Free Proposed Jury Instructions - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00560-OES-BNB

GEORGE M. BULL, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.

PLAINTIFF'S AND DEFENDANT'S AGREED JURY INSTRUCTIONS (WITHOUT CITES)

Plaintiff and Defendant requests that the attached instructions, in addition to the general or standard instructions, be given to the jury.
BREMSETH LAW FIRM, P.C. By: s/Fredric A. Bremseth_________ Fredric A. Bremseth (#11149) Keith E. Ekstrom (#181808) 810 East Lake Street Wayzata, Minnesota 55391-1839 (952) 475-2800 And SPIES, POWERS & ROBINSON, P.C. JACK D. ROBINSON, #22037 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264 303-830-7090 UNION PACIFIC RAILROAD COMPANY By: s/Mark C. Hansen______________ Mark C. Hansen, #12306 1331 17th Street, Suite 406 Denver, CO 80202 303-964-4583

And

Donald C. Sinclair II Sinclair Kelly Jackson Reinhart & Hayden, LLC 501 Corporate Drive, Suite 200 Canonsburg, PA 15317 (724) 873-8660
Attorneys for Defendant

Attorneys for Plaintiff

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INSTRUCTION NO. ___ We are about to begin the trial of the case you heard about during the jury selection. Before the trial begins, I am going to give you instructions that will help you to understand what will be presented to you and how you should conduct yourself during the trial. During the trial you will hear me use a few terms that you may not have heard before. Let me briefly explain some of the most common to you. The party who sues is called the Plaintiff. In this action, the Plaintiff is George Bull. The party being sued is called the Defendant. In this action, the Defendant is Union Pacific Railroad Company. You will sometimes hear me refer to "counsel." "Counsel" is another way of saying "lawyer" or "attorney." I will sometimes refer to myself as the "Court." When I "sustain" an objection, I am excluding that evidence from this trial for a good reason. When you hear that I have "overruled" an objection, I am permitting that evidence to be admitted. When I say "admitted into evidence" or "received in to evidence," I mean that this particular statement or the particular exhibit may be considered by you in making the decisions you must make at the end of the case. By your verdict, you will decide disputed issues of fact. I will decide all questions of law that arise during the trial. Before you begin your deliberation at the close of the case, I will instruct you in more detail on the law that you must follow and apply. Because you will be asked to decide the facts of this case, you should give careful attention to the testimony and evidence presented. Keep in mind that I will instruct you at

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the end of the trial about determining the credibility or "believability" of the witnesses. During the trial you should keep an open mind and should not form or express any opinion about the case until you have heard all of the testimony and evidence, the lawyers' closing arguments, and my instructions to you on the law. While the trial is in progress, you must not discuss the case in any manner among yourselves or with anyone else. In addition, you should not permit anyone to discuss the case in your presence. You should avoid reading any news articles that might be

published about the case. You should also avoid watching or listening to any television or radio comments about the trial. From time-to-time during the trial, I may make rulings on objections or motions made by the lawyers. It is a lawyer's duty to object when the other side offers testimony or other evidence that the lawyer believes is not admissible. You should not be unfair or partial against a lawyer or the lawyer's client because the lawyer has made objections. If I sustain or uphold an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question. You should not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other. I do not favor one side or the other. The trial lawyers are not allowed to speak with you during this case. When you see them at a recess or pass them in the halls and they do not speak to you, they are not being rude or unfriendly; they are simply following the law. During the trial, it may be necessary for me to talk with the lawyers out of your hearing about questions of law or procedure. Sometimes, you may be excused from the

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courtroom during these discussions. I will try to limit these interruptions as much as possible, but you should remember the importance of the matter you are here to determine and should be patient even though the case may seem to go slowly.

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INSTRUCTION NO. ___

The case will proceed as follows: First, the lawyers for each side may make opening statements. What is said in the opening statements is not evidence, but is simply an outline to help you understand what each party expects the evidence to show. A party is not required to make an opening statement. After the opening statements, the Plaintiff will present evidence in support of Plaintiff's claims and the Defendant's lawyer may cross- examine the witnesses. At the conclusion of the Plaintiff's case, the Defendant will introduce evidence and the Plaintiff's lawyer may cross-examine the witnesses. evidence. After the evidence is presented, the parties' lawyers make closing arguments explaining what they believe the evidence has shown. arguments is not evidence. Finally, I will instruct you on the law that you are to apply in reaching your verdict. You will then decide the case. What is said in the closing The Plaintiff may then present rebuttal

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INSTRUCTION NO. ___ To insure fairness, you must obey the following rules: 1. Do not talk to each other about this case or about anyone involved with

this case until the end of the trial when you go to the jury room to decide on your verdict. 2. Do not talk with anyone else about this case or about anyone involved

with this case until the trial has ended and you have been discharged as jurors. "Anyone else" includes members of your family and your friends. You may tell people you are a juror, but do not tell them anything else about the case. 3. Outside the courtroom, do not let anyone tell you anything about the case,

or about anyone involved with it until the trial has ended. If someone should try to talk to you about the case during the trial, please report it to me immediately. 4. During the trial you should not talk with or speak to any of the parties,

lawyers or witnesses involved in this case--you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. 5. Do not read any news stories or articles about the case, or about anyone

involved with it, or listen to any radio or television reports about the case or about anyone involved with it. 6. Do not do any research, such as checking dictionaries, or make any

investigation about the case on your own.

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7.

Do not make up your mind during the trial about what the verdict should

be. Keep an open mind until after you have gone to the jury room to decide the case and you and the other jurors have discussed all the evidence. 8. If you need to tell me something, simply give a signed note to the bailiff or

clerk to give to me.

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INSTRUCTION NO. ___ During this trial, I will permit you to take notes. Of course, you are not obliged to take notes. If you do not take notes, you should not be influenced by the notes of another juror, but should rely upon your own recollection of the evidence. Because many courts do not permit note-taking by jurors, a word of caution is in order. You must not allow your note-taking to distract you from the proceedings. Frequently, there is a tendency to attach too much importance to what a person writes down. Some testimony that is considered unimportant at the time presented, and thus not written down, may take on greater importance later in the trial in light of all the evidence presented, the final arguments, and my instructions on the law. Accordingly, you are instructed that your notes are only a tool to aid your own individual memory and you should not compare your notes with other jurors in determining the content of any testimony or in evaluating the importance of any evidence. Your notes are not evidence, and are by no means a complete outline of the proceedings or a list of the highlights of the trial. Your memory should be your greatest asset when it comes time to deciding this case.

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INSTRUCTION NO. ___ Jurors normally do not ask a witness questions. However, I allow jurors to ask important questions during the trial under certain conditions. If you feel that the answer to your question would be helpful in understanding the issues in the case, please raise your hand after the lawyers have completed their examination but before I have excused the witness. You will then be given pen and paper with which to write your question for the witness. I will then talk privately with the lawyers and decide whether the question is proper under the law. If the question is proper, I will ask the witness the question. Some questions may be rewritten or rejected. implications if the question is not asked. Do not discuss your question with anyone, including the marshal or clerk. Remember, you are not to discuss the case with the other jurors until it is submitted for your decision. If you have difficulty hearing a witness or lawyer, please raise your hand immediately. Do not be concerned or draw any

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INSTRUCTION NO. ___ During the trial, I may sometimes ask a witness questions. Please do not assume that I have any opinion about the subject matter of my questions.

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INSTRUCTION NO. ___ You should consider and decide this case as a dispute between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. A corporation is entitled to the same fair trial as a private individual. All persons, including corporations, stand equal before the law, and are to be treated as equals.

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INSTRUCTION NO. ___ The evidence in the case will consist of the following: 1. 2. the exhibits. 3. All facts that may have been judicially noticed and that you must take as The sworn testimony of the witnesses, no matter who called a witness. All exhibits received in evidence, regardless of who may have produced

true for purposes of this case. Depositions may also be received in evidence. Depositions contain sworn

testimony, with the lawyers for each party being entitled to ask questions. In some cases, a deposition may be played for you on videotape. Deposition testimony may be accepted by you, subject to the same instructions that apply to witnesses testifying in open court. Statements and arguments of the lawyers are not evidence in the case, unless made as an admission or stipulation of fact. A "stipulation" is an agreement between both sides that certain facts are true. When the lawyers on both sides stipulate or agree to the existence of a fact, you must, unless otherwise instructed, accept the stipulation as evidence, and regard that fact as proved. I may take judicial notice of certain facts or events. When I declare that I will take judicial notice of some fact or event, you must accept that fact as true. If I sustain an objection to any evidence or if I order evidence stricken, that evidence must be entirely ignored.

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Some evidence is admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other purpose. You are to consider only the evidence in the case. But in your consideration of the evidence you are not limited to the statements of the witness. In other words, you are not limited solely to what you see and hear as the witnesses testified. You may draw from the facts that you find have been proved, such reasonable inferences or conclusions as you feel are justified in light of your experience. At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it is difficult and time consuming for the reporter to read back lengthy testimony. I urge you to pay close attention to the testimony as it is given.

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INSTRUCTION NO. ___ When a party has the burden to prove any matter by a preponderance of the evidence, it means that you must be persuaded by the testimony and exhibits that the matter sought to be proved is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it.

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INSTRUCTION NO. ___ In deciding the facts of this case, you are not to consider the following as evidence: statements and arguments of the lawyers, questions and objections of the lawyers, testimony that I instruct you to disregard, and anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.

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INSTRUCTION NO. ___ Testimony will now be presented through a deposition. A deposition contains the sworn, recorded answers to questions asked a witness in advance of the trial. A

witness' testimony may sometimes be presented in the form of a deposition if the witness is not present or if the testimony in court contradicts the witness' deposition testimony. Some time before this trial, attorneys representing the parties in this case questioned this witness under oath. A court reporter was present and recorded the testimony. The questions and answers will be read or shown to you today. You must give this deposition testimony the same consideration as if the witness had been present and had testified from the witness stand in court.

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INSTRUCTION NO. ___ Evidence will now be presented to you in the form of written answers of one of the parties to written interrogatories submitted by the other side. These answers were given in writing and under oath before this trial in response to written questions. You must give the answers the same consideration as if the answers were made from the witness stand.

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INSTRUCTION NO. ___ The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists for "expert witnesses." An expert

witness is a person who, by education and experience has become expert in some art, science, profession, or calling. Expert witnesses may state their opinions as to matters in which they profess to be expert, and may also state their reasons for their opinions. You should consider each expert opinion received in evidence in this case, and give it such weight as you think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you feel that it is outweighed by other evidence, you may disregard the opinion entirely.

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INSTRUCTION NO. ___ You are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the

witness, or by the manner in which the witness testifies, or by the character of the testimony given, or by evidence contrary to the testimony. You should carefully examine all the testimony given, the circumstances under which each witness has testified, and every matter in evidence tending to show whether a witness is worthy of belief. Consider each witness' intelligence, motive and state of mind, and demeanor or manner while testifying. Consider the witness' ability to observe the matters as to which the witness has testified, and whether the witness impresses you as having an accurate recollection of these matters. Also, consider any relation each witness may have with either side of the case, the manner in which each witness might be affected by the verdict, and the extent to which the testimony of each witness is either supported or contradicted by other evidence in the case Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses may or may not cause you to discredit such testimony. Two or more persons seeing an event may see or hear it differently. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.

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After making your own judgment, you will give the testimony of each witness such weight, if any, that you may think it deserves. In short, you may accept or reject the testimony of any witness, in whole or in part. In addition, the weight of the evidence is not necessarily determined by the number of witnesses testifying to the existence or nonexistence of any fact. You may find that the testimony of a small number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary.

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INSTRUCTION NO. ___ At the time and place in question, Defendant had a continuing duty as an employer to use ordinary care under the circumstances in furnishing Plaintiff with a reasonably safe place in which to work. It was also Defendant's continuing duty to use ordinary care under the circumstances to maintain and keep such place of work in a reasonably safe condition. This does not mean that Defendant is a guarantor or insurer of the safety of the place to work. The extent of Defendant's duty is to exercise ordinary care under the circumstances to see that the place in which the work is to be performed is reasonably safe under the circumstances shown by the evidence.

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INSTRUCTION NO. ___ "Ordinary care" is that care reasonably prudent persons exercise in the management of their own affairs in order to avoid injury to themselves or their property or the persons or property of others. Ordinary care is not an absolute term, but a relative one. In deciding whether ordinary care was exercised in a given case, the conduct in question must be viewed in the light of all the surrounding circumstances as shown by the evidence in the case.

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INSTRUCTION NO. ___

Because the amount of care exercised by a reasonably prudent person varies in proportion to the danger known to be involved in what is being done, it follows that the amount of caution required in the use of ordinary care will vary with the nature of what is being done, and all the surrounding circumstances shown by the evidence in the case. To put it another way, any increase in foreseeable danger requires increased care.

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INSTRUCTION NO. ___ Plaintiff will not be required to pay any federal or state income taxes on any amount that you award. When calculating lost earnings, if any, you should use after-tax earnings.

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INSTRUCTION NO. ___ Damages must be reasonable. If you should find that Plaintiff is entitled to a verdict, you may award Plaintiff only such damages as will reasonably compensate Plaintiff for such injury and damage as you find, from a preponderance of the evidence in the case, that Plaintiff has sustained as a result of the accident. You are not permitted to award speculative damages. So, you are not to include in any verdict compensation for any prospective loss that, although possible, is not reasonably certain to occur in the future.