*2
JONES,
Before MERRITT and
Circuit
BROWN,
Judges, and BAILEY
Senior Cir-
Judge.
cuit
JONES,
NATHANIEL R.
Judge.
Circuit
This action
brought by
Paul Leonard
against
Jones
Consolidated Rail Corpora-
(Conrail)
tion
under the Federal Employers’
Liability
(FELA),
Act
45 U.S.C. 51 et seq.
§
(1982). Jones appeals
en-
tered
favor,
on a
verdict
his
arguing
that the district
in instructing
court erred
the jury mitigation
and con-
tributory negligence, that
the award of
damages was inadequate
against
weight
evidence,
and that the district
court erred in denying him a directed ver-
dict on the issue of contributory negli-
gence. Because we find reversible error in
instructions, we reverse.
July 1, 1980,
On
Paul Leonard Jones was
employed by
Conrail
its maintenance de-
“trackman,”
partment as a
position
involves heavy
in repairing
labor
train
tracks.
being transported
After
from one
another,
job site to
allegedly
his back seriously
slipped
when
and fell
as he exited
company’s
bus. Although
treating
his
physician wrote in 1982 that
Jones could return to his former employ-
ment, the company physician determined
that Jones should not return to the heavy
trackman,
company
hospital
and the
did tial
treatment and
labor
some subse-
reemploy
position.
treatments,
him in
quent
which indicated that
time. He
worked since that
no
injury
there was
serious
to Jones’ back.
Conrail,
brought
against
alleging
suit
questioned
surgeon
Conrail
about his
disabling
back
notes,
stated
disability
which
that the state
*3
negligence
supervisor
who al-
Conrail
repeatedly
ap-
bureau had
asked
to
Jones
pieces
some
lowed
rail
metal
pear
evaluation
anchors—
for an
of skills and rehabili-
long
placed
or six
be
five
inches
about
tation,
surgeon
—to
that the
strongly
and
had
steps
the
to
transportation
on
bus
for
the
attend,
urged
to
Jones
but that
had
Jones
repair site.
next
he
refused because
did “not
to be
want
trial,
company’s
bothered.” The
who
physician
presented
At
Jones
evidence that
supervisor
had recommended that
directed that
anchors be
Jones not resume
the
the
bus,
on
placed
landing
steps
heavy
on the
of the
labor
the tracks
and
also testified.
exit,
the
there was no handrail
and He
belief
that
at
stated his
while
could
Jones
by
labor,
the side door was
a cart.
perform heavy
light-
that
blocked
not
he could do
argued
supervisor
that
knew or
He
the
sedentary
er
driving
or more
work such as
dangers
have
of such
should
known
being
janitor.
a bus
a
or
Jones testified
equipment
circumstances and that the
on
applied anywhere
job.
that he
not
a
had
for
steps
slip
caused
and
Jones to
fall
general
returned a
jury
The
verdict
through no fault of his own.
$168,736 favor
in
of Jones.
presented
Conrail
that
there
evidence
appeal Jones
On
contends that the
no room
in
was
for the anchors
the usual
district
erred in its
court
instructions
equipment,
for
employees
box
that
jury mitigation
damages.
on
We review
being
all aware
were
were
that the anchors
jury
as
instructions
a whole to determine
transported on the
steps,
bus
cart
they adequately
jury
whether
inform the
easily
in front of the other door was
provide
relevant considerations and
a
moved, that there was sufficient room to
aiding
jury
reaching
basis in
for
law
anchors,
around the
walk
that there was a
its decision. Blackwell v. Sun Electric
it,
handrail and Jones failed
use
that
(6th Cir.1983).
F.2d
Corp., 696
1181
carrying
fork
Jones
a ballast
as he
A
on
a
verdict
vacat
exited,
be
watching
and that
steps
he was
instructions,
ed when the
viewed as a
he
presumably
as
descended and thus
whole,
confusing, misleading,
were
and
equip-
should have seen and avoided the
Anderson,
prejudicial.
Corp.
DSG
754
ment.
Cir.1985).
F.2d
679
It is
error
regard
alleged
In
that
give
requested
to refuse to
a
instruction
completely
he was
any
unable to work at
correctly
law,
long
that
states the
as
as
type
employment.
presented
He
actually given fairly
instructions
ade
and
opinion
surgeon,
of his
who testified that
quately cover the material issues. Carru
the accident caused Jones’ back
and
Casualty
ba v. Transit
443 F.2d
surgery
required
performed.
and
(6th Cir.1971).
error, however,
It is
physician
The
testified that Jones was dis-
jury on
instruct the
an issue when there
labor,
heavy
from performing
abled
presented
been insufficient evidence
that, considering
I.Q.,
extremely
Jones’
low
support
finding on
that issue. Dix
perform
he could not
any other kind of
Central
F.2d
v. Penn
physician
The
explained
work.
that when
(6th Cir.1973);
Bucyrus-Erie
see also
Co.
had
written to Conrail
could
Corp.,
Products
v. General
work,
period
return
he had
a trial
meant
(6th Cir.1981).
to determine if Jones could handle the
work.
The
on the
miti-
court’s
issue of
rebuttal,
gation
past
testimony
Conrail elicited
re-
loss of
garding
hospital
from
earnings
records
the ini-
aswas
follows:
respect
earnings
With
to the loss
We
that the defendant did
have the
past, you
plain-
are instructed
if
burden of
concerning plain
tiff’s failure to
past
damages.
tiff could have worked in the
but did
determining damages
manner of
not,
in an
you
him
ac
must not award
tion under the FELA must be settled ac
earnings
loss
of whatever
for the
cording
general principles
of law as ad
during
period
of time
which he
ministered in the federal courts. See Ches
respect
have worked. The issue
apeake
Ry.
& Ohio
Kelly,
Co. v.
241 U.S.
plaintiff
did
whether
work but
485, 491,
630, 632,
36 S.Ct.
594
Cir.1983);
only by
plaintiff
El
Ballard v. Dorado
amount the
could earn
Cir.1975)
Co.,
job,
in new
mitigation
Tire
the instructions on
(burden
employer
past
demon-
earnings
loss of
available).
employment
adequately explain
similar
did not
the law on
strate
quoted
As
supra,
issue.
the instructions
cases,
considering such
we are
“you
stated
must not award him dam-
light
pur
of the remedial
mindful
ages
earnings
for loss of whatever
for the
FELA,
liberally
pose
we must
con
period
during
might
of time
which he
have
injured plain
favor of the
strue the Act in
earnings”
“Whatever
worked.”
could re-
Green v. River Terminal
e.g.,
tiff.
previous
as
just
easily
fer
to his
railroad
(6th Cir.1985);
Co.,
Ry.
763 F.2d
job’s wages
potential
job’s
as to his
new
Chesapeake
Ry.
Sowards v.
& Ohio
Therefore,
wages.
did not ade-
(4th Cir.1978).
Conse
quately inform
plaintiff
that the
reason,
no
quently, we see
and defendant
was entitled to the difference between
reason, to
presented
with no
create
us
he would
what
have earned on the railroad
general
exception
in FELA
an
to the
cases
and what
have earned in another
rule that the
has the
defendant
burden
position.
Because this
have affected
proving
plaintiff could, with
rea
the award
it is also reversible
effort,
mitigated
damages.
sonable
have
error.
Chicago, Rock Island and
R.R.
Cf.
Co. v. Powers Foundation
Pacific
Drilling
assignment
Jones’ next
of error
(W.D.Okla.1968) (de
F.Supp.
*5
the
failing
is that
district court erred in
prov
fendant in FELA case has
burden
a verdict
of contributory
direct
on the issue
ing plaintiff contributorily negligent).
negligence.
determining
In
whether the
refusing
court
district
erred in
to direct a
jury
place
instructions failed
verdict, we must view the evidence in the
this
proof
burden of
on the defendant. At
light
party
most favorable
the
opposing
beginning
jury
instructions the
the motion. Steele v. Louisville & Nash
court
proof
stated that
burden of
is on
ville R.R.
Cir.
party
“the
who asserts the affirmative of
1974). Viewing the
in
evidence
favor of
However,
jury
an issue.”
in
neither the
Conrail, we
jury
conclude that a reasonable
questioning during
structions nor the
trial
could have believed that Jones’ acts con
made it
asserting
clear who was
“the af
injury,
to causing
tributed
and’ we
respect
plaintiffs ability
firmative” with
therefore find that the district court did not
Indeed,
mitigate damages.
given this
refusing
err in
to direct
verdict.
appeal,
parties obviously
did
even
asserting
about who was
“the af
challenges
jury
also
in
issue,
firmative” of that
and
it
so
seems
contributory
negligence,
structions
as
unlikely
unguided jury
able to
was
serting
contributory
the instruction on
perceive
placement
the correct
bur
negligence
an
amounted to
instruction on
proof.
den of
may
Because this
have af
risk,
assumption
a defense that
damages award,
fected the
the district
in
be raised
an FELA
case.
U.S.C. 54§
court’s failure to instruct on the burden of
(expressly prohibiting the defense that the
proof
is reversible error.
e.g., Castillo
risk);
employee assumed the
Tiller v. At
Givens,
Cir.) (bur
v.
lantic Coast Line R.R.
318 U.S.
den
always
of major importance),
444, 446,
(1943).
S.Ct.
trict grant grounds a new trial on great against weight
the verdict
the evidence.
We therefore REVERSE the
of the district court and REMAND this proceedings with
case consistent opinion. NATIONAL LABOR RELATIONS BOARD, Petitioner, BROWN, Judge, BAILEY Senior Circuit concurring in the result. SPRING, Spring EDGAR INC. d/b/a states, panel’s opinion As the the district Asphalt Industries and Tri-State not, spite exception court did Jones’s Corporation, Respondent.
thereto, to the in its make clear that the burden on the defendant to 85-5858, Nos. 85-5938. mitigate show that failed to his dam- United States Appeals, Court of ages. say, That is to it did not make clear Sixth Circuit. that the burden was on the defendant to prior show after his to the Argued June 1986. trial, Jones was able to do some work and Sept. Decided 1986. did not make a reasonable effort to find Although, and do such pan- work. as the opinion recognizes,
el’s our court has held duty
that Jones had the
damages, Baker v. Baltimore & Ohio
R.R., (6th Cir.1974),
opinion correctly holds that the burden was
on the defendant to show that Jones had duty. panel’s fulfilled that While the
opinion does not FELA cite an case that so (and one),
holds I have not been able to find
I with the conclusion that the law
analogous supports placing situations burden, moreover, panel’s as the out,
opinion points liberally FELA
construed in favor of the railroad
employee. completeness,
For I am of the view that (and panel’s district court’s
opinion) sufficiently does not make a clear separate
distinction between items of dam- i.e., (a)
age resulting from injury, loss
of income incurred after the accident and
prior (b) damage to the trial and as a result earning decrease which will panel’s opinion,
reduce future income. The it,
as I understand and this concurrence are
granting a only new trial on the basis of an