6.2 FELA—Elements and Burden of Proof

            [On the plaintiff’s [specify type of claim] claim,] the plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 

1.         the defendant was negligent; and 

2.         the defendant’s negligence was a cause of an injury to the plaintiff. 

            If you find that the plaintiff has proved both of these elements, your verdict should be for the plaintiff.  If, on the other hand, the plaintiff has failed to prove either of these elements, your verdict should be for the defendant. 

            The defendant has the burden of proving both of the following elements by a preponderance of the evidence: 

1.         the plaintiff was negligent; and 

2.         the plaintiff’s negligence was a cause of the plaintiff’s own injury. 

            If you find that the defendant has proved both of these elements, you must reduce the percentage of fault attributable to the defendant. 

Comment 

            This instruction assumes the usual situation where the parties have stipulated that the defendant is a common carrier covered by the FELA and that the plaintiff was injured in the scope and course of employment with the defendant.  If these issues are in dispute, the instruction must be modified accordingly. 

            Use the second half of this instruction in conjunction with Instruction 6.7 (FELA—Plaintiff’s Negligence—Reduction of Damages).