Blanton v. Union Pacific Railroad

604 P.2d 883, 43 Or. App. 741, 1979 Ore. App. LEXIS 3472

Opinion

THORNTON, J.

In our decision in this case we made an erroneous statement of the applicable law in discussing defendant railroad’s third assignment of error, namely that the trial court erred by instructing the jury not to consider plaintiff’s pension benefits.

While this error does not change the result, we nevertheless deem it advisable to correct it.

Accordingly, the opinion is modified by striking the final paragraph of the opinion and substituting the following new paragraph:

"We do not find the court’s instruction in this regard to be error. In Eichel v. New York Central R. Co., 375 US 253, 84 S Ct 316, 11 L Ed 2d 307 (1963), the court expressly held that in an action under the Federal Employers’ Liability Act it is improper to consider disability payments made to the plaintiff under the Federal Railroad Retirement Act on the question of plaintiff’s motive for not returning to work.”

"Reversed and remanded for a new trial.”

Former opinion modified.