Chicago, Rock Island and Pacific Railroad Co. v. Emery, 15468.

• Decision Date: 08 June 1956
• Docket Number: No. 15468.,15468.
• Citation: 233 F.2d 848
• Parties: CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant, v. William R. EMERY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

233 F.2d 848 (1956)

CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant, v. William R. EMERY, Appellee.

No. 15468.

United States Court of Appeals Eighth Circuit.

June 8, 1956.

A. B. Howland, Des Moines, Iowa (B. A. Webster, Jr., Des Moines, Iowa, on the brief), for appellant.

Charles T. Hvass, Jr., Minneapolis, Minn. (Hvass, Weisman, Peterson, King & Schwappach, Minneapolis, Minn., on the brief), for appellee.

Before SANBORN, WOODROUGH and VOGEL, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a judgment for the plaintiff (appellee) entered upon the verdict of a jury in a personal injury action. Liability was admitted by the defendant (appellant), and the only issue in the case was the amount of damages attributable to the accident, the derailment on June 25, 1954, near Lincoln, Nebraska, of a passenger train of the defendant, in which the plaintiff was riding. He was thrown from his seat, suffered injury, and was temporarily hospitalized. He returned to his home in Des Moines, Iowa, shortly thereafter and received medical attention for an injured back and hand. Prior to the accident his employment had consisted of installing furnaces. His claim was that previous injuries suffered by him, and for which the defendant was in no way responsible, had been aggravated by the derailment of the train and had prevented him from resuming his work. His evidence and that of doctors testifying in his behalf tended to sustain his claim. Medical evidence introduced by the defendant tended to show that the nature, extent and effect of the plaintiff's injuries due to the derailment were exaggerated. The defendant asserts that the trial court erred in failing to give a requested instruction relative to the duty of the plaintiff to return to work, to mitigate damages, if he was able to do so.

We quote the following instructions given by the trial court to the jury:

"By `proximate cause,\' as used in connection with damages, is meant the moving or producing cause thereof and without which the damages would not have been sustained.

"The burden is upon the plaintiff William R. Emery to establish by a preponderance of the evidence the amount of damages to which he is entitled.

"It appears that William R. Emery had sustained injuries on occasions prior to the derailment. The defendant is liable for such damages as proximately resulted to William R. Emery by the aggravation of his preexisting physical condition by the derailment and directly attributable to it. The defendant is not liable for any damages William R. Emery did or would have sustained, notwithstanding the derailment, becaue of his preexisting physical condition.

"You will allow the plaintiff William R. Emery the sum of $95.00 for medical expense. You will also allow him the sum of $60.00 for X-ray expense. You will also allow him the fair and reasonable value of such of the following items of damages as he has established by a preponderance of the evidence proximately resulted to him by the derailment of the train:

"(a) past shock, injuries, pain and suffering;

"(b) past loss of earnings;

"(c) reasonably certain future impairment of earning capacity;

"(d) permanent injury to his back;

"(e) reasonably certain future pain and suffering.

"You may not allow him damages for any permanent injury other than for permanent injury to his back. You may not allow him damages for future medical expense. Any awards for future damages must be reduced to their present net worth.

"Some of the items of damages are closely related and you should take care not to overlap any awards you make.

"Your total award of damages to William R. Emery cannot exceed the sum of $50,000.00, the amount asked by him in his complaint."

The defendant had asked the court to give the following instruction:

"You are instructed that in regard to the testimony of the fitness of the plaintiff William Emery for work, that if you find from the evidence that the plaintiff William Emery was able to return to work at some time after June 25, 1954, that it was his duty to do so in order to minimize the damages herein, and that if he was able to return to certain work and failed to do so that he cannot recover for loss of wages for such time as he was able to work and failed to do so."

In denying this request, the court said:

"This is in regard to his duty

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