35.04 [1998 Revised] Illustrations(Comparative Fault(Right Angle Collision(Suit Against Driver and His Employer(Agency in Issue(Counterclaim for Personal Injury by Employee

Instruction No 1 35.04 [1998 Revised] IllustrationsCComparative FaultCRight Angle CollisionCSuit Against Driver and His EmployerCAgency in IssueCCounterclaim for Personal Injury by Employee Plaintiff, I.M. Hurt, was driving an automobile which collided with a truck owned by Beer Baron, Inc. and driven by its deliveryman-employee, Terry Trucker. The collision occurred at an uncontrolled intersection which Hurt entered from the right and Trucker from the left. Trucker testified that he got there first. Hurt has sued both defendants for personal injury and Trucker has counterclaimed for personal injury. Comparative fault is in issue as to both claims. There is a dispute as to whether Trucker was within the scope of employment. 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. The order in which the instructions are given is no indication of their relative importance. All of the instructions are in writing and will be available to you in the jury room. Instruction No. 3 (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. 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 2.04 (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. 6 (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. 7 (See MAI 14.08 (1978 New)) The phrase "yield the right-of-way" as used in these instructions means that if both vehicles reach the intersection at approximately the same time, the driver on the left is required to yield but if both vehicles do not reach the intersection at approximately the same time, then a driver is required to yield to another vehicle which enters the intersection first. ****** Instruction No. 8 (See MAI 2.05 (1980 New)) Instructions 8 through 16 and general instructions 1 through 7 apply to the claim of I.M. Hurt for personal injury. Use Verdict A to return your verdict on this claim. Instruction No. 9 (See MAI 13.05 (1990 Revision)) Acts were within the "scope and course of employment" as that phrase is used in these instructions if: 1. they were a part of the work defendant Trucker was employed to perform, and 2. they were done by defendant Trucker to serve the business of defendant Beer Baron, Inc. Instruction No. 10 (See MAI 37.01 (1986 New), 17.02 (1980 Revision), 17.05 (1965 New), 17.08 (1965 New), 19.01 (1986 Revision) (First Option)) In Verdict A you must assess a percentage of fault to defendant Trucker, whether or not plaintiff Hurt was partly at fault, if you believe: First, either: Second, defendant Trucker, in any one or more of the respects submitted in paragraph First was thereby negligent, and Third, such negligence directly caused or directly contributed to cause damage to plaintiff. Instruction No. 11 (See MAI 37.04 (1986 New), 33.04(5) (1995 Revision)) In your verdict you must not assess a percentage of fault to defendant Trucker unless you believe defendant Trucker failed to keep a careful lookout or defendant Trucker failed to yield the right-of-way. Instruction No. 12 (See MAI 37.01 (1986 New), 37.05(1) (1991 Revision)) In your verdict you must find defendant Beer Baron, Inc. responsible for any percentage of fault you may assess to defendant Trucker, whether or not plaintiff Hurt was partly at fault, if you believe defendant Trucker was operating defendant Beer Baron, Inc.'s truck within the scope and course of his employment by defendant Beer Baron, Inc. at the time of the collision. Instruction No. 13 (See MAI 37.04 (1986 New), 33.04(5) (1995 Revision)) In your verdict you must not find defendant Beer Baron, Inc. responsible for any percentage of fault you may assess to defendant Trucker unless you believe defendant Trucker was operating defendant Beer Baron, Inc.'s truck within the scope and course of his employment by defendant Beer Baron, Inc. at the time of the collision. Instruction No. 14 (See MAI 37.02 (1986 New), 17.02 (1980 Revision), 17.05 (1965 New), 17.08 (1965 New)) In Verdict A you must assess a percentage of fault to plaintiff Hurt, whether or not defendant Trucker was partly at fault, if you believe: First, either: Second, plaintiff Hurt, in any one or more of the respects submitted in paragraph First was thereby negligent, and Third, such negligence directly caused or directly contributed to cause any damage plaintiff may have sustained. Instruction No. 15 (See MAI 37.04 (1986 New), 33.04(5) (1995 Revision)) In your verdict you must not assess a percentage of fault to plaintiff unless you believe plaintiff failed to keep a careful lookout or plaintiff failed to yield the right-of-way. Instruction No. 16 (See MAI 37.03 (1986 New)) If you assess a percentage of fault to defendant Trucker, then, disreg