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Dalebout v. Union Pacific Railroad Co.5/6/1999
does have seems mostly related to skiing, an activity he has had to quit because of his back injury. The evidence further implied that Dalebout's railroad work could be somewhat physically rigorous. Dr. Bryan opined that Dalebout's disc disease and injury would only worsen in the future, while Dalebout testified that the associated pain has steadily risen over the years.
From this testimony, the jury could have made a variety of broad inferences--which we have noted a jury is free to do under FELA law. For instance, the testimony as to Dalebout's age, lifting restriction, and the variety of constraints on his activities and movements could have led the jury to believe that Dalebout lacks job security--particularly in view of Union Pacific's right to physically examine him and hold him to the physical demands of his job description. See Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958, 971 (5th Cir. 1969). Moreover, nothing in the evidence guarantees that the engineer position or any feasible alternative will be open to Dalebout for the remainder of his work life. See Moore v. Chesapeake & Ohio R.R. Co., 649 F.2d 1004, 1011-12 (4th Cir. 1981). Because Dalebout had not finished college and had done fairly physical work during virtually his whole career, the jury could have determined "that available occupational alternatives for [Dalebout] were not numerous and that his injury had . . . impaired his future earning potential" if he needed to look for other work. Sanford Bros., 412 F.2d at 972. Further, based on Dalebout's testimony about his increasing pain and discomfort on the job, the jury could have inferred that Dalebout "would no longer be able to continue working as a[n engineer] or that he might choose to seek an easier and less painful job" paying him less. Belt, 1997 Neb. App. LEXIS 110, at *36; see also Robison v. Atchison, Topeka & Santa Fe Ry. Co., 27 Cal. Rptr. 260, 264 (Cal. Ct. App. 1962) ("In view of the plaintiff's age and the evidence as to the discomfort involved in the performance of his duties and as to his impaired agility, the trier of fact could properly find that he was reasonably certain to suffer a loss of future earnings . . . .").
Even so, Union Pacific counters that since the injury Dalebout has not missed work except for the first ten days, has not missed a paycheck, and has even had raises. Union Pacific reminds us that Dalebout has not hinted that he might leave the railroad for any reason. It is true at the time of trial Dalebout was still an engineer for Union Pacific, but this does not keep him from being dismissed or laid off in the future. See Wiles v. New York, Chicago & St. Louis R.R. Co., 283 F.2d 328, 332 (3d Cir. 1960). As the Third Circuit has noted,
"Because of his present employment [Dalebout] has not yet suffered economic loss but if he cannot obtain gainful employment elsewhere he is chained to his present job in a kind of economic servitude. We cannot think that it was the intention of Congress in enacting [FELA] to effect such a result." Id.; see also Gorniak, 889 F.2d at 484 (stating even if injured plaintiff was assured of keeping his job permanently, plaintiff could still recover as he has no duty to stay with current railroad employer); Moore, 649 F.2d at 1012 (declaring plaintiff "was under no obligation to keep her current position . . . for the rest of her life"); Belt, 1997 Neb. App. LEXIS 110, at *35-36 ("The likelihood that the injured worker 's employment with the railroad will or will not continue should, as are all factual matters, be left for the jury to decide . . . .").
Union Pacific's contentions are not entirely without merit, though:
"The fact that plaintiff remained emplo
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