages which is attributable to plaintiff's contributory negligence.
The third step will be for you to diminish the amount first ascertained by you, 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 46 U.S.C.A., Sec. 688 commonly referred to as the Jones Act:
"Any seaman who shall suffer personal injury in the course of his/her employment may, at his/her election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which
the defendant employer resides or in which his/her principal office is located."
This statute extends to seamen the benefits of the Federal Employers Liability Act which as related to this case provides that the fact that the seaman 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 seaman.
This provision deals with the effect of the employees 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 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 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:
Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 98 L.Ed. 143, 74 S.Ct. 202 (1953); Nygren v. American Boat Cartage, Inc., 290 F.2d 547 (2d Cir. 1961); Duplanty v. Matson Navigation Company, 53 Wash. 243, 333 P.2d 1092 (Sup. Ct. 1959); Allan v. Oceanside Lumber Company, 214 Or. 27, 328 P.2d 327 (Sup. Ct. 1958); Wood Towing Corporation v. West, 181 Va. 151, 23 S.E.2d 789 (Ct. App. 1943); Boles v. Munson S.S. Lines, Inc., 256 N.Y.S. 709, 235 App. Div. 175 (1932).
Notes:
Causes of action under the Jones Act may be tried in state courts. See Title 46, U.S.C.A., Sec. 688; O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 87 L.Ed. 596 (1943); Romero v. International Term. Operat. Co., 358 U.S. 354, 3 L.Ed.2d 368, 79 S.Ct. 468 (1959).
7.20 FEDERAL EMPLOYERS LIABILITY ACT - COMPARATIVE NEGLIGENCE (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.
The third step will be for you to diminish the amount first ascertained by you, 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).
Notes:
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 is an employee, or where such injuries have resulted in his/her 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."
The proviso in the foregoing refers to Title 45, Chapter 1, Sec. 1 et seq. (Safety Appliance Act) which required railroads to incorporate certain safety appliances and equipment on railroad engines and cars for the protection of employees and travelers.
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Model Civil Jury Charges
"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.
The third step will be for you to diminish the amount first ascertained by you, 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).
Notes:
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 is an employee, or where such injuries have resulted in his/her 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."
The proviso in the foregoing refers to Title 45, Chapter 1, Sec. 1 et seq. (Safety Appliance Act) which required railroads to incorporate certain safety appliances and equipment on railroad engines and cars for the protection of employees and travelers.
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Model Civil Jury Charges
7.16 NEGLIGENCE - WHERE A PARTY'S ACTS OR MISCONDUCT ARE WILLFUL, WANTON OR MALICIOUS OR IN RECKLESS DISREGARD OF ONE'S SAFETY OR ARE INTENTIONAL ACTS
In this case, (one party) alleges that the acts of misconduct of (other party) were willful, wanton or malicious (or intentional). If you find that the act (or failure to act) by that party was willful, wanton or malicious (or intentional) conduct and that her/his action (or inaction) substantially contributed to the harm, then you are to apportion the fault of all parties. In other words, you are to apportion the total responsibility to each party depending on the degree of fault you assess to each party; including the fault attributable to a willful, wanton or malicious tortfeasor or a tortfeasor who acts in reckless disregard of one's safety (or a tortfeasor who acts intentionally).
Note:
If the above is charged, jury should also be given definitions of willful, wanton and malicious or of intentional acts as well as proximate cause.
Note:
The law expressed in Draney v. Bachman, 138 N.J. Super. 503 (L.D. 1976) was found to have "eroded by subsequent developments in the law of comparative fault". See McCann v. Lester, 239 N.J. Super. 601 (App. Div. 1990) at page 609, holding that overall fault of all parties is to be measured (compared).
In Blazovic v. Andrich, 124 N.J. 90 (1990), McCann is cited with approval. Blazovic then holds that intentional acts are likewise to be compared.
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Model Civil Jury Charges
Note:
If the above is charged, jury should also be given definitions of willful, wanton and malicious or of intentional acts as well as proximate cause.
Note:
The law expressed in Draney v. Bachman, 138 N.J. Super. 503 (L.D. 1976) was found to have "eroded by subsequent developments in the law of comparative fault". See McCann v. Lester, 239 N.J. Super. 601 (App. Div. 1990) at page 609, holding that overall fault of all parties is to be measured (compared).
In Blazovic v. Andrich, 124 N.J. 90 (1990), McCann is cited with approval. Blazovic then holds that intentional acts are likewise to be compared.
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Model Civil Jury Charges
7.15 NEGLIGENCE - CARE REQUIRED OF PEDESTRIAN ON SIDEWALK
A. In General
A pedestrian using the sidewalk, must act with the same amount of care for her/his own protection as a reasonably careful person would have exercised under similar circumstances. In order to determine whether or not the pedestrian acted reasonably, you must decide whether a reasonable careful person would have discovered the danger which existed in this case and would have avoided it.
Cases:
The above rule applies when the defect is in the sidewalk itself. Milstrey v. Hackensack, 6 N.J. 400-414 (1951); Saco v. Hall, 1 N.J. 377 (1949); Kelly v. Limbeck, 86 N.J.L. 471 (Sup. Ct. 1914); Citro v. Stevens Institute of Technology, 55 N.J. Super. 295 (App. Div. 1959).
Note:
WHEN DEALING WITH STRUCTURES NOT NECESSARILY COMPONENTS OF SIDEWALKS, SUCH AS DRAINS, GRATES AND CELLAR DOORS, THE FOLLOWING SECTION (B) MAY BE FOUND TO APPLY WHERE PLAINTIFF HAS NO PRIOR KNOWLEDGE THEREOF.
B. Artificially Created Conditions For Private Use
A pedestrian using the sidewalk is required to exercise reasonable care for her/his own safety, however, a pedestrian is entitled to assume that there is no
dangerous impediment or pitfall on any part of the sidewalk. The law does not require that a pedestrian anticipate dangerous conditions, however, when or if a pedestrian is not negligent merely because she/he does not look for dangerous conditions, however, when or if a pedestrian sees or is aware of a dangerous condition, then she/he must exercise reasonable care to avoid that condition.
[SEE ALSO NOTE UNDER A. ABOVE.]
Cases:
Saco v. Hall, 1 N.J. 377 (1949); Krug v. Warner, 28 N.J. 174, 183 (1958); Taverna v. Hoboken, 43 N.J. Super. 160, 164 (App. Div. 1956).
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Model Civil Jury Charges
A pedestrian using the sidewalk, must act with the same amount of care for her/his own protection as a reasonably careful person would have exercised under similar circumstances. In order to determine whether or not the pedestrian acted reasonably, you must decide whether a reasonable careful person would have discovered the danger which existed in this case and would have avoided it.
Cases:
The above rule applies when the defect is in the sidewalk itself. Milstrey v. Hackensack, 6 N.J. 400-414 (1951); Saco v. Hall, 1 N.J. 377 (1949); Kelly v. Limbeck, 86 N.J.L. 471 (Sup. Ct. 1914); Citro v. Stevens Institute of Technology, 55 N.J. Super. 295 (App. Div. 1959).
Note:
WHEN DEALING WITH STRUCTURES NOT NECESSARILY COMPONENTS OF SIDEWALKS, SUCH AS DRAINS, GRATES AND CELLAR DOORS, THE FOLLOWING SECTION (B) MAY BE FOUND TO APPLY WHERE PLAINTIFF HAS NO PRIOR KNOWLEDGE THEREOF.
B. Artificially Created Conditions For Private Use
A pedestrian using the sidewalk is required to exercise reasonable care for her/his own safety, however, a pedestrian is entitled to assume that there is no
dangerous impediment or pitfall on any part of the sidewalk. The law does not require that a pedestrian anticipate dangerous conditions, however, when or if a pedestrian is not negligent merely because she/he does not look for dangerous conditions, however, when or if a pedestrian sees or is aware of a dangerous condition, then she/he must exercise reasonable care to avoid that condition.
[SEE ALSO NOTE UNDER A. ABOVE.]
Cases:
Saco v. Hall, 1 N.J. 377 (1949); Krug v. Warner, 28 N.J. 174, 183 (1958); Taverna v. Hoboken, 43 N.J. Super. 160, 164 (App. Div. 1956).
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Model Civil Jury Charges
7.14 NEGLIGENCE - EFFECT OF PHYSICAL IMPAIRMENT
A person acting with a physical impairment is required to act with the same degree of care as an ordinary careful person with a similar impairment or disability would have exercised under the same or similar circumstances.
Cases:
Berger v. Shapiro, 30 N.J. 89, 102 (1959); Butelli v. J.C.H. & R. El. Ry. Co., 59 N.J.L. 302, 306 (Sup. Ct. 1896); 2 Harper & James, The Law of Torts §16.7.
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Model Civil Jury Charges
Cases:
Berger v. Shapiro, 30 N.J. 89, 102 (1959); Butelli v. J.C.H. & R. El. Ry. Co., 59 N.J.L. 302, 306 (Sup. Ct. 1896); 2 Harper & James, The Law of Torts §16.7.
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Model Civil Jury Charges
7.13 NEGLIGENCE - INTOXICATION
A. In General
A person who voluntarily has become intoxicated is required to act with the same care as a person who is sober. So long as such a person who is voluntarily intoxicated acts with the same degree of care for her/his own safety which an ordinary careful and sober person would exercise under the same or similar circumstances, then the intoxicated person is not comparatively negligent. But if you find that, by reason of her/his own voluntary abuse of intoxicating liquor, the plaintiff exposed herself/himself to a dangerous situation and sustained bodily injuries which a sober person in the exercise of ordinary foresight and care would have avoided, then you find that the voluntary intoxicated person has acted negligently.
Note:
It has been held that negligence is not necessarily to be inferred from proof of intoxication and that a drunken person may be careful. Bageard v. Consolidated Traction Co., 64 N.J.L. 316 (E. & A. 1900).
Cases:
Petrone v. Margolis, 20 N.J. Super. 180, 188 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953).
B. Riding With Intoxicated Driver
A passenger in an automobile must act with appropriate care for her/his own safety as the demands of the situation reasonably require. To determine whether or not the plaintiff was negligent by voluntarily riding in a motor vehicle which was operated by an intoxicated person, you must decide whether an ordinary cautious and careful person, under the same or similar circumstances, would have risked riding with the driver. You must consider three factual issues:
1. Did the plaintiff voluntarily ride in an automobile operated by a person under the influence of intoxicating liquor/drugs after the plaintiff knew, or, in the exercise of reasonable care, should have known, of the driver's condition?
2. Would a reasonably cautious and careful person have avoided the risk of riding with such a driver under the same or similar circumstances?
3. Was the intoxication of the driver a substantial contributing cause of the incident and the resulting injuries?
If the answer to the three questions is yes, then the plaintiff was comparatively negligent. If you answer any of the three questions no, then the plaintiff was not comparatively negligent.
Cases:
Petrone v. Margolis, 20 N.J. Super. 180, 188 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953).
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Model Civil Jury Charges
A person who voluntarily has become intoxicated is required to act with the same care as a person who is sober. So long as such a person who is voluntarily intoxicated acts with the same degree of care for her/his own safety which an ordinary careful and sober person would exercise under the same or similar circumstances, then the intoxicated person is not comparatively negligent. But if you find that, by reason of her/his own voluntary abuse of intoxicating liquor, the plaintiff exposed herself/himself to a dangerous situation and sustained bodily injuries which a sober person in the exercise of ordinary foresight and care would have avoided, then you find that the voluntary intoxicated person has acted negligently.
Note:
It has been held that negligence is not necessarily to be inferred from proof of intoxication and that a drunken person may be careful. Bageard v. Consolidated Traction Co., 64 N.J.L. 316 (E. & A. 1900).
Cases:
Petrone v. Margolis, 20 N.J. Super. 180, 188 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953).
B. Riding With Intoxicated Driver
A passenger in an automobile must act with appropriate care for her/his own safety as the demands of the situation reasonably require. To determine whether or not the plaintiff was negligent by voluntarily riding in a motor vehicle which was operated by an intoxicated person, you must decide whether an ordinary cautious and careful person, under the same or similar circumstances, would have risked riding with the driver. You must consider three factual issues:
1. Did the plaintiff voluntarily ride in an automobile operated by a person under the influence of intoxicating liquor/drugs after the plaintiff knew, or, in the exercise of reasonable care, should have known, of the driver's condition?
2. Would a reasonably cautious and careful person have avoided the risk of riding with such a driver under the same or similar circumstances?
3. Was the intoxication of the driver a substantial contributing cause of the incident and the resulting injuries?
If the answer to the three questions is yes, then the plaintiff was comparatively negligent. If you answer any of the three questions no, then the plaintiff was not comparatively negligent.
Cases:
Petrone v. Margolis, 20 N.J. Super. 180, 188 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953).
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Model Civil Jury Charges
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