Davis v. Old Dominion Freight Line et al
Filing
115
ORDER: The Court appreciates the parties' suggestions about jury instructions. The Court is attaching its current working drafts of (1) the preliminary instructions and (2) the final instructions, including the embedded verdict form. Please file any objections to the preliminary instructions by the close of business on January 7. If any summaries are admitted, the Court will add a final instruction and the Court will instruct about depositions when it comes up during trial. The disputed part of AMI 901(B) is in the working draft; the proof will determine whether it stays. Signed by Judge D. P. Marshall Jr. on 1/4/2016. (Attachments: # 1 Document Preliminary Instructions, # 2 Document Final Jury Instructions)(jak)
INSTRUCTION NO. 1
Members of the Jury, the instructions I gave you at the
beginning of the trial and during the trial remain in effect. I now
give you some additional instructions on the law that applies to this
case. You must, of course, continue to follow all the instructions I
gave you earlier, as well those I give you now.
The instructions I am about to give you now are in writing and
will be available to you in writing in the jury room. I emphasize,
however, that this does not mean they are more important than my
earlier instructions. Again, all my instructions, whether given in
writing or spoken from this bench, must be followed.
It is your duty as jurors to follow the law as stated in the
instructions, and to apply the given rules of law to the facts as you
find them to be from the evidence in this case.
You are not to single out one instruction alone as stating the
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law, but must consider the instructions as a whole.
Neither are you to be concerned with the wisdom of any rule
of law as stated by the Court. Regardless of any opinion you may
have as to what the law ought to be, it would be a violation of your
sworn duty to base a verdict upon any other view of the law other
than that given in the instructions of the Court; just as it would be a
violation of your sworn duty, as judges of the facts, to base a verdict
upon anything but the evidence in the case.
Nothing I say in the instructions is to be taken as an indication
that I have any opinion about the facts of the case, or what that
opinion is. It is not my function to determine the facts. You will
determine the facts. During this trial I have occasionally asked
questions of witnesses. Do not assume that because I asked
questions I hold any opinion on the matters to which my questions
related.
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Justice through trial by jury must always depend on the
willingness of each individual juror to seek the truth about the facts
from the same evidence presented to all the jurors; and to arrive at
a verdict by applying the same rules of law as given in the Court’s
instructions.
Statements and arguments of counsel are not evidence in the
case. When the lawyers on both sides stipulate or agree on the
existence of a fact, however, the Jury must accept the stipulation and
regard that fact as proved. The evidence in the case always consists
of the sworn testimony of the witnesses, regardless of who may have
called them and any documents, photographs, or other items that
are received by the Court, and all facts that may have been admitted
or stipulated. Any evidence on which an objection was sustained by
the Court—and any witness statement or tangible item that was
stricken by the Court—must be entirely disregarded.
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Anything you may have seen or heard outside this courtroom
is not evidence, and it must be entirely disregarded.
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INSTRUCTION NO. 2
In conducting your deliberations and returning your verdict,
there are certain rules you must follow.
First, 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 all here in court.
Second, 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
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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.
Third, if you need to communicate with me during your
deliberations, you may send a note to me, through the court security
officer, that is 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 never tell anyone —including me—how your votes
stand numerically.
Fourth, your verdict must be based solely on the evidence and
on the law that I have given to you in my instructions. The verdict
must be unanimous. Again, nothing I have said or done is intended
to suggest what your verdict should be—that is entirely for you to
decide.
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INSTRUCTION NO. 3
This case should be considered and decided by you as a
dispute between persons of equal worth. All persons, including
corporations, stand equal before the law and are to be treated as
equals.
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INSTRUCTION NO. 4
You are the sole judges of the credibility of the witnesses and
the weight and value to be given to their testimony. In deciding
what the facts are, you will have to decide what testimony you
believe and what testimony you do not believe. You may believe all
of what a witness said, or only part of it, or none of it.
In deciding what testimony to believe, you should consider
several things: the witness’s intelligence; the opportunity the witness
had to see or hear the things about which he or she testified; the
witness’s memory; any motives a witness may have for testifying a
certain way; the manner and demeanor of the witness while
testifying; whether the witness said something different at an earlier
time; the general reasonableness or unreasonableness of the
testimony; and the extent to which the testimony is consistent with
any other evidence that you believe.
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In deciding whether or not to believe a witness, keep in mind
that people sometimes hear or see things differently and sometimes
forget things. You need to consider therefore whether a
contradiction is an innocent misrecollection, a lapse of memory, or
a lie—and that may depend on whether it has to do with an
important fact or only a small detail.
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INSTRUCTION NO. 5
An expert witness is a person who has special knowledge, skill,
experience, training, or education on a subject to which his or her
testimony relates.
An expert witness may give an opinion on questions in
controversy. You may consider the expert’ opinion in the light of his
or her qualifications and credibility, the reasons given for the
opinion, and the facts and other matters upon which the opinion is
based.
You are not bound to accept an expert opinion as conclusive,
but should give it whatever weight you think it should have. You
may disregard any opinion testimony if you find it to be
unreasonable.
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INSTRUCTION NO. 6
A witness may be discredited or impeached by contradictory
evidence or by evidence that at some other time the witness has said
or done something, or has failed to say or do something, that is
inconsistent with the witness’s present testimony.
If you believe any witness has been impeached and thus
discredited, you may give the testimony of that witness whatever
credibility, if any, you think it deserves.
If a witness is shown knowingly to have testified falsely about
any material matter, you have a right to distrust that witness’s other
testimony and you may reject all the testimony of that witness or
give it whatever credibility you think it deserves.
An act or omission is “knowingly” done, if the act is done
voluntarily or intentionally, and not because of mistake or accident
or other innocent reason.
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INSTRUCTION NO. 7
In considering the evidence in this case you are not required to
set aside your common sense or common knowledge. You have the
right to consider all the evidence in light of your own observations
and experiences in the affairs of life.
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INSTRUCTION NO. 8
In these instructions you are told that one or the other party has
the burden to prove certain facts. The burden of proving a fact is
placed upon the party whose claim or defense depends upon that
fact. The party who has the burden of proving a fact must prove it
by a preponderance of the evidence. To prove something by the
“preponderance 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 of fact in the case, the evidence is equally
balanced, you cannot find that fact has been proved. The
preponderance of the evidence is not necessarily established by the
greater number of witnesses or exhibits a party has presented.
You may have heard of the term “proof beyond a reasonable
doubt.” This is a stricter standard, which applies in criminal cases.
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It does not apply in civil cases like this one. You should, therefore,
put it out of your minds.
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INSTRUCTION NO. 9
A fact in dispute may be proved by circumstantial evidence, by
direct evidence, or by both. A fact is established by direct evidence
when, for example, it is proved by witnesses who testify to what
they saw, heard, or experienced. A fact is established by
circumstantial evidence when its existence can reasonably be
inferred from other facts proved in the case.
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INSTRUCTION NO. 10
Carla Lewis claims damages from Old Dominion Freight Line,
Inc. and Melvin “Keith” Howze and has the burden of proving each
of three essential propositions:
First, that Ms. Lewis has sustained damages;
Second, that Mr. Howze was negligent;
And third, that Mr. Howze’s negligence was a proximate cause
of Ms. Lewis’s damages.
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INSTRUCTION NO. 11
Old Dominion and Mr. Howze contend that there was
negligence on the part of Ms. Lewis, which was a proximate cause
of her injuries. Old Dominion and Mr. Howze have the burden of
proving this contention.
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INSTRUCTION NO. 12
At the time of the wreck, Old Dominion employed Mr. Howze.
Therefore, Old Dominion is legally responsible for any negligence
on Mr. Howze’s part.
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INSTRUCTION NO. 13
When I use the word “negligence” in these instructions I mean
the failure to do something which a reasonably careful person
would do, or the doing of something which a reasonably careful
person would not do, under circumstances similar to those shown
by the evidence in this case. To constitute negligence, an act must be
one from which a reasonably careful person would foresee such an
appreciable risk of harm to others as to cause him or her not to do
the act, or to do it in a more careful manner.
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INSTRUCTION NO. 14
A failure to exercise ordinary care is negligence. When I use the
words “ordinary care,” I mean the care a reasonably careful person
would use under circumstances similar to those shown by the
evidence in this case. It is for you to decide how a reasonably careful
person would act under those circumstances.
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INSTRUCTION NO. 15
It was the duty of all persons involved in the wreck to use
ordinary care for their own safety and the safety of others.
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INSTRUCTION NO. 16
The law frequently uses the expression “proximate cause,”
with which you may not be familiar. When I use the expression
“proximate cause” in these instructions, I mean a cause which, in a
natural and continuous sequence, produces damage and without
which the damage would not have occurred.
This does not mean that the law recognizes only one proximate
cause of damage. To the contrary, if two or more causes work
together to produce damage, then you may find that each of them
was a proximate cause.
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INSTRUCTION NO. 17
Every person using ordinary care has a right to assume, until
the contrary is or reasonably should be apparent, that every other
person will use ordinary care and obey the law. To act on that
assumption is not negligence.
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INSTRUCTION NO. 18
The fact that the wreck occurred is not, of itself, evidence of
negligence on the part of anyone.
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INSTRUCTION NO. 19
When two vehicles are traveling in the same direction, the
vehicle in front has the superior right to use the highway for the
purpose of traveling, and the driver behind must use ordinary care
to operate his vehicle in recognition of this superior right. This does
not relieve the driver of the forward vehicle of the duty to use
ordinary care and to obey the rules of the road.
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INSTRUCTION NO. 20
In determining whether Mr. Howze or Ms. Lewis was
negligent, you may consider the following three rules of the road:
(a) It is the duty of the driver of a motor vehicle to keep a
lookout for other vehicles or persons on the highway. The lookout
requried is that which a reasonably careful driver would keep under
circumstances similar to those shown by the evidence in this case.
(b) It is the duty of the driver of a motor vehicle to keep his or
her vehicle under control. The control required is that which a
reasonably careful driver would maintain under circumstances
similar to those shown by the evidence in this case.
When danger would be reasonably apparent to the driver who
is keeping a proper lookout, then he or she is required to use
ordinary care to have his or her vehicle under such control as to be
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able to check its speed or stop it, if necessary, to avoid damage to
others.
(c) It is the duty of the driver of a motor vehicle to drive at a
speed no greater than reasonable and prudent under the
circumstances, having due regard for any actual or potential
hazards.
A failure to meet the standard of conduct required by any of
these three rules is negligence.
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INSTRUCTION NO. 21
There were in force in the State of Arkansas at the time of the
occurrence three applicable statutes. They provided:
First, it shall be unlawful for any person to drive or
operate any vehicle in such a careless manner as to evidence a
failure to keep a proper lookout for other traffic, vehicular or
otherwise, or in such a manner as to evidence a failure to
maintain proper control on the public thoroughfares or private
property in the State of Arkansas.
It shall be unlawful for any person to operate or drive any
vehicle on the public thoroughfares or private property in the
State of Arkansas in violation of the following prohibited acts:
(i) To operate any vehicle in such a manner which
would cause a failure to maintain control; or
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(ii) To operate a vehicle in any manner when the driver
is inattentive and such inattention is not reasonable and
prudent in maintaining vehicular control.
Second, no person shall drive a motor vehicle at such a
slow speed as to impede the normal and reasonable movement
of traffic except when reduced speed is necessary for safe
operations or in compliance with the law.
Third, the driver of a motor vehicle shall not follow
another vehicle more closely than is reasonable and prudent,
having due regard for the speed of vehicles and the traffic
upon and the condition of the highway.
The driver of any motor truck or any motor vehicle
drawing another vehicle when traveling upon a roadway
outside of a business or residence district shall not follow
within two hundred feet of another motor vehicle.
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A violation of any of these statutes, although not necessarily
negligence, is evidence of negligence to be considered by you along
with all other facts and circumstances in this case.
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INSTRUCTION NO. 22
If you should find that the wreck was proximately caused by
negligence on the part of Mr. Howze, and not by negligence on the
part of Ms. Lewis, then Ms. Lewis is entitled to recover the full
amount of any damages you may find she has sustained as a result
of the wreck.
If you should find that the wreck was proximately caused by
negligence of Ms. Lewis and Mr. Howze, then you must compare
the percentages of their negligence.
If the negligence of Ms. Lewis is of less degree than the
negligence of Mr. Howze, then Ms. Lewis is entitled to recover any
damages which you may find she has sustained as a result of the
occurrence reduced in proportion to the degree of her own
negligence. The Court will make this reduction based on your
apportionment of negligence.
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On the other hand, if Mr. Howze was not negligent, or if the
negligence of Ms. Lewis is equal to or greater in degree than the
negligence of Mr. Howze, then Ms. Lewis is not entitled to recover
any damages.
Again, because Old Dominion employed Mr. Howze, any
negligence on his part is imputed to his employer.
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INSTRUCTION NO. 23
If you decide for Ms. Lewis on the question of liability, then
you must then fix the amount of money which will reasonably and
fairly compensate her for any of the following six elements of
damage sustained, which you find were proximately caused by the
negligence of Mr. Howze:
First: The nature, extent, and duration and permanency of any
injury.
Second: The reasonable expense of any necessary medical care,
treatment and services received, including transportation and board
and lodging expenses necessarily incurred in securing such care,
treatment, or services and the present value of such expense
reasonably certain to be required in the future.
Third: Any pain and suffering and mental anguish experienced
in the past and reasonably certain to be experienced in the future.
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Fourth: The value of any earnings lost and the present value of
any earnings reasonably certain to be lost in the future.
Fifth: Any scars and disfigurement and visible results of her
injury.
Sixth: The reasonable expense of any necessary help in her
home, which has been required as a result of her injury and the
present value of such expense reasonably certain to be required in
the future.
Whether any of these six elements of damage has been proved
by the evidence is for you to decide.
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INSTRUCTION NO. 24
I have used the expression “present value” in these instructions
with respect to certain elements of damage which you may find that
Ms. Lewis will sustain in the future. This simply means that if you
find that Ms. Lewis is entitled to recover any elements of damage
which require you to determine their present value, you must take
into consideration the fact that money recovered will earn interest,
if invested, until the time in the future when these losses will
actually occur. Therefore, you must reduce any award for future
damages to compensate for the reasonable earning power of money.
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INSTRUCTION NO. 25
This case is submitted to you on questions. Your answers to
these questions will be your verdict in this case.
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QUESTION NO. 1
Question No. 1:
Do you find by a preponderance of the
evidence that there was negligence on the part of Melvin “Keith”
Howze that was a proximate cause of any damages Carla Lewis may
have sustained?
Yes_____
No_____
Instruction: If you answered Question No. 1 “Yes,” then go
to Question No. 2. If you answered Question No. 1 “No,” then
your deliberations are done. Go to the last page, where the
foreperson must sign and date the form. Then advise the Court,
through the court security officer, that you’ve reached a verdict.
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QUESTION NO. 2
Question No. 2:
Do you find, by a preponderance of the
evidence, that there was negligence on the part of Carla Lewis that
was a proximate cause of any damages she may have sustained?
Yes_____
No_____
Instruction: If you answered Question No. 2 “Yes,” then go
to Question No. 3. If you answered Question No. 2 “No,” then skip
Question No. 3, and go to Question No. 4.
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QUESTION NO. 3
Question No. 3: Using 100% to represent the total negligence
for the wreck, apportion the negligence between the two parties to
this case:
Melvin “Keith” Howze (and Old Dominion) _____%
Carla Lewis
_____%
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QUESTION NO. 4
Instruction: Answer this Question only if you answered
Question No. 1 “Yes.” Don’t reduce the damages awarded (if any)
by the percentage of negligence (if any) put on Carla Lewis. The
Court will make that reduction, based on your apportionment of
negligence. If Ms. Lewis’s percentage of negligence is equal to or
greater than Melvin “Keith” Howze/Old Dominion’s negligence,
Ms. Lewis will not recover any damages.
Question No. 4: State the total amount of damages that you
find, based on a preponderance of the evidence, Carla Lewis
sustained in the wreck: $____________________.
Sign this form and advise the Court that you have finished
your deliberations.
____________________
Foreperson
_______________
Date
__________
Time
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INSTRUCTION NO. 26
You will take these Questions to the jury room, and when each
of you has agreed on the answers, your foreperson will fill in the
forms for each Interrogatory that you are called upon to answer to
reflect your unanimous decision, sign and date them, and then
advise the court security officer that you are ready to return to the
courtroom.
I add the caution that nothing said in the instructions—and
nothing in the form of the Questions prepared for your
convenience—is or was intended to suggest or convey in any way
or manner any intimation as to what answers I think you should
find. How you choose to answer the Questions shall be the sole and
exclusive responsibility of you, the Jury.
If it becomes necessary during your deliberations to
communicate with the Court, you may send a note by the court
security officer, signed by your foreperson, or by one or more
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members of the Jury. No member of the Jury should ever attempt to
communicate with the Court by any means other than a signed
writing; and the Court will never communicate with any member of
the Jury on any subject touching the merits of the case, other than in
writing, or orally here in open Court.
You will note from the oath about to be taken by the court
security officer to act as bailiff that he, and all other persons, are
forbidden to communicate in any way or manner with any member
of the Jury on any subject touching the merits of the case. Bear in
mind also that you must never reveal to any person, not even to the
Court, how the Jury stands, numerically or otherwise, on the issue
presented to you unless or until you reach a unanimous verdict.
Court security officer, do you solemnly swear to keep this Jury
together in the jury room, and not to permit any person to speak to
or communicate with them, concerning this case, nor to do so
yourself unless by order of the Court or to ask whether they have
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agreed on a verdict, and to return them into the Courtroom when
they have so agreed, or when otherwise ordered by the Court, so
help you God?
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