UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JACQUELINE S. HOMANN, )

Trustee, )

)

Plaintiff, )

)

v. ) Case No. 2:14-cv-40

)

NORFOLK SOUTHERN )

RAILWAY COMPANY, )

)

Defendant. )

ORDER

At the close of the evidence and before the argument of counsel, the Court indicates that it 

will give to the jury, after argument of counsel, Court’s Instructions numbered 1 through 28, both 

inclusive.

ENTER: April 25, 2018. 

/s/Andrew P. Rodovich

United States Magistrate Judge

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 1 of 29
COURT’S INSTRUCTION NO. 1

Members of the jury, you have seen and heard all the evidence and arguments of the 

attorneys. Now I will instruct you on the law.

You have two duties as a jury. Your first duty is to decide the facts from the evidence in 

the case. This is your job, and yours alone.

Your second duty is to apply the law that I give you to the facts. You must follow these 

instructions, even if you disagree with them. Each of the instructions is important, and you must 

follow all of them.

Perform these duties fairly and impartially. 

Nothing I say now, and nothing I said or did during the trial, is meant to indicate any 

opinion on my part about what the facts are or about what your verdict should be.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 2 of 29
COURT’S INSTRUCTION NO. 2

In this case, the plaintiff Jacqueline Homann is a trustee on behalf of a bankruptcy estate 

and the defendant Norfolk Southern Railway Company is a corporation. All parties are equal 

before the law. A bankruptcy estate trustee and a corporation are entitled to the same fair 

consideration that you would give any individual person.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 3 of 29
COURT’S INSTRUCTION NO. 3

The evidence consists of the testimony of the witnesses, the exhibits admitted in evidence, 

and stipulations.

A stipulation is an agreement between both sides that certain facts are true.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 4 of 29
COURT’S INSTRUCTION NO. 4

During the trial, certain testimony was presented to you by video deposition. You should 

give this testimony the same consideration you would give it had the witness appeared and 

testified here in court.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 5 of 29
COURT’S INSTRUCTION NO. 5

Certain things are not to be considered as evidence. I will list them for you:

First, if I told you to disregard any testimony or exhibits or struck any testimony or 

exhibits from the record, such testimony or exhibits are not evidence and must not be considered.

Second, anything that you may have seen or heard outside the courtroom is not evidence 

and must be entirely disregarded.

Third, questions and objections or comments by the lawyers are not evidence. Lawyers 

have a duty to object when they believe a question is improper. You should not be influenced by 

any objection, and you should not infer from my rulings that I have any view as to how you 

should decide the case.

Fourth, the lawyers’ opening statements and closing arguments to you are not evidence. 

Their purpose is to discuss the issues and the evidence. If the evidence as you remember it 

differs from what the lawyers said, your memory is what counts.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 6 of 29
COURT’S INSTRUCTION NO. 6

In determining whether any fact has been proved, you should consider all of the evidence 

bearing on the question regardless of who introduced it.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 7 of 29
COURT’S INSTRUCTION NO. 7

You should use common sense in weighing the evidence and consider the evidence in light 

of your own observations in life.

In our lives, we often look at one fact and conclude from it that another fact exists. In law,

we call this “inference.” A jury is allowed to make reasonable inferences. Any inference you 

make must be reasonable and must be based on the evidence in the case.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 8 of 29
COURT’S INSTRUCTION NO. 8

You may have heard the phrases “direct evidence” and “circumstantial evidence.” Direct 

evidence is proof that does not require an inference, such as the testimony of someone who 

claims to have personal knowledge of a fact. Circumstantial evidence is proof of a fact, or a 

series of facts, that tends to show that some other fact is true.

As an example, direct evidence that it is raining is testimony from a witness who says, “I 

was outside a minute ago and I saw it raining.” Circumstantial evidence that it is raining is the 

observation of someone entering a room carrying a wet umbrella.

The law makes no distinction between the weight to be given to either direct or 

circumstantial evidence. You should decide how much weight to give to any evidence. In 

reaching your verdict, you should consider all the evidence in the case, including the 

circumstantial evidence.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 9 of 29
COURT’S INSTRUCTION NO. 9

You must decide whether the testimony of each of the witnesses is truthful and accurate, in 

part, in whole, or not at all. You also must decide what weight, if any, you give to the testimony 

of each witness.

In evaluating the testimony of any witness, including any party to the case, you may 

consider, among other things:

- the ability and opportunity the witness had to see, hear, or know the things that the 

witness testified about;

- the witness’s memory;

- any interest, bias, or prejudice the witness may have;

- the witness’s intelligence;

- the manner of the witness while testifying; and

- the reasonableness of the witness’s testimony in light of all the evidence in the case.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 10 of 29
COURT’S INSTRUCTION NO. 10

You may consider statements given by someone before trial as evidence of the truth of 

what he or she said in the earlier statements, as well as in deciding what weight to give his or her 

testimony.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 11 of 29
COURT’S INSTRUCTION NO. 11

You may find the testimony of one witness or a few witnesses more persuasive than the 

testimony of a larger number. You need not accept the testimony of the larger number of 

witnesses.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 12 of 29
COURT’S INSTRUCTION NO. 12

You have heard witnesses give opinions about matters requiring special knowledge or 

skill. You should judge this testimony in the same way that you judge the testimony of any other 

witness. The fact that such person has given an opinion does not mean that you are required to 

accept it. Give the testimony whatever weight you think it deserves, considering the reasons 

given for the opinion, the witness’s qualifications, and all of the other evidence in the case. 

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 13 of 29
COURT’S INSTRUCTION NO. 13

When I say a particular party must prove something by “a preponderance of the evidence,” 

or when I use the expression “if you find,” or “if you decide,” this is what I mean: When you 

have considered all the evidence in the case, you must be persuaded that it is more probably true 

than not true.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 14 of 29
COURT’S INSTRUCTION NO. 14

Deposition and trial transcripts are not available to the jury during its deliberations. You 

should proceed with your deliberations on the basis of the law given in the Court’s instructions 

and the evidence introduced in the course of this trial.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 15 of 29
COURT’S INSTRUCTION NO. 15

The plaintiff claims that the defendant, Norfolk Southern Railway Company, violated the 

Locomotive Inspection Act, which requires a railroad to obey certain regulations about railroad 

operations. Those regulations require a railroad to ensure that a locomotive and its parts which 

are used on its line of railroad are in proper condition and safe to operate without unnecessary 

danger of personal injury. Norfolk admits that it violated the Locomotive Inspection Act, 49 

C.F.R. § 229.119(a), which requires locomotive cab seats to be securely mounted and braced.

To succeed in the Locomotive Inspection Act claim, the plaintiff must prove by a 

preponderance of the evidence that Norfolk’s violation of the Locomotive Inspection Act caused 

or contributed to Jonathan Sparks’ injuries.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 16 of 29
COURT’S INSTRUCTION NO. 16

Norfolk “caused or contributed to” Sparks’ injury if its violation of the Locomotive 

Inspection Act played a part – no matter how small – in bringing about the injury. There can be 

more than one cause contributing to an injury. The mere fact that an injury occurred does not 

necessarily mean that the injury was caused by Norfolk’s violation of the Locomotive Inspection 

Act.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 17 of 29
COURT’S INSTRUCTION NO. 17

The plaintiff alleges that Sparks and Norfolk were mutually mistaken regarding the nature 

and extent of Sparks’ injuries when they entered into the release.

To set aside the release based on mutual mistake of fact, the plaintiff must prove, by clear 

and convincing evidence, the following:

1. both parties to the release had a common belief about a fact crucial to the release; 

2. both parties were mistaken in their belief; and 

3. if the parties had not been mistaken, Sparks’ decision about whether to enter into the 

release reasonably might have been different.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 18 of 29
COURT’S INSTRUCTION NO. 18

When I say that the plaintiff must prove mutual mistake of fact by “clear and convincing 

evidence,” this is what I mean: When you have considered all of the evidence, you are 

convinced that it is highly probable that it is true. This is a higher burden of proof than “more 

probably true than not.” Clear and convincing evidence must persuade you that it is “highly 

probably true.”

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 19 of 29
COURT’S INSTRUCTION NO. 19

A mutual mistake of fact is sufficient to avoid a release only when the mistake goes to the 

nature of the injury, not the expected course of healing, and when the mistaken belief is held by 

both parties; in other words, a misdiagnosis is a sufficient basis for mutual mistake of fact, but an 

incorrect prognosis is not. If the diagnosis of the actual injury is in error, then the parties have 

not agreed on an essential element of the contract, and the release should be invalidated. 

However, if the parties are mistaken only as to future facts, that is, the outcome of the injury, 

then the release should not be set aside.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 20 of 29
COURT’S INSTRUCTION NO. 20

If you find in favor of the plaintiff, then you must determine the amount of money that 

will fairly compensate Sparks for any injury that you find he sustained and is reasonably certain 

to sustain in the future.

The plaintiff must prove damages by a preponderance of the evidence. The award must be 

based on evidence and not speculation or guesswork. This does not mean, however, that 

compensatory damages are restricted to the actual loss of money; they include both the physical 

and mental aspects of injury, even if they are not easy to measure.

You should consider the following types of compensatory damages, and no others:

1. The reasonable value of medical care and supplies that Sparks reasonably needed 

and actually received.

2. The wages that Sparks has lost.

3. The physical and mental/emotional pain and suffering and disability/loss of a normal

life including any aggravation of a pre-existing condition that Sparks has experienced and 

is reasonably certain to experience in the future. No evidence of the dollar value of 

physical or mental/emotional pain and suffering or disability/loss of a normal life has been 

or needs to be introduced. There is no exact standard for setting the damages to be 

awarded on account of pain and suffering. You are to determine an amount that will fairly 

compensate Sparks for the injury he has sustained.

If you find for the plaintiff, any damages you award will not be subject to income taxes, 

so you should consider after-tax income in fixing the amount of damages.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 21 of 29
COURT’S INSTRUCTION NO. 21

If you find for the plaintiff, you should compensate Sparks for any aggravation of an 

existing disease or physical defect resulting from such injury.

If you find that there was an aggravation you should determine, if you can, what portion of 

Sparks’ condition resulted from the aggravation and make allowance in your verdict only for the 

aggravation. However, if you cannot make that determination or if it cannot be said that the 

condition would have existed apart from the injury, you should consider and make allowance in 

your verdict for the entire condition.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 22 of 29
COURT’S INSTRUCTION NO. 22

The extent to which an injury is attributable to a preexisting condition need not be proved 

with mathematical precision or great exactitude. The evidence need only be sufficient to permit 

a rough practical apportionment. 

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 23 of 29
COURT’S INSTRUCTION NO. 23

The plaintiff has asked you to award money based on Sparks’ life expectancy.

According to the Social Security Mortality Table, the life expectancy of a male person 41 

years of age is 37.8 years.

This is evidence you may consider in determining the amount of money to award, if any.

Mortality tables are merely estimates of life expectancy. They are based on statistical 

averages of the remaining length of life of all persons in our country of a given age and sex.

In considering the life expectancy of Sparks, you may evaluate all facts and circumstances that 

bear on the life expectancy of Sparks, including the mortality table and occupation, health 

history, state of health, and habits.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 24 of 29
COURT’S INSTRUCTION NO. 24

Norfolk argues that the plaintiff’s claim should be reduced as a result of Sparks’ failure to 

mitigate his damages.

If you find that:

1. Sparks did not take reasonable actions to mitigate his damages; and

2. that Sparks could have lessened his damages had he taken such reasonable actions to 

mitigate his damages;

you should reduce any amount you might award the plaintiff by the amount Sparks could have 

avoided had he taken reasonable measures to mitigate his damages.

Norfolk must prove both that the reduction should be made and its amount by a 

preponderance of the evidence.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 25 of 29
COURT’S INSTRUCTION NO. 25

You are instructed that the fact that the Court has given an instruction concerning the 

subject of the Sparks’ damages, or that Norfolk’s counsel has discussed such subject, is not to be 

taken by you as any intimation by the Court that this is a case where damages are appropriate or 

as any admission by Norfolk that Sparks has suffered damages, or that Norfolk is liable for the 

damages complained of. The damage instructions have been given so that you may have a 

complete instruction of law.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 26 of 29
COURT'S INSTRUCTION NO. 26

Upon retiring to the jury room, you must select a presiding juror. The presiding juror will 

preside over your deliberations and will be your representative here in court.

Forms of verdict have been prepared for you.

Question 1 asks, Do you find that Norfolk Southern Railway Company’s violation of the 

Locomotive Inspection Act caused or contributed to Sparks’ injuries? If you answer “no,” you 

do not need to answer any further questions and the presiding juror is to sign and date the other 

verdict form. If you answer “yes” to Question 1, you are to proceed to Question 2.

Questions 2 asks, Do you find that the plaintiff may avoid the terms of the release as a 

result of the parties’ mutual mistake? If you answer “no,” you do not need to answer any further 

questions and the presiding juror is to sign and date the other verdict form. If you answer “Yes” 

to Question 2, you are to proceed to Question 3.

At Question 3, you are to state the total amount of Sparks’ damages. If you proceed to 

Question 3, I will enter your verdict in favor of the plaintiff, which will consist of the dollar 

amount you enter in response to Question 3.

Take these forms to the jury room, and when you have reached unanimous agreement on 

the verdict, the presiding juror will fill, date, and sign the appropriate form.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 27 of 29
COURT’S INSTRUCTION NO. 27

I do not anticipate that you will need to communicate with me. If you do need to 

communicate with me, the only proper way is in writing. The writing must be signed by the 

presiding juror, or, if she is unwilling to do so, by some other juror. The writing should be given 

to court personnel, who will give it to me. I will respond either in writing or by having you 

return to the courtroom so that I can respond orally.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 28 of 29
COURT’S INSTRUCTION NO. 28

The verdict must represent the considered judgment of each juror. Your verdict, whether 

for or against the parties, must be unanimous.

You should make every reasonable effort to reach a verdict. In doing so, you should 

consult with one another, express your own views, and listen to the opinions of your fellow 

jurors. Discuss your differences with an open mind. Do not hesitate to reexamine your own 

views and change your opinion if you come to believe it is wrong. But you should not surrender 

your honest beliefs about the weight or effect of evidence solely because of the opinions of other 

jurors or for the purpose of returning a unanimous verdict.

All of you should give fair and equal consideration to all the evidence and deliberate with 

the goal of reaching an agreement that is consistent with the individual judgment of each juror. 

You are impartial judges of the facts.

USDC IN/ND case 2:14-cv-00040-APR document 126 filed 04/25/18 page 29 of 29