there was no mention of management's decision to keep the terminal open until November, 1965. We did charge the jury generally on the subject of damages, and stated that the testimony of the plaintiff's witness was uncontradicted except insofar as there was cross-examination by the defendant. We further stated that the plaintiff was entitled to damages "reasonably incurred as a result of a strike or work stoppage." (N.T. 458) Following our charge, we permitted the defendant to make a number of objections to our charge. (N.T. 460-4), and he failed to make any mention of, or exception to, our charge on damages. The hour is rather late to now raise the mitigation issue.
In any event, it would not have been proper for us to charge specifically on the issue of mitigation because there was no evidence to support such a charge. The party who commits a wrong has the burden of establishing matters asserted by him in mitigation or reduction of damages. See Watsontown Brick Co. v. Hercules Powder Co., 265 F. Supp. 268, 275 (M.D. Pa.1967), affd. 3 Cir., 387 F.2d 99; 11 Pennsylvania Law Encyclopedia, Damages §§ 22, 131. The only testimony concerning damages was that presented by the plaintiff's witness, the comptroller of Roadway. The defense did cross-examine this witness extensively concerning the items of damages he presented, but it did not adduce any evidence at all to show how the plaintiff might have reduced damages, or what the cost of any such mitigation would have been. Given this state of the evidence, we could not have gone further then we did in saying that the plaintiff was only entitled to damages "reasonably incurred as a result of the strike or work stoppage." Because there was no evidence as to the cost or feasibility of any alternative course which might have been open to Roadway management to mitigate damages, for us to have gone further and charged on mitigation would have been improper since the jury could only have assessed the possibility of such an alternative course by speculation or conjecture.
The defendant's final objection is that the damages awarded by the jury were excessive and speculative. It is difficult to ascertain whether his objection is to the admission of testimony, to our charge, or to the verdict.
Regardless of how the objection is couched, it must be rejected because the verdict was not excessive, nor do we think that it was based upon "conjecture; uncertain estimates, or mere conclusions."
We have reviewed the evidence presented by the plaintiff on damages and we consider it sufficient to afford a reasonable basis for the jury to ascertain damages under the circumstances. Mr. Crawford, Roadway's comptroller, testified fully (N.T. 189-247) regarding the accounting method by which he computed damages, most of which were expenses actually incurred by Roadway to maintain its equipment and terminals. The system by which Mr. Crawford allocated these expenses between Roadway's Philadelphia terminal and its other terminals was fully explained and it was the jury's province to determine which items were reasonable and which were not. Although the resulting verdict was relatively large in amount, we thought that it was entirely fair and reasonable under the circumstances.
Because of the magnitude of the verdict we will consider individually the contentions of the defendant regarding the assessment of damages. The first contention is that:
"An examination of the method used in computing lost profits shows that the figures for item of loss are entirely speculative. The company establishes a revenue quota (an estimate). Gross revenue is obtained by applying a percentage of 95% to the revenue quota (The percentage applied is an estimate). From the gross revenue for the Phila.-Wilmington terminals, there is deducted the increased revenues at surrounding terminals. To this figure a profit ratio (an estimate based on entire volume of business) is applied. N.T. 235 to 237. It is obvious that estimates are used at each stage of the computation.