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12/06/89 Edgar L. Amos, Jr., v. Norfolk and Western

December 6, 1989

EDGAR L. AMOS, JR., PLAINTIFF-APPELLEE

v.

NORFOLK AND WESTERN RAILWAY COMPANY, DEFENDANT-APPELLANT

AT TRIAL, DEFENDANT TENDERED TWO ALTERNATE JURY INSTRUCTIONS ON PLAINTIFF'S DUTY TO MITIGATE HIS DAMAGES. THE FIRST, BASED ON BROWN

v.

CHICAGO & NORTH WESTERN TRANSPORTATION CO. (1987), 162 ILL. APP. 3D 926, 516 N.E.2D 320, READS AS FOLLOWS:

THE SECOND JURY INSTRUCTION IS BASED ON BAKER

v.

BALTIMORE & OHIO R.R. CO. (6TH CIR. 1974), 502 F.2D 638, AND READS AS FOLLOWS:



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, 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 4 1/2 years and received an honorable discharge. He then became employed at McDonnell-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.

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

548 N.E.2d 96, 191 Ill. App. 3d 637, 138 Ill. Dec. 866 1989.IL.1891

Appeal from the Circuit Court of Madison County; the Hon. Paul Riley, Judge, presiding.

APPELLATE Judges:

JUSTICE WELCH delivered the opinion of the court. GOLDENHERSH and RARICK, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

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.

"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 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 & North Western Transportation Co. (1987), 162 Ill. App. 3d 926, 516 N.E.2d 320, until the Illinois ...


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