Hawkes v. Norfolk & Western Railway Co.

876 S.W.2d 705, 1994 Mo. App. LEXIS 527, 1994 WL 97772
CourtMissouri Court of Appeals
DecidedMarch 29, 1994
DocketNo. 62926
StatusPublished
Cited by9 cases

This text of 876 S.W.2d 705 (Hawkes v. Norfolk & Western Railway Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hawkes v. Norfolk & Western Railway Co., 876 S.W.2d 705, 1994 Mo. App. LEXIS 527, 1994 WL 97772 (Mo. Ct. App. 1994).

Opinion

CRANE, Presiding Judge.

Plaintiff George Hawkes filed an action against his employer, defendant Norfolk & Western Railway under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., for damages as a result of injuries suffered in a fall. After a trial the jury found damages in the amount of $150,500 and assessed 25% fault against plaintiff. On appeal plaintiff asserts the trial court erred in submitting a mitigation of damages instruction. We affirm.

Plaintiff was employed by defendant from 1969 until December, 1988. On December 9, 1988 plaintiff, while working as a brakeman, tripped over a wire in a ditch along defendant’s tracks and injured his knee. The injury required surgery in October, 1989 and arthroscopic surgery in November, 1990.

In 1988, his last year in defendant’s employ, plaintiff earned approximately $45,000, working a sixty to seventy hour week at approximately $15 per hour. After the accident, plaintiff did not return to work with defendant. He did not work from the date of the accident until November 13, 1990 when he was hired as city clerk of Moline Acres, Missouri, earning $16,500 a year. By the time of trial he was earning approximately $20,500 in this position.

At trial plaintiff sought damages for past lost wages, future lost wages, the knee injury, and pain and suffering. The jury found plaintiff was damaged in the amount of $150,-500 and assessed 25% fault to plaintiff and 75% fault to defendant.

On appeal plaintiff claims the trial court erred in giving a mitigation of damages instruction. He challenges both the sufficiency of the evidence to support the instruction and the failure of the instruction to instruct on burden of proof.

I.

We first address plaintiffs contention that the trial court erred in giving a mitigation of damages instruction because there was insufficient evidence to support the instruction. We find there was substantial evidence to support a mitigation instruction.1

As a preliminary matter, we note that neither party challenges the propriety of a mitigation instruction in an appropriate FELA case. Although there is no MAI FELA mitigation instruction, FELA cases adjudicated in state courts are governed by federal substantive law. St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 1348, 84 L.Ed.2d 303, 306 (1985). Accordingly, the propriety of jury instructions concerning the measure of damages in a FELA action is an issue determined by federal law. Id. Because mitigation affects the measure of damages, federal law also controls whether a mitigation instruction should be given. See, Holley v. Missouri Pacific R. Co., 867 S.W.2d 610, 614-15 (Mo.App.1993).

Under federal law an employee has a duty to mitigate damages by returning to gainful employment as soon as reasonably possible. Brown v. Chicago & North Western Transp. Co., 162 Ill.App.3d 926, 114 Ill. Dec. 165, 170, 516 N.E.2d 320, 325 (1987), citing Taylor v. Denver & Rio Grande Western R. Co., 438 F.2d 351, 354 (10th Cir.1971). If there is evidence to support a failure to mitigate damages, the party asserting this position is entitled to an instruction on mitigation. Wilson v. Consolidated Rail Corp., 875 S.W.2d 178 (Mo.App.E.D., March 22, 1994), citing Trejo v. Denver & Rio Grande [707]*707Western R. Co., 568 F.2d 181, 184 (10th Cir.1977).

The submission of an instruction will be upheld if supported by any substantial evidence. Jordan v. Abernathy, 845 S.W.2d 86, 89 (Mo.App.1993); Oldaker v. Peters, 817 S.W.2d 245, 251-52 (Mo. banc 1991). Substantial evidence is that evidence which, if true, is probative of the issues and from which the jury can reasonably decide the case. Elfrink v. Burlington Northern R. Co., 845 S.W.2d 607, 611 (Mo.App.1992). In reviewing the submission of an instruction, we view the evidence and the inferences therefrom in the light most favorable to submission of the instruction and disregard all evidence that does not support the instruction. Id.

Plaintiff argues he undertook reasonable and timely efforts to obtain alternate employment. He points to evidence that he forwarded 125-150 resumes to prospective employers before obtaining the city clerk position which he held at trial, that he sought vocational counseling with Dr. Samuel Bernstein who encouraged him to hold onto his present job, and that he refused offers of reemployment with defendant in clerical or other positions because he was concerned about layoffs, loss of seniority, probationary employment, and relocation. Plaintiff further argues that there was no evidence that other employment was available or that plaintiff could have obtained other employment within any particular period of time.

However, there was substantial evidence from which the jury could conclude that plaintiff did not make a reasonable effort to obtain gainful employment. Plaintiff, who was forty years old at the time of trial, had nineteen years' of railroad experience as a brakeman and switchman, some management experience, and was highly educated. He had a bachelor’s degree and a master’s degree in business administration. He had worked for two retail stores in management positions and for a scheduling company as a management consultant. In addition, prior to the accident, defendant had given plaintiff nine to twelve months of training in a management position before plaintiff decided he did not want to be a management employee and returned to his switchman position. Plaintiff also had prior experience as an insurance salesman.

After plaintiffs surgery in 1990, defendant provided plaintiff the assistance of a rehabilitation nurse. Initially, plaintiff would not respond to the nurse’s attempts to contact him. When he did talk to her, he would not give her permission to confer with his physician about his knee. She had told him that to assist him, she would have to know what his doctor’s recommendations were. Plaintiff testified that he refused to work with the nurse.

On April 12, 1991, five months after plaintiffs 1990 surgery, defendant wrote to plaintiff to encourage him to make a trial return to work as a brakeman on an evaluated basis at defendant’s training center in McDonough, Georgia. The letter advised plaintiff he would be required to wear a properly fitted knee brace for this trial period. Plaintiff did not respond to this offer until February, 1992.

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876 S.W.2d 705, 1994 Mo. App. LEXIS 527, 1994 WL 97772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawkes-v-norfolk-western-railway-co-moctapp-1994.