35.02 [1998 Revision] Illustrations(Apportionment of Fault(Defendant Adjudged at Fault in Prior Trial Claiming Apportionment in Separate Trial

Instruction No 1 35.02 [1998 Revision] IllustrationsCApportionment of FaultCDefendant Adjudged at Fault in Prior Trial Claiming Apportionment in Separate Trial Sam Sampson was a passenger in a Ford automobile being driven by his friend William White. Sampson was seriously injured when the Ford automobile collided with a Missouri Pacific train at a railroad grade crossing. In prior litigation, Sampson obtained a judgment for his personal injuries in the amount of $300,000 against Missouri Pacific. In the present action, Missouri Pacific brings an independent action against William White seeking apportionment of fault of the damages awarded Sampson against Missouri Pacific. Instruction No. 1 Instruction No. 2 (Same as MAI 2.01) (See MAI 2.03 (1980 New)) As you remember, the court gave you a general instruction before the presentation of any evidence in this case. The court will not repeat that instruction at this time. However, that instruction and the additional instructions, to be given to you now, constitute the law of this case and each such instruction is equally binding upon you. You should consider each instruction in light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence. Instruction No. 3 (See MAI 11.02 II (1996 Revision)) The term "negligent" or "negligence" as used in these instructions means the failure to use that degree of care that a very careful person would use under the same or similar circumstances. Instruction No. 4 (See MAI 3.01 (1998 Revision)) In these instructions, you are told that your verdict depends on whether or not you believe certain propositions of fact submitted to you. The burden is upon the party who relies upon any such proposition to cause you to believe that such proposition is more likely to be true than not true. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. If the evidence in the case does not cause you to believe a particular proposition submitted, then you cannot return a verdict requiring belief of that proposition. Instruction No. 5 (See MAI 2.02 (1980 Revision)) In returning your verdict you will form beliefs as to the facts. The court does not mean to assume as true any fact referred to in these instructions but leaves it to you to determine what the facts are. Instruction No. 6 (See MAI 2.04 (1981 Revision)) There are two claims submitted to you and each of them contains a separate verdict form. The verdict forms included in these instructions contain directions for completion and will allow you to return the permissible verdicts in this case. Nine or more of you must agree in order to return any verdict. A verdict must be signed by each juror who agrees to it. ****** Instruction No. 7 (See MAI 2.05 (1980 New)) Instructions 7 and 8 and general instructions 1 through 6 apply to the claim of plaintiff Missouri Pacific seeking an apportionment of fault. Use Verdict A to return your verdict on this claim. Instruction No. 8 (See MAI 17.02 (1980 Revision), 17.03 (1965 New), 17.05 (1965 New), 19.01 (1986 Revision)) Your verdict must be for plaintiff Missouri Pacific if you believe: First, either: Second, defendant William White, in any one or more of the respects submitted in Paragraph First, was thereby negligent, and Third, such negligence either directly caused or directly contributed to cause damage to Sam Sampson. VERDICT A (See MAI 36.16 (1979 New)) Note: Complete this form by writing in the name required by your verdict. On your claim of plaintiff Missouri Pacific seeking an apportionment of fault, we, the undersigned jurors, find in favor of: (Plaintiff Missouri Pacific) or (Defendant William White) Note: All jurors who agree with the above findings must sign below: ****** Instruction No. 9 (See MAI 2.05 (1980 New)) Instructions 9 and 10 and general instructions 1 through 6 apply to the claim for assessment of the proportions of fault. Use Verdict B to return your verdict on this claim. Instruction No. 10 (See MAI 4.14 (1979 New)) If your verdict is in favor of plaintiff Missouri Pacific and against defendant William White on the claim seeking apportionment of fault for the $300,000 damages awarded Sam Sampson in the other trial mentioned in the evidence, you must assess the proportion of the fault which each party listed in Verdict B has for such damage. VERDICT B (See MAI 36.15 (1979 New)) Note: Complete this form if fault is to be apportioned. On the claim of plaintiff Missouri Pacific for assessment of the proportions of fault for Sam Sampson's damages assessed in the prior trial, we, the undersigned jurors, find: Note: Complete by writing in the percentage of the relative fault for each party you believe to be at fault. You may not write in "zero" for plaintiff Missouri Pacific. The total of the percentage you assess must not exceed 100%. Note: All jurors who agree with the above findings must sign below. ******