6.1 Preliminary Jury Instruction—For Federal Employers’ Liability Act (45 U.S.C. §§ 51 and 53)

            The plaintiff, [name of plaintiff], claims that while [he] [she] was employed by the defendant, [name of defendant], a railroad, [he] [she] suffered an injury caused by the negligence of the defendant.  The defendant denies the plaintiff’s claim.  To help you understand the evidence while it is being presented, I will now explain some of the legal terms you will hear during this trial. 

            Negligence is the failure to use reasonable care.  Reasonable care is the degree of care that a reasonably prudent person would use under like circumstances.  Someone can be negligent by doing something that a reasonably prudent person would not have done, or by failing to do something that a reasonably prudent person would have done. 

            It is not enough, however, that someone be negligent, because to be held responsible for an injury the person’s negligence must also have been a cause of the injury.  To be a cause of an injury, the negligence must have played some part, no matter how small, in bringing that injury about. 

            The plaintiff claims that the defendant should be required to pay damages because its negligence was a cause of an injury suffered by the plaintiff.  It is the plaintiff’s burden to prove that by a preponderance of the evidence.  The defendant, on the other hand, claims that the plaintiff was negligent and that the plaintiff’s own negligence was a cause of the claimed injury.  The defendant has the burden of proving that by a preponderance of the evidence. 

            Should you determine that negligence of both the plaintiff and the defendant were causes of an injury, then you will determine the percentage of fault attributable to the plaintiff. 

Comment 

            This preliminary instruction may be given at the beginning of trial.  The judge should be certain that the jury understands that after the jury calculates any percentage of fault attributable to the plaintiff, the court will deduct that percentage from any award of damages.  See Instruction 6.7 (Plaintiff’s Negligence—Reduction of Damages (45 U.S.C. § 53)). 

            The right to sue under FELA is limited to employees of a railroad common carrier engaged in interstate commerce.  Forrester v. Am. Dieselectric, Inc., 255 F.3d 1205, 1210 n.2 (9th Cir. 2001).  No claim for relief is available under FELA against individuals.  Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074, 1081 (9th Cir. 2003).