Trejo v. Denver & R. G. R. Co.

• Citation: 568 F.2d 181
• Decision Date: 27 December 1977
• Docket Number: No. 76-1654,76-1654
• Parties: Tomas R. TREJO, Plaintiff-Appellee, v. The DENVER & RIO GRANDE WESTERN RAILROAD COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 181

568 F.2d 181

Tomas R. TREJO, Plaintiff-Appellee, v. The DENVER & RIO GRANDE WESTERN RAILROAD COMPANY, Defendant-Appellant.

No. 76-1654.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Nov. 15, 1977.

Decided Dec. 27, 1977.

Richard I. Ashton, Salt Lake City, Utah (Orrin G. Hatch and Hatch & Plumb, Salt Lake City, Utah, on the brief), for plaintiff-appellee.

Kenneth W. Yeates, Salt Lake City, Utah (Van Cott, Bagley, Cornwall & McCarthy, Gerald R. Miller and Russell J. Gallian, Salt Lake City, Utah, on the briefs), for defendant-appellant.

Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.

BREITENSTEIN, Circuit Judge.

In this action under the Federal Employers' Liability Act, FELA, 45 U.S.C. § 51 et seq., judgment was entered on a jury verdict for the plaintiff in the amount of $140,000. We reverse for trial errors.

Defendant-appellant Denver & Rio Grande Western Railroad Company, an interstate common carrier, employed plaintiff-appellee Trejo as a section laborer on a work train in Utah. In late March or early April 1974, he was unloading creosote-soaked ties from a slowly moving gondola car. The bottom of the car was slippery with creosote which had dripped out of the ties. Plaintiff slipped and fell. No witness was able to pinpoint the exact day of the occurrence. Plaintiff reported the mishap to his superior and continued working. No formal accident report was made to the Company.

Although he complained of pain and fatigue, plaintiff kept on working until sometime in September, 1974, when he quit voluntarily. The medical testimony was contradictory. Doctors for the plaintiff testified that he had cervical and lumbar disc disorders; that two operations, one on the neck and one on the lower back, were required and that he was 40% To 60% Disabled. The substance of the testimony of two doctors for the Company was that plaintiff was a malingerer.

After leaving his job as a section laborer, plaintiff sought light work from the Company and from his union but did not obtain any. A qualified witness for the plaintiff projected his potential earnings through age 70 and placed the value thereof on the date of the accident at $161,651.

The court, over the Company's objections, instructed the jurors that if they found plaintiff was entitled to a verdict, then in arriving at the amount of an award they "should include * * * the reasonable value, not exceeding the actual cost to the plaintiff" of medical and hospital treatment incurred because of the injuries "or reasonably certain to be incurred in the future."

The following colloquy occurred out of the presence of the jury and before the court gave its instructions to the jury:

THE COURT: I want to know whether you folks will stipulate to what my law clerk tells me is a fact. I haven't examined the file. Number one, the amount of damages prayed for are general, $250,000; loss of wages and impairment of income, $161,651.53. No special damages specified. Of course the amount of costs are not established yet. What about the specials?

MR. HATCH (attorney for plaintiff): Your Honor, he is going to need two operations but we introduced no testimony.

THE COURT: He has already had doctor bills.

MR. HATCH: Those bills were paid by the Company and we think those bills should normally come in but we didn't want to test it in this particular case.

THE COURT: All right.

MR. HATCH: However, we think that there is a natural inference from the

THE COURT: Well, I am not interested in that * * *."

The FELA provides, 45 U.S.C. § 53, that contributory negligence of an injured employee shall not bar recovery, "but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." The Company pleaded contributory negligence as a defense. The court instructed the jury on both contributory negligence and comparative negligence.

With general regard to the instructions, it should be noted that Judge Ritter, who presided over the trial, did not comply with Rule 51, F.R.Civ.P. and with our decisions applying that rule. See e. g. Dunn v. St. Louis-San Francisco Railway Company, 10 Cir., 370 F.2d 681, 683-684. Counsel for each party submitted written requests for instructions. The record contains no indication that the judge informed the parties of his proposed action on the requests before charging the jury, as required by Rule 51. Although counsel for each party requested special verdicts, the case was submitted to the jury on a general verdict. As returned by the jury that verdict read:

"We, the jury, find in favor of the plaintiff and against the defendant.

We, the jury, further find and fix plaintiff's damages in the sum of $140,000 as general, special and compensatory damages."

The record contains no evidence of any special damages. Plaintiff's counsel conceded that the Company had paid the plaintiff's medical expenses incurred and said he was not seeking recovery for those expenses.

In spite of the evidentiary failure and explicit waiver, the court told the jury that in arriving at an award for the plaintiff it should include the actual cost to plaintiff for medical and hospital treatment. It is elementary that the evidence introduced must warrant the giving of an instruction. Smith v. Mill Creek Court, Inc., 10 Cir., 457 F.2d 589, 592. Moreover, plaintiff's counsel's waiver of any claim for those bills bars recovery thereon. See Wantland v. Illinois Central Railroad Company, 7 Cir., 237 F.2d 921, 926, a FELA case.

To support the instruction and the verdict, plaintiff argues that the court told the jury that its award must be based on the evidence presented; that there was no evidence of pre-trial medical expenses incurred by the plaintiff, and that it must be presumed that the award was not based on such medical expenses. We are not convinced. The jurors might well have concluded that medical expense is an inevitable cost of an injury and have drawn a reasonable inference that an award could include an estimate of such expense. The general verdict does not disclose whether they did so. In the circumstances, the instruction on special damages was wrong.

As to future medical expense, the evidence was that plaintiff would require two operations but it did not disclose the cost or probable result of those operations. The Company argues that the statement of defense counsel quoted above was a waiver of damages for future medical expense. We are in doubt. The trial court cut off counsel's statement. Because we are remanding for trial on damages, we decline to consider the point. In further proceedings the plaintiff should make his position clear and due regard should be had for the principle of reasonable certainty of future damages. See e. g., Whiteis v. Yamaha International Corporation, 10 Cir., 531 F.2d 968, 972, cert. denied 429 U.S. 858, 97 S.Ct. 157, 50 L.Ed.2d 135, and Blim v. Newbury Industries, Inc., 10 Cir., 443 F.2d 1126, 1129.

The court refused to give the Company's requested instruction that plaintiff was required to mitigate his damages by exercising reasonable efforts to find other employment. Normally, in a FELA action a plaintiff is entitled to recover the difference between what he was able to earn before injury and what he earned or could have earned thereafter. See Taylor v. Denver & Rio Grande Western Railroad Co., 10 Cir., 438 F.2d 351, 354, and Baker v. Baltimore & Ohio Railroad Company, 6 Cir., 502 F.2d 638, 644.

Plaintiff argues that because of his age, language difficulties, education, and physical condition, he was unemployable as a matter of law. The record shows that his only efforts to secure employment were to ask the Company if light work was available for him and to ask his union for light work. The Company's refusal of light work did not estop it from raising the question of mitigation. A party is entitled to an instruction based on his theory of the case if there is record evidence to support it. See Lopez v. Southern Pacific Co., 10 Cir., 499 F.2d 767, 772, and General Motors Corp. v. Walden, 10 Cir., 406 F.2d 606,...