In his motion, the plaintiff bases his argument in the main upon the contention that the Court erroneously arrived at its award because the Court failed to properly compute plaintiff's loss of earnings and loss of earning power in the future.
Specifically, the plaintiff argues that the Court found that the plaintiff was 35% Disabled but that the Court did not take into consideration the fact that such disability caused the plaintiff to be completely prevented from doing the heavy work which was required in his last job and to which he had been accustomed in previous times. The difficulty with this argument of the plaintiff is that it ignores the entire evidence as fully presented.
In reaching its final conclusion, the Court considered all the various elements of damages established by the evidence and occasioned the plaintiff by the injury in question which also caused him impairment or reduction of earning power in the future.
In making its evaluation the Court considered the age of the plaintiff, the nature of his employment, his past application to his employment, his aptitude towards his work, the regularity of his employment, his ability to do different types of work, the nature of his impairment or incapacity to do work, his education, skill and experience and other similar factors. The Court also considered the plaintiff's testimony and his bearing and appearance on the stand.
After hearing the testimony as presented, the Court accepted plaintiff's evidence as to medical expenses incurred and loss of past earnings from the date of the accident until trial. However, while the Court decided that the plaintiff was entitled to compensation for loss of earning power, it could not accept, on the basis of the evidence, the plaintiff's contention that his loss of earning power amounted to the equivalent of a computation of what plaintiff's earning power could have been had he remained with the railroad until his normal retirement date.
The evidence further established that the plaintiff had been in and out of work for a number of years in the past. It was indicated that his reason for intermittent employment might have been due to a previous physical deficiency which the plaintiff suffered during the past number of years. There were, however, other indications that his loss of work was due to circumstantial factors. In any event, it is clear that the plaintiff had a previous back condition since 1947. In 1948, a Dr. Clements was treating him and gave him a certificate for angina pectoris and a back condition. At the time he received a letter so that he could get a disability pension. He worked variously for the railroad and as a scrap collector. He had a light job with the railroad from 1947 to 1949. He was unemployed from 1949 to 1952. He worked in the Sheriff's office from 1952 to sometime in 1953 or 1954 at which time he was on leave of absence from the railroad.
In making its determination for the future loss of earning power, the, Court considered not only the immediate working status of the plaintiff, but also his past history and the other factors revealed by thr plaintiff on the stand. The Court then approximated a figure on this case and arrived at an amount which was reduced to present worth and which in the opinion of the Court, as the trier of facts in the case, fairly and adequately awarded the plaintiff a fair, reasonable and just amount for his loss of future earning power.
The Court further took all the previously mentioned factors into consideration in making a determination for pain and suffering which it deemed reasonable and fair under the circumstances. Since the plaintiff was adjudged to be 50% Contributorily negligent in this case, the Court reduced its award by 50%. It was in this manner that the final award was calculated. After reviewing its notes and all papers filed, the Court is still convinced that its reasoning in this case was proper. Therefore, the plaintiff's motion to amend the findings of fact and judgment and his motion for a new trial as to damages is denied.
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