i'd like to reserve five minutes of my time for rebuttal if i make the ultimate issue in this appeal is relatively simple the issue is whether the verdict that the jury returned on the trial this matter was a special verdict or a general bergner if it indeed was a special verdict as we argue as we have shown in our papers then the appellants are entitled to a new trial because the verdict us i don't know your honor in the post trial briefing we did before her to forty nine a i believe what the court was interpreted was that because we ask for the remedy that's provided in forty nine  there is no remedy specifically provided in forty nine dollars a that we've therefore conceded that forty nine dollars b was the appropriate standard that's not what we argued that's not what we meant and i think that's a very limited reading of what the remedy for gore forty nine should be the remedy in forty nine b does say that you have three options one of which is a new trial but we did not concede in any way that this was a rule forty nine dollars b verdict we always said that it was a special verdict in a special burgess treated differently than it then a general verdict i don't know what else we would have referred to specifically for the remedy for a an inconsistent special verdict other they have what was in forty nine how is it that you're in a position to come clean about the consequences of the verdict for you helped craft everyone helped craft the verdict form as you well know it's a combination of discussions from both parties and a final decision by the court to be honest i don't think anyone recognized that there was a way for the jury to get this wrong from the way that they did and in fact it does violate one of the specific jury instructions that said that said that you can only find needler liable if you find that they violated that and that the a violation it was a cause of the accident so everybody missed the possibility in going through the specific special verdict form that the jury could do what it did but it was covered by the instructions as well and had the jury followed the instructions the of course would not then have filled out the quite frankly at that point we all assumed that the jury was going to find that then a violation of occurred and that it was a cause certainly that's what the railroads thought because that's what that's what had been argued that's what we had moved the court for that's what everyone had concluded as we were going through all of this but every three would lose or we never occurred to you you would lose on not this bet we did this form a little bit unusual in that  it's almost like a hybrid it doesn't ask strictly factual questions because that portion of liability is going to be taken by the court and that's really going to be th the verdict it's going to allocate fault and that's going to be the verdict so it's not the type of situation where you have fact fact fact fact and the judge if the judge disagrees knocks out one and you know changes it it in some ways the judge was correct that this is somewhat a general verdict was specific factual questions how was that totally  error on the part of judge rusty because anytime you're assigning fault to a variety of into t's including two of which you are not parties you are making specific findings of fact you are not providing a general verdict there's no way how's that if you're saying if you're saying you're at fault and you're at fall and you're at fault by these percentages you are making a statement about liability you are making an assertion that there's liability you're just being slightly more specific in saying the percentages by which liability is shared why is that not a statement of why ability just the same as any other general verdict statement a liability no where else in our court system does the court unless the court is sitting is a fact finder assign percentages of liability that is a specific factual act for the jury or the judge's fact finder to the terms would be different in your mind if if before assigning out the percentages it had said state which party is a y a bull or both yes so because with the fact that it didn't say that but it said state percentages of liability so that they could have filled then you would have gotten to exactly the same spot that formulation is what makes a difference in your mind the formulation i'm sorry i mean the formulation about the percentage of liabilities right yes that is what makes the difference between a special and a general verdict if it's only a yes or no on the law well in the court can decide and then it's yes or no but you have to have a factual it that it's that you do have an assertion of liabilities and that the distinction not exactly a finding of a specific percentage of fault is again something that a court cannot do you can't do that legally when you're finding fault or not it's either a yes or no which is what a general verdict is when you are spreading it when you are assigning specific percentages of liability that can only be a factual finding a court sitting as a courthouse a consistent with or  other breaks equally or group your honor was there was a different issue altogether in that there were specific questions of liability that the jury provided yes or no answers and that's different then those specific questions that the jury got in this case which were did neither violate the hey did the violation cause the accident when you get the question for that's the one we're focused on when you get to question four i mean you'd be writing zeros if there was no fall for party exactly that's this right but because they found hope for a party and they found a specific fact finding of whether a party was seventy five dollars were fifty or twenty five percent  fault then itself is a fact finding a court cannot make a fact finding that one party is seventy five percent and one part is twenty five percent liable not sitting in law you can as you if you are the fact finder that there is not what a general break is and the general for gives you all or nothing but as a matter of law we know we know their response to question number one if they didn't violate the law and number two answer no we know as a matter of law that the five percent cannot stand isn't that correct and that's what you're trusting determined you cannot stand given the two answers that they gave which shows that the answer that they gave a number for was inconsistent with it in place the figure is one in one and two not cannot stand it cannot stand if they found that that five percent cannot be as as a matter of law correct which is why the only recourse is a new trial because you can't enter judgment on that with a jury has been there's recourse is given why we cite a rule forty nine b three for the options if the court had available to it otherwise so why did we not say in this situation given what happened here since the answer to four is verdict so what you've done there is the court is you have selected one over another well he selected one dollar he doesn't say you have to have a new trial case law made but it seems that could be distinguishable also sure one of the other remedies then which is that which is the question that the case law kind of asks asks us the case law suggests that if you have a special verdict that is inconsistent then the case law suggests you are entitled to a new trial it's different if you've got a general verdict or a general break with questions and that's where the three soul the issue in this case is whether we have a general verdict versus a special verdict i think it's very clear from the lower trial courts position and reach a verdict and that's what question for actually is it's a finding a fault it's a finding of legal responsibility based on the findings of fact and i think the trial court had it on it hit the nail on the head when he said that follows the form nobody objected to this in the aftermath of the jury term and in the post trial decision the judge sort dividing point we wouldn't be here if it weren't that sure nobody stood up and said wait a nd there's an inconsistency here before the jury walked out so given that that's the case why should the why should the verdict be molded in your favor why should why should the fair did jack fall entirely on c p and not fall equally on needler and the result be a new trial well because i the the answer to that is that the judge is empowered and has the authority under forty nine dollars b to make that to mold the verdict to be consistent with the with the factual findings and that's what the judge did in this case technically both parties according to the trial judge waived their forty nine b motions because we did so after the jury had been dismissed i don't think there's any question about that neither neither needler nor c p can go back and and reinvent that part of the of the trial i think it's very clear from the trial transcript that the jury had been dismissed and that my motion to mold the verdict was made after the jury had been dismissed in the trial or points that out but if it's deemed to be waived as to her would be deemed to be waived as to c p s well so you know i'm willing you know i'm willing to concede the fact that that under the rules that both of those would be waived but i think that the judge is empowered on out any specific really way but cases like talks about what is really in the release is generally used to be a new trial right well it's it can be understood to be a new trial it doesn't mean that the judge is compelled to give a new trial just as you're not compelled to give a new trial you know there's there's overreaching theories and case law that that allows the judge why of latitude in finding relief is justice requires to avoid a miscarriage of justice to you know give the prevailing party so it still is part of your argument that it doesn't matter whether it's forty nine a or forty nine well as you still get the benefit of the forty nine options well i think that i think that if we if we extend the argument to that to that length then that's what i would ask the court to do but i'm not willing to concede my forty nine b arguments because i think it's fairly clear that the judge that the jury was told during jury instructions that they were going to make findings of fact they were going to apply those facts to the law that they were going to render in the burdekin favor one person or the other now we're in that your instructions to say they're going to render a verdict that was the judge and it isn't said in every cases and i mean by your by your lights everything's a general verdict that because in every case it's boilerplate for a judge to tell a jury it's your job to reach  special very well as attorney pretty said you know the attorneys went back and forth we negotiated this presented our journey are our jury instructions that we wished the judge to to give to the jury and then the and then the judge makes the decision on which jury instructions to give or not give sure but those are things we submit to the german yes but that's really not responsive to the question i'm trying to put to you which is your argument is the judge said you have to reach a just a verdict there go this was a general verdict but the judge always tells the jury you've got to reach a just verdict that's i'm not aware of any case ever in which you judge has it making is that kind of language because that's just standard boilerplate when you're instructing a jury it's like saying welcome to the court well well i think that had if that is the boilerplate type of jury instruction had c intended this to be a special verdict they certainly could have presented that to the court at every opportunity to say a special verdict on the form well you know we can argue about why it says i saw her nick on the form i mean i don't know ok and that's  it asks questions like crown life liable or not liable agency holding a liable or not liable corporate liable or not liable these these  it goes through this one at a time for the various claims and the court comes to the conclusion that that's a special verdict form how is that different in a meaningful way from the verdict form here how that how would how do we distinguish now a duffer do we need to well i think in that case your honor what we have is a series of questions that are just like the st three questions in this case you know they're they're asking about liability they're more they're not saying did you violate this statute or did you were you negligent in doing x it's a specific question about liability well as you as you know each each individual claim has it's own has to meet its own standards you know for negligence we have a duty breach causation injuries so in this particular case because we're talking about the ally ok we needed to have findings of fact just like in the mallee case they had to have findings of fact as it relates to each particular claim and those are not the same claims that we have know i know they're not the same claims i'm just trying to rationalize you may you may very well be correct that this is a general verdict the judge rothstein correctly viewed this as a general rule that she thought question for was a statement about liability and therefore was properly viewed as a general verdict with written questions associated with all the other questions i'm just asking you i'm looking at the mallee death case than forty nine dollars b and wondering how we square that up with what we got here well i think in the mallee duck case you have a clear example of when the judge applies the findings of fact to the law and the judge makes the ultimate burnet that the decision in that case so he takes no it's because the liability is stated corker is liable or not liable as to a specific claim sure that's not a and that's not a something for the judge to do that's the jury's finding it sure and upon a finding by the jury as to that back the judge has to apply the law in that case as as the as the law says for the judge to apply in this case the judge did not have that did not reserve as to specific claims that were made in that case were the questions of fact questions about the ultimate issue liability that's what makes this valley death case hard for you and why i'm trying to get you to come to grips for it the court had a verdict sheet front of it where it wasn't questions of fact it was questions on the ultimate issue of liability or not liability as to each claim and yet the conclusion was this is forty nine dollars i cannot and i agree with you with your interpretation of that of that of that case but any time you look at this this issue of whether it's a forty nine b or forty nine and it hasn't there has to be some opinion gathering as to how duff case and there is no showing that the jury was actually asked to render a verdict or to apply the factual issues to the law and that's where the judge comes in does that for the jury and that wasn't done in this case and you know it doesn't show that in the in the actual case file about the judge what the jury instructions were were not in that case but the jury instructions clearly in the mallee case from the verdict it was clear that they were asked  to issue decisions of fact they were not asked to render a verdict they were not asked to apply the those findings of fact to the law and issue a burdick as was in this case and you know i think the jury instructions are earth are very important in the in the the case is show that that it's not you can go beyond the four corners of the verdict slip look at the jury instructions was the jury asked to apply the findings of fact to the law and render a burden and that's exactly what the judge's judge here instructed the jury to do when you're done answering the questions you will be asked to apply the law and render a verdict in you know in favor of one party or the other though this case is a little more complicated because we had a nonparty was on the verdict and we had a party during the didn't come to trial but were sanctioned the defendant in the case and then the a portion of that i can't tell you that it was some great theory that we made to let the jury walk out before we figure out that there was an inconsistent verdict that is something that we missed and the time that we got diverted to we were looking through what it meant the judge said good bye to the jury and asked if we had any questions and at the moment we we did not so hope that was if it were a forty nine b general verdict that would be the end of the case but the fact that it was a special verdict under four hundred and ninety eight and the way the law applies to our to the requirement that you ask the jury to reconsider it doesn't apply to forty nine a so our failure to ask the jury to reconsider its answers at that time is not  of what would prevent us from finding as you said that it was a forty nine a but given what we see and the answers to question one to find that the appropriate remedy here is not a new would prevent us from saying a new trial is not warranted based upon the specific facts of this the case law says that in the case of the special verdict when it is irreconcilable the only remedy deal with the is there statements in that a special verdict is a form where the jury answers only special finding us on issues that the jury needs no more in the jury instruction then the you are to reach a just verdict right yes ok there was a it basically parroted what was in the what was in the questions the fact questions that the jury need to answer in the verdict it's improper to answer just so if the if the jury was given instructions about what the nature of the law was in it was given a form in which it was asked to assign liability under the terms of pl are itself isn't that doesn't that take it out of the realm of special verdict particularly when we side with approval the portuguese from the six circuit is the jury's sole function is to determine the facts when there's a special they agree in this case i agree with that your honor and in this case what we have is we have the jury finding only facts in the questions that are  issue there is no question in there that is a legal question that is providing a general verdict they are answering when they went in they violate did they violate the law and and and even more to the point when you say to somebody  you're liable orci making a statement about liability which is beyond the facts there is no statement in this that says you are liable there is which is the point that it's a guy could be if there's it's implicit is it not  dividing up the liability you can't answer that question without answering the question of why billy you can't assign percentages of fault unless there's fall it's implicit there's no way around that is there absolutely one hundred what the jury was asked to do and what they did was not say is any party at fault they ask a question does this violate the l a and it gave the specific provisions of the l a point need to questions one hundred and twenty three i'm talking about a question for question for tasks for a portionment of liability doesn't it have saluted ok how can you have for your liability unless you've made a statement or making a judgement about liability because if you find yes so the questions then the conclusion is that you have found liability that is very different than finding liability as a legal question what the jury did was they answered facts and under the special verdict form their answer to those facts determined whether there was liability we're not there's a difference between answering the facts and then concluding that you have liability and answering the ultimate liability question if i may if this is not a special verdict what is i suppose