Amos v. Norfolk and Western Ry. Co.

• Citation: 191 Ill.App.3d 637,548 N.E.2d 96
• Decision Date: 06 December 1989
• Docket Number: No. 5-88-0352,5-88-0352
• Court: United States Appellate Court of Illinois
• Parties: , 138 Ill.Dec. 866 Edgar L. AMOS, Jr., Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellant.

Page 96

548 N.E.2d 96

191 Ill.App.3d 637, 138 Ill.Dec. 866

Edgar L. AMOS, Jr., Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellant.

No. 5-88-0352.

Appellate Court of Illinois Fifth District.

Dec. 6, 1989.

Thomas W. Alvey, Jr., Kurt E. Reitz, Thompson & Mitchell, Belleville, for defendant-appellant.

Glenn E. Bradford, Terrence V. O'Leary, Morris B. Chapman & Associates, Ltd., Granite City, for plaintiff-appellee.

Justice WELCH delivered the opinion of the court:

Defendant, Norfolk & Western Railway Company, appeals from a judgment entered against it January 22, 1988 by the circuit court of Madison County. A jury had rendered a verdict in favor of plaintiff, Edgar L. Amos, Jr., in his Federal Employer's Liability Act action against defendant in the amount of $800,000 for injuries sustained while employed by defendant railroad.

Plaintiff was employed by defendant as a conductor and switchman. On the morning of August 22, 1984, part of plaintiff's duties was to throw a switch known as the production pocket lead switch. Plaintiff had had trouble throwing this switch in the past and had reported the difficulty to defendant. On that morning, while plaintiff was attempting to throw the switch, it suddenly became stuck and plaintiff felt a pain in his lower back. He was taken to the hospital and has received treatment ever since.

Defendant raises three issues on appeal: (1) whether the trial court erred in refusing to submit to the jury defendant's tendered instruction on plaintiff's duty to mitigate his damages by seeking employment as soon as possible after the injury; (2) whether the trial court erred in admitting into evidence under the business record exception to the hearsay rule plaintiff's exhibits 3, 4 and 5, which were summaries of recorded statements of three railroad employees taken by a railroad claim agent; (3) whether the trial court erred in denying defendant's motion in limine to exclude the testimony of David Bayer, an employee of defendant, who was called by plaintiff but not revealed as a witness to defendant until the day before trial began. We will set forth the facts only as they are necessary to our disposition of this cause.

At trial, defendant tendered two alternate jury instructions on plaintiff's duty to mitigate his damages. The first, based on Brown v. Chicago and North Western Transportation Co. (1987), 162 Ill.App.3d 926, 114 Ill.Dec. 165, 516 N.E.2d 320, reads as follows:

"An injured party is under a legal obligation to mitigate his damages, that is to minimize the economic loss resulting from his injury, by resuming gainful employment as soon as such can reasonably be done.

Failure of the injured party to make reasonable effort to minimize damages does not prevent all recovery for economic loss, but it does preclude recovery for damages or losses which could have been avoided had a reasonable effort to lessen damages been made."

The second jury instruction is based on Baker v. Baltimore & Ohio Railroad Co. (6th Cir.1974), 502 F.2d 638, and reads as follows:

"The law does require that any person who sustains a personal injury must mitigate his damage to the extent reasonably possible. Therefore, with respect to any claim of the plaintiff concerning a reduction in earning power, future lost wages or any inability to earn as much in the future as he would have been able to earn but due to the injuries sustained in October of 1984, (sic) the plaintiff was required to mitigate his damage, and such mitigation may include further scholastic training, vocational rehabilitation training or any other preparation reasonably necessary to improve the plaintiff's earning ability in light of his injury."

Plaintiff objected, arguing that, although plaintiff's duty to mitigate damages is properly argued to the jury, it is not properly the subject of an instruction. Plaintiff pointed out that the instruction is not an Illinois Pattern Jury Instruction, nor has such an instruction been approved by the United States Supreme Court, the Seventh Circuit Court of Appeals, the Illinois Supreme Court or the Fifth District Appellate Court.

The trial court refused defendant's instructions, refusing to follow the decision of the First District Appellate Court in Brown v. Chicago and North Western Transportation Co. (1987), 162 Ill.App.3d 926, 114 Ill.Dec. 165, 516 N.E.2d 320, until the Illinois Supreme Court or the Fifth District Appellate Court followed suit.

In Brown, plaintiff was injured while working for defendant railroad. He brought suit to recover for his injuries pursuant to the Federal Employer's Liability Act (hereinafter "F.E.L.A."). A jury returned a verdict in favor of plaintiff for the value of his past and future lost wages, pain and suffering and for his disability. Defendant appealed, arguing that the trial court erred in failing to instruct the jury on plaintiff's duty to mitigate his damages by resuming gainful employment as soon as such could reasonably be done.

The appellate court reversed the trial court, holding that an employee does have a duty to mitigate damages by returning to gainful employment as soon as reasonably possible. Furthermore, a party is entitled to an instruction based on its theory of the case if there is record evidence to support it. The court found the question to be, then, whether there was record evidence to support the defendant's allegation that plaintiff had failed to make a reasonable effort to mitigate his damages. The appellate court found that there was sufficient evidence to raise a factual question for the jury concerning plaintiff's alleged failure to mitigate from which a jury might reasonably conclude that plaintiff was indifferent to finding alternative employment. That evidence was that plaintiff refused to cooperate with the defendant's efforts to place him in another position within the company, plaintiff refused defendant's plans to provide him with free rehabilitation and counseling services, and plaintiff refused defendant's offers to fund vocational or scholastic training calculated to assist him in obtaining alternative employment.

The evidence further showed that one of plaintiff's physicians advised him that he could return to work and that his injury was not serious or chronic. All medical tests consistently indicated that there was nothing objectively wrong with plaintiff. A physician certified in rehabilitation examined plaintiff and testified that plaintiff's injury precluded any employment involving lifting, standing or walking. He concluded that plaintiff's physical limitations could be permanent in nature, but also admitted that plaintiff might fully recover. A psychiatrist testified that he advised plaintiff to pursue the employment and rehabilitation opportunities offered by defendant. A vocational rehabilitation counselor testified that, considering plaintiff's physical limitations, plaintiff could hold a job with a salary ranging from $10,400 to $18,000.

We find that Brown accurately concluded that under applicable Federal cases an employee has a duty to mitigate his damages by returning to employment as soon as reasonably possible. (Brown, 162 Ill.App.3d at 932, 114 Ill.Dec. at 170, 516 N.E.2d at 325.) However, we also find that there was not sufficient evidence in the record to warrant the giving of the mitigation instruction in this case. We therefore affirm the trial court's refusal to submit the tendered instruction to the jury.

Before setting out the relevant evidence adduced at trial, we point out that the burden of proving plaintiff's failure to mitigate damages is on the defendant. (Brown, 162 Ill.App.3d at 935, 114 Ill.Dec. at 172, 516 N.E.2d at 327.) The evidence adduced at trial on this point is as follows. Plaintiff testified that he completed the tenth year of formal schooling, but received mostly "D" grades and some "C" grades. He dropped out of school and found employment at a cafeteria. He then enlisted in the navy, where he served as an aircraft mechanic. While in the navy, plaintiff received his "GED". Plaintiff served in the navy four and a half years and received an honorable discharge. He then became employed at McDonnell-Douglas "Douglas in St. Louis as an air frame mechanic. Plaintiff left that job in less than a year because he did not feel competent to perform it. In 1966, plaintiff went to work for a railroad as a switchman. He worked for a railroad as a switchman and conductor until his accident. As a conductor, plaintiff was in a supervisory position over the other train crew members.

Following his accident, plaintiff continued to suffer pain in his back. He treated with a chiropractor who referred him to Dr. Shoedinger. Dr. Shoedinger attempted to treat plaintiff's injury conservatively. The pain was lessened somewhat, but remained severe. Plaintiff had surgery on his back in November 1985. This surgery did not help plaintiff at all. His right heel and right buttock were numb from nerve damage. The numbness in the heel eventually went away, but his right buttock remains numb. Thereafter, plaintiff received ultrasound treatment two times a week, which helped but did not completely alleviate the pain.

Plaintiff also sought treatment from Dr. Chen, a specialist in pain management. Plaintiff received several nerve blocks, which helped control the pain only temporarily.

Plaintiff described his condition at the time of trial. He testified that his lower back feels as if it is completely "wore out" and his tailbone feels like "bone against bone". Plaintiff described his pain as unbearable at times. He must lie down at least once a day with a heating pad for 30 to 40 minutes. He is unable to sit or stand in one place for long, and suffers cramps if he walks too much. He has suffered pain since the accident. Plaintiff is unable to lift anything. When he sits in a chair it must have arms which he uses to lift his weight with his elbows. If plaintiff...