IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

KARLA J. MOORE and ) ELBERT D. MOORE, )

) Plaintiffs, )

)vs. )

) AFFILIATED CARRIERS, INC. and ) CHRISTOPHER PFEIL, )

)Defendants. )

8:03CV320

JURY INSTRUCTIONS

Instruction No. 1

Members of the jury, the instructions I gave at the beginning of the trial and during

the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well

as those I give you now. You must not single out some instructions and ignore others,

because all are important. This is true even though some of those I gave you previously

are not repeated here.

The instructions I am about to give you are in writing and will be available to you

in the jury room. Again, all instructions, whenever given and whether in writing or not,

must

be followed.

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Instruction No. 2

Neither in these instructions nor in any ruling, action or remark that I have made

during the course of this trial have I intended to give any opinion or suggestion as to what

your verdict should be.

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Instruction No. 3

All of the parties to a lawsuit are entitled to the same fair and impartial consideration,

whether they are corporations or individuals.

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Instruction No. 4

In these instructions you are told that your verdict depends on whether you find

certain facts have been proved. The burden of proving a fact is upon the party whose claim

depends upon that fact. The party who has the burden of proving a fact must prove it by

the greater weight of the evidence. To prove something by the greater weight of the

evidence is to prove that it is more likely true than not true. It is determined by

considering all of the evidence and deciding which evidence is more believable. If, on

any issue in the case, the evidence is equally balanced, you cannot find that issue has been

proved.

The greater weight of the evidence is not necessarily determined by the greater

number of witnesses or exhibits a party has presented.

You may have heard of the term “proof beyond a reasonable doubt.” That is a

stricter standard which applies in criminal cases. It does not apply in civil cases such as

this. You

should, therefore, put it out of your minds.

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Instruction No. 5

The evidence from which you are to find the facts consists of the following:

1. The testimony of the witnesses;

2. Documents and other things received as exhibits; and

3. Any facts that have been stipulated–that is, formally agreed to by the parties.

The following things are not evidence:

1. Statements, arguments, and questions of the lawyers for the parties in this case;

2. Objections to questions;

3. Any testimony I told you to disregard; and

4. Anything you may have seen or heard about this case outside the courtroom.

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Instruction No. 6

You are the sole judges of the credibility of the witnesses and the weight to be given to

their testimony. You may believe all of what a witness said, or only part of it, or none of it.

In determining this, you may consider the following:

1. The conduct and demeanor of the witness while testifying;

2. The sources of information, including the opportunity for seeing or knowing the things about which the witness testified;

3. The ability of the witness to remember and to communicate accurately;

4. The reasonableness or unreasonableness of the testimony of the witness;

5. The self-interest or lack of self-interest of the witness in the result of this case;

6. The apparent fairness or bias of the witness, or the witness's relationship to the parties;

7. Any previous statement or conduct of the witness that is consistent or inconsistent with testimony of the witness at this trial; and

8. Any other evidence that affects the credibility of the witness or that tends to support or contradict the testimony of the witness.

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Instruction No. 7

A witness who has special knowledge, skill, experience, training, or education in a

particular area may testify as an expert in that area. You determine what weight, if any, to

give to an expert’s testimony just as you do with the testimony of any other witness. You

should consider the expert’s credibility as a witness, the expert’s qualifications as an

expert, the sources of the expert’s information, and the reasons given for any opinions

expressed by

the expert.

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Instruction No. 8

There is evidence before you from life expectancy tables. This evidence may assist

you in determining probable life expectancy. This is only an estimate based on average

experience. It is not conclusive. You should consider it along with any other evidence

bearing on probable life expectancy, such as evidence of health, occupation, habits, and

the

like.

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Instruction No. 9

During the trial, testimony was presented to you by written deposition, by video

deposition, and by interrogatories. Such testimony is under oath and is entitled to the same

fair and impartial consideration you give other testimony.

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Instruction No. 10

A person may assume that every other person will use reasonable care and will obey

the law until the contrary reasonably appears.

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Instruction No. 11

Negligence is doing something that a reasonably careful person would not do under

similar circumstances, or failing to do something that a reasonably careful person would do

under similar circumstances.

Drivers are negligent if they do something a reasonably careful driver in the

same situation would not have done, or fail to do something a reasonably careful driver in

the same situation would have done.

For example, drivers are negligent if they fail to see or hear those things that would

have been seen or heard by a reasonably careful driver in the same situation. They are

also negligent if they fail to keep their vehicles under such control as a reasonably careful

driver would have, in the same situation.

Reasonably careful drivers take into consideration such facts as their own speed, the

condition of their vehicle, the condition of the road, the presence of snow, ice and frost,

the presence of other vehicles, pedestrians, or objects, and any other factors that affect

driving conditions.

Drivers must use reasonable care even when they have the right-of-way.

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Instruction No. 12

A proximate cause is a cause that produces a result in a natural and continuous

sequence, and without which the result would not have occurred.

Where the independent negligent acts of more than one person combine to

proximately cause the same injury and damage, each such act is a proximate cause, and

each such person may be held responsible for the entire injury and damage. This is true

though some may have been more negligent than others. It is no defense that all those

who might

have been held responsible are not parties to this case.

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Instruction No. 13

NJI Civ.2d 3.44

The defendants claim that the State of Nebraska’s snowplow driver’s conduct was

the only proximate cause of the accident. By doing so, the defendants are simply denying

that their conduct was a proximate cause of the accident. Remember, the plaintiffs must

prove

that the defendants’ negligence was a proximate cause of the accident.

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Instruction No. 14

The law forbids you to return a verdict determined by chance. You may not, for

instance, agree in advance that each juror will state an amount to be awarded in damages,

that all of those amounts will be added together, that the total will be divided by the

number of jurors, and that the result will be returned as the jury’s verdict. A verdict

determined by

chance is invalid.

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Instruction No. 15

STATEMENT OF THE CASE–NEGLIGENCE

I. PLAINTIFFS’ CLAIMS

A. Issues

This case involves a collision between a tractor-trailer owned by Affiliated Carriers

and operated by the defendant Christopher Pfeil, a State of Nebraska snowplow and a 1996

Chrysler Sebring sedan which occurred in Cedar County Nebraska on December 16, 2000.

The plaintiffs, Karla J. Moore and Elbert D. Moore, claim that the collision between

the tractor-trailer and the Chrysler was proximately caused by the negligence of

Christopher Pfeil in one or more of the following ways:

1. He failed to keep a proper lookout;

2. He failed to have the tractor-trailer under reasonable control;

3. He operated his vehicle at a high and unsafe rate of speed for the conditions of the weather, roadway and traffic.

Plaintiff Karla Moore claims that she was injured as a result of that negligence and

seeks a judgment against the defendants for her damages. Plaintiff Elbert Moore claims

that due to the injuries to Karla Moore, he has suffered damages to his marital relationship

and seeks a judgment against the defendants for his damages.

The defendants and plaintiffs agree that on December 16, 2000 plaintiffs Karla and

Elbert Moore were traveling east on Highways 15 and 57 toward Laurel in Cedar County,

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Nebraska. The parties agree that Elbert Moore was operating a 1996 Chrysler Sebring two-

door sedan which was owned by the Moores’ son, Jeremiah Moore. The parties agree that

at a point approximately one and one-half miles west of the junction of Highways 15 and

57 with U.S. Highway 20, Elbert Moore encountered a car stalled in the eastbound lane of

the highway which blocked the eastbound lane. The parties agree that Mr. Moore stopped

the Chrysler and in the process of stopping, the Chrysler’s serpentine belt was thrown and

the Chrysler was disabled.

The plaintiffs and defendants further agree that at or about the time the Chrysler

became disabled, a State of Nebraska snowplow operated by Clayton Hartman came upon

the scene from the east. The parties agree that Elbert Moore joined Mr. Hartman in the cab

of the snowplow and Mr. Hartman radioed Hansen Repair in Laurel for a tow truck. The

plaintiffs and defendants agree that Karla Moore remained in the passenger seat of the

Chrysler with her seat belt fastened. The parties also agree that Dan Hansen brought a tow

truck to the scene about 20 minutes later.

The parties also agree that shortly after the tow truck arrived, a 1992 Freightliner

truck tractor and semi-trailer operated by defendant Christopher Pfeil approached the

scene from the west going east toward Laurel. The parties agree that the tractor-trailer and

semi-trailer were owned by the defendant Affiliated Carriers and that defendant Pfeil was

acting within

the course and scope of his employment by Affiliated Carriers at the time.

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The parties further agree that the Affiliated Carriers’ tractor-trailer struck and

collided with the State of Nebraska’s snowplow and then jack knifed and slid across the

highway where the tractor-trailer struck and collided with the Chrysler injuring Karla

Moore. Plaintiffs and defendants agree that Karla Moore underwent neck surgery for

treatment of her injuries.

Defendants deny that Christopher Pfeil was negligent and further deny the extent of

Karla Moore’s injury and damages which plaintiffs claim to have suffered as result of the

collision December 16, 2000.

B. Burden of Proof–Karla Moore

Before Karla Moore can recover against the defendants, she must prove by the

greater weight of the evidence each and all of the following:

1. That the defendant Christopher Pfeil was negligent in one or more of the ways claimed by plaintiffs;

2. That this negligence was a proximate cause of the collision between theFreightliner truck tractor and the Chrysler;

3. That the collision was the proximate cause of some damages to Karla Moore; and

4. The nature and extent of that damage.

C. Effect of Finding–Karla Moore

If Karla Moore has n o t met her burden of proof, then your verdict must be for the

defendants and against Karla Moore.

On the other hand, if Karla Moore has met her burden of proof, then you must

consider the defendants’ defenses.

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II. Defendants’ Defenses as to Karla Moore

A. Issues

In defense of Karla Moore’s claims, the defendants claim that Karla Moore was

negligent in the following way:

1. She remained in the Chrysler when she knew or should have known it was a potentially dangerous place.

Karla Moore denies that she was negligent.

B. Burden of Proof

In connection with their claim that Karla Moore was negligent, the burden is upon

the defendants to prove by the greater weight of the evidence both of the following:

1. That Karla More was negligent in the way claimed by the defendants; and

2. That this negligence was a proximate cause of her damages.

C. Effect of Findings

If Karla Moore h a s met her burden of proof and the defendants have not met their

burden of proof, then your verdict must be for Karla Moore and you must determine

the whole amount of damages suffered by Karla Moore.

If Karla Moore h a s met her burden of proof and the defendants have met their

burden of proof, then you must compare their negligence and you must do so as follows:

If you find that Karla Moore was damaged and that her damages were proximately caused

by the negligence of the defendants and the negligence of Karla Moore, then you must

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determine to what extent the negligent conduct of each contributed to the damages of Karla

Moore expressed as a percentage of 100%.

If you find that both Karla Moore and defendants were negligent and the

negligence of Karla Moore was equal to or greater than the negligence of the defendants,

then Karla Moore may not recover damages.

If you find that Karla Moore may recover damages you must first determine the

total amount of her damages without regard to her percentage or degree of negligence. You

must then reduce the total amount of her damages by the percentage you find that she was

negligent.

III. Claim of Elbert Moore

A. Burden of Proof–Elbert Moore

Before Elbert Moore can recover against the defendants, he must prove by the

greater weight of the evidence, each and all of the following:

1. That the collision was a proximate cause of some damages to Elbert Moore; and

2. The nature and extent of that damage.

B. Effects of Findings

Elbert Moore’s claim is what is known in law as a derivative claim. That means it is

derived from Karla Moore’s claim. If you find that Karla Moore has not met her burden of

proof then your verdict must be for the defendants and against Elbert Moore.

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On the other hand, if you find that Karla Moore h a s met her burden of proof then

you must consider whether Elbert Moore has met his burden of proof.

If Elbert Moore has no t met his burden of proof, then your verdict must be for

the defendants.

On the other hand, if Elbert Moore has met his burden of proof, then you must

consider the defendants’ defenses.

IV. Defendants’ Defenses–Elbert Moore

A. Issues

In defense of Elbert Moore’s claims, the defendants claim that Elbert Moore was

negligent in one or more of the following ways:

1. He stopped the Chrysler on the traveled portion of the roadway when it was practicable to stop such vehicle off the traveled portion of the roadway.

2. He failed to sufficiently warn approaching vehicles of the location of the

Chrysler. Elbert Moore denies he was negligent.

B. Burden of Proof

In connection with their claim that Elbert Moore was negligent, the burden is on the

defendants to prove by the greater weight of the evidence both the following:

1. That Elbert Moore was negligent in one or more of the ways claimed by the defendants; and

2. That this negligence was a proximate cause of his own damages.

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If both Elbert Moore and the defendants have met their burden of proof, then you

must consider Elbert Moore’s defense to defendants’ claim that he was negligent.

V. Elbert Moore’s Defense

A. Issues

In defense of defendants’ claim that he was negligent, Elbert Moore claims that he

pulled the Chrysler to the side of the road, that the Chrysler’s sinuous belt was thrown and

the Chrysler became disabled in such a manner and to such extent that it was impossible to

avoid stopping and leaving the vehicle in the position it was when it was struck by the

defendant Affiliated’s Freightliner tractor-trailer.

B. Burden of Proof

In connection with his claim that the Chrysler was disabled, the burden is upon Elbert

Moore to prove by the greater weight of the evidence both of the following:

1. The Chrysler became disabled, and

2. In its disabled condition it was impossible for Elbert Moore to avoid stopping and leaving the vehicle in the position that it was in when it was struck by the defendant Affiliated’s Freightliner tractor-trailer.

C. Effect of Findings on Elbert Moore's Defense

If you find that Elbert Moore has met his burden of proof then you will disregard

defendants claim that Elbert Moore was negligent by stopping the Chrysler on the traveled

portion of the highway.

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D. Effect of the Findings–Elbert Moore

If Elbert Moore h a s met his burden of proof and the defendants have not met their

burden of proof, then your verdict must be for Elbert Moore and you must determine the

whole amount of damages suffered by Elbert Moore.

If both Elbert Moore and the defendants have met their burdens of proof, then you

must compare their negligence and you must do so as follows:

If you find that Elbert Moore was damaged and that his damages were proximately

caused by both the negligence of the defendants and the negligence of Elbert Moore, then

you must determine to what extent the negligent conduct of each contributed to the

damages of Elbert Moore expressed as a percentage of 100%.

If you find that both Elbert Moore and defendants were negligent and the combined

negligence of Elbert Moore and Karla Moore was equal to or greater than the negligence

of the defendants, then Elbert Moore may not recover damages.

If you find that Elbert Moore may recover damages you must first determine the

total amount of his damages without regard to his percentage or degree of negligence. You

must then reduce the total amount of his damages by the percentage of the combined

negligence

of Elbert Moore and Karla Moore.

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Instruction No. 16A

If you return a verdict for the plaintiff, Karla J. Moore, then you must decide how

much money will fairly compensate the plaintiff for her injury.

I am about to give you a list of the things you may consider in making this decision.

From this list, you must only consider those things you decide were proximately caused by

defendants’ negligence:

1. The nature and extent of the injury, including whether the injury is temporary or permanent and whether any resulting disability is partial;

2. The reasonable value of the medical care and supplies reasonably needed by and actually provided to Karla J. Moore and reasonably certain to be needed and provided in the future;

3. The reasonable value of the earning capacity Karla J. Moore is reasonably certain to lose in the future;

4. The physical pain and mental suffering Karla J. Moore has experienced and is reasonably certain to experience in the future.

Remember, throughout your deliberations you must not engage in any speculation, guess,

or conjecture and you must not award any damages by way of punishment or through

sympathy.

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Instruction No. 16B

If you return a verdict for the plaintiff, Elbert D. Moore, then you must decide how

much money will fairly compensate the plaintiff for his loss of consortium. Consortium

means those things to which a person is entitled by reason of the marriage relationship. It

includes affection, love, companionship, comfort, assistance, services, moral support,

and the enjoyment of sexual and conjugal relations.

Remember, throughout your deliberations you must not engage in any speculation,

guess, or conjecture and you must not award any damages by way of punishment or

through

sympathy.

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Instruction No. 17

There is evidence that Karla Moore had an injury to her neck prior to December 16,

2000. The defendants are liable only for any damages that you find to be proximately

caused by the injuries from the collision December 16, 2000. However, the burden is

on the defendants to prove by the greater weight of the evidence what portion of Karla

Moore’s damages occurred in the collision on December 16, 2000 and what portion

preexisted that collision. If you cannot separate the damages caused by the preexisting

injury from those caused by the collision on December 16, 2000, then the defendants are

liable for all of those

damages.

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Instruction No. 18

If you find from the greater weight of the evidence that Elbert Moore was negligent

in any of the ways claimed by the defendants you are instructed that the negligence of

Elbert Moore is not the negligence of Karla Moore and you must consider Karla Moore’s

claim

without considering any negligence of Elbert Moore.

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Instruction No. 19

The statutes of the State of Nebraska in full force and effect at the time of the

collision provided as follows:

Sec. 60-624:

Highway shall mean the entire width between the boundary limits of any road which is publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.

Sec. 60-656:

Roadway shall mean that portion of a highway improved, designed, or ordinarily used for vehicular travel exclusive of the shoulder.

Sec. 60-6,112:

Unless specifically made applicable, the Nebraska Rules of the Road, except those provisions relating to careless driving, reckless driving, and driving while under the influence of alcoholic liquor or drugs, shall not apply to:

(1) Persons, teams of draft animals, motor vehicles, and other equipment while actually engaged in work upon the surface of a highway, but the rules shall apply to such persons and vehicles when traveling to or from such work; or

(2) Government employees and public utility employees to the extent that there would be a conflict between the rules and the performance of their official duties.

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Instruction No. 20

If you decide that the plaintiffs are entitled to recover damages for any future

losses, then you must reduce those damages to their present cash value. You must decide

how much

money must be given to the plaintiffs today to compensate them fairly for their future losses.

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Instruction No. 21

In conducting your deliberations and returning your verdict, there are certain rules

you must follow.

F irs t , when you go to the jury room, you must select one of your members as your

foreperson. That person will preside over your discussions and speak for you here in

court.

S e c o nd , it is your duty, as jurors, to discuss this case with one another in the jury

room. You should try to reach agreement if you can do so without violence to individual

judgment, because a verdict must be unanimous.

Each of you must make your own conscientious decision, but only after you

have considered all the evidence, discussed it fully with your fellow jurors, and listened

to the views of your fellow jurors.

Do not be afraid to change your opinions if the discussion persuades you that you

should. But do not come to a decision simply because other jurors think it is right, or

simply to reach a verdict. Remember at all times that you are not partisans. You are judges

- judges of the facts. Your sole interest is to seek the truth from the evidence in the case.

T h i r d , if you need to communicate with me during your deliberations, you may

send a note to me through the courtroom deputy, signed by one or more jurors. I will

respond as soon as possible either in writing or orally in open court. Remember that you

should not tell

anyone–including me–how your votes stand numerically.

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Fourth, your verdict must be based solely on the evidence and on the law which I

have given to you in my instructions. The verdict must be unanimous. Nothing I have

said or done is intended to suggest what your verdict should be–that is entirely for you to

decide.

Finally, the verdict form is simply the written notice of the decision that you reach in

this case. The forms read:

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VERDICT FORM NO. 1

We, the Jury, find that the plaintiff, Karla J. Moore, has not met her burden of proof

and we find in favor of the defendants, Christopher Pfeil and Affiliated Carriers, Inc.

DATED: _.

Presiding Juror

VERDICT FORM NO. 2

We, the Jury, find that the plaintiff, Elbert D. Moore, has not met his burden of

proof and we find in favor of the defendants, Christopher Pfeil and Affiliated Carriers, Inc.

DATED: _.

Presiding Juror

VERDICT FORM NO. 3

We, the Jury, find that plaintiff Karla Moore has met her burden of proof and the

defendants have not met their burden of proof, and our verdict is for plaintiff Karla Moore.

Karla Moore’s total damages, figured pursuant to Instruction No. 16A, are $_ _.

DATED: _.

Presiding Juror

VERDICT FORM NO. 4

We, the Jury, find that plaintiff Elbert Moore has met his burden of proof and the

defendants have not met their burden of proof, and our verdict is for plaintiff Elbert Moore.

Elbert Moore’s total damages, figured pursuant to Instruction No. 16B, are $_ .

DATED: _.

Presiding Juror

Page 1 of 2

VERDICT FORM NO. 5

We the jury find that both plaintiff Karla Moore a n d the defendants have met their

burdens of proof. We answer the questions on this Verdict Form as follows:

LIST OF PERCENTAGES:

What percent of the negligence was Karla J. Moore’s? _ %

What percent of the negligence was Christopher Pfeil’s and Affiliated Carriers’? _ %

The total negligence must add up to 100%. TOTAL = 1 00 %

A. If the negligence of Karla Moore equals 50% or more, then you must return a

verdict for the defendants: STOP, date and sign this form, and return it to the court.

B. If the negligence of Karla Moore is less than 50%, then you must return a verdict for

Karla Moore and, using Instruction No. 16A, you must determine the total amount

of damage suffered by Karla Moore and enter that figure here:

Karla Moore’s total damages, figured pursuant to Instruction No. 16A,

are $_ _.

Page 2 of 2

DECISIONS REGARDING DAMAGES

The amount of money that will actually be awarded to plaintiff Karla Moore is not

the total amount of damage you have listed above. The amount of money the plaintiff

will

receive will be figured as follows:

a. Decide Karla Moore’s damages, if any. $_ ___

b. Decide the percent of negligence attributable to defendants, Christopher Pfeil and Affiliated Carriers. _ %

c. Multiply the dollar figure in paragraph a. bythe percentage determined in paragraph b. TOTAL $_ ___

DATED: _.

Presiding Juror

Page 1 of 2

VERDICT FORM NO. 6

We the jury find that both plaintiff Elbert D. Moore a n d the defendants have met

their burdens of proof. We answer the questions on this Verdict Form as follows:

LIST OF PERCENTAGES:

What percent of the negligence was Elbert D. Moore’s? _ %

What percent of the negligence was Karla J. Moore’s? _ %

What percent of the negligence was Christopher Pfeil’s and Affiliated Carriers’? _ %

The total negligence must add up to 100%. TOTAL = 1 00 %

A. If the negligence of Karla Moore and Elbert Moore equals 50% or more, then you

must return a verdict for the defendants: STOP, date and sign this form, and return

it to the court.

B. If the combined negligence of Karla Moore and Elbert Moore is less than 50%, then

you must return a verdict for Elbert Moore and, using Instruction No. 16B, you must

determine the total amount of damage suffered by Elbert Moore and enter that

figure here:

Elbert Moore’s total damages, figured pursuant to Instruction No. 16B,

are $_ _.

Page 2 of 2

DECISIONS REGARDING DAMAGES

The amount of money that will actually be awarded to plaintiff Elbert Moore is not

the total amount of damage you have listed above. The amount of money the plaintiff

will

receive will be figured as follows:

a. Decide Elbert Moore’s damages, if any. $_ ___

b. Decide the percent of negligence attributable to defendants, Christopher Pfeil and Affiliated Carriers. _ %

c. Multiply the dollar figure in paragraph a. bythe percentage determined in paragraph b. TOTAL $_ ___

DATED: _.

Presiding Juror

You will take these forms to the jury room, and when each of you has agreed on the

verdict, your foreperson will fill in the appropriate forms, sign and date them, and advise

the courtroom deputy that you are ready to return to the courtroom.

If you do not agree on a verdict by 5:00 o’clock p.m., you may separate and return

for deliberation at 9:00 o’clock a.m. on the next business day. You may deliberate after

5:00 o’clock p.m., but if so, please advise the courtroom deputy of your intention to do so.

You may also separate for meals during the course of your deliberations, but if you do

separate for meals please contact the courtroom deputy to advise her of your intention to

separate and when you expect to return to the jury room to reconvene your deliberations. If

you do separate, then during that time, you are not allowed to discuss this case with

anyone, even another juror.

SUBMITTED at 4:11 p.m.

DATED _____________.

BY THE COURT:

United States Magistrate Judge

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