                                                                          F IL E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                          August 16, 2006
                                 T E N T H C IR C U IT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 B ARRY CH A FFIN ,

               Plaintiff-Appellee,                        No. 04-3313

          v.                                              (D. Kansas)

 U N IO N PA CIFIC RA ILR OA D                        (02-CV-1188-JTM )
 C OM PA N Y ,

               Defendant-Appellant.



                            O R D E R A N D JU D G M E N T *


Before H E N R Y , A N D ER SO N , and O ’B R IE N , Circuit Judges.




      Union Pacific Railroad Company (“Union Pacific”), the former employer of

Barry Chaffin, appeals a jury verdict in favor of M r. Chaffin compensating him

for various damages resulting from a foot injury he sustained while working as a

conductor. Specifically, Union Pacific contends that the district court erred by

admitting certain testimony about M r. Chaffin’s lost future wages claim, by

denying Union Pacific’s M otion for a New Trial and Judgment as a M atter of


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
may be cited under the terms and conditions of 10th Cir. R. 36.3.
Law, and by permitting the jury to consider M r. Chaffin’s lost future wages claim.

Because we hold (1) that the district court did not abuse its discretion by

admitting the testimony; (2) that M r. Chaffin presented sufficient evidence for the

jury to find U nion Pacific’s negligence caused his injury and to support his lost

future wages claim; and (3) that the jury properly considered M r. Chaffin’s lost

future wages claim, we affirm the district court.


                                I. B A C K G R O U N D

      This appeal concerns a lawsuit that M r. Chaffin filed under the Federal

Employers Liability Act (“FELA”) seeking damages for the injuries he sustained

during one of his shifts as a conductor for Union Pacific. In this suit, he alleged

that, as a result of Union Pacific’s negligence, he suffered frostbite, causing him

to stumble and injure his foot. The facts, view ed in the light most favorable to

M r. Chaffin, see Snyder v. City of M oab, 354 F.3d 1179, 1187 (10th Cir. 2003),

are as follows.

      On January 30, 1999, M r. Chaffin reported to work in Dalhart, Texas and

received his assignment to take a train staffed by himself and an engineer, M r.

John Hall, to Amarillo, Texas and drop off 87 freight cars. Another railroad

company, the Burlington Northern and Santa Fe Railroad (“BNSF”) owned and

operated the train yard in Amarillo where M r. Chaffin had been directed to drop

off the 87 freight cars belonging to Union Pacific. A trackage rights agreement

                                          2
permitted Union Pacific to use some of the tracks in the BNSF yard. The

agreement also provided that BNSF w ould be responsible for maintaining the

train-yard tracks, and also for cleaning and maintaining the switches. Further, the

agreement required that Union Pacific and BNSF “shall bear all costs of loss

and/or damage to its sole employees . . . without regard to which party was at

fault.” App. vol. IV, at 508.

      One of the conductor’s duties is to clean the railroad switches in bad

weather while en route. Because of the blizzard conditions in that region of

Texas, M r. Chaffin wore weather-appropriate gear, including company-approved

work boots, a ski mask, thermal underwear, ski pants, and multiple layers. Union

Pacific provided M r. Chaffin with a switch broom so he could perform this duty –

a broom with a chisel on the handle used to break up and dislodge ice and snow.

M r. Chaffin needed to stop the train to clean the switches at several locations on

the way from Dalhart to Amarillo. W hile working on clearing ice and snow from

the switches, he alternated spending fifteen minutes outside and fifteen minutes

inside to stay warm. W hile cleaning one of these switches, M r. Chaffin may have

punctured one of his boots with the switch broom.

      Once the train arrived in Amarillo, W illiam Forsythe, the manager of the

train yard and an employee of Union Pacific, w as to notify BNSF that the train

with the freight cars had arrived so that BNSF cleaning crews could begin to



                                          3
clean the switches, enabling the train to move into the yard. He also was

responsible for ensuring that BNSF had cleaned and cleared all switches.

Because M r. Forsythe had been on a conference call, he failed to notify BN SF

that M r. Chaffin’s train had arrived. He had seen BNSF crews earlier in the day,

but he did not know whether these crews had cleaned the switches that M r.

Chaffin needed to use to deliver the deliver the freight cars.

      Upon arrival in Amarillo, M r. Forsythe instructed M r. Chaffin to break

apart the freight cars forming the train in a manner that was contrary to the work

order M r. Chaffin had received before leaving Dalhart. M r. Chaffin asked to

break up the train differently, since the trip to Amarillo had taken nearly twice as

long as usual due to the w eather, but M r. Forsythe denied this request. To carry

out M r. Forsythe’s instructions to break up the train, M r. Chaffin needed to move

the train along four different tracks and employ a number of switches to move

between the tracks in the train yard. M r. Chaffin testified that M r. Forsythe

ordered him to clean the switches, and that he believed he would be disciplined or

terminated if he did not obey M r. Forsythe’s instructions.

      W hile M r. Chaffin was cleaning the first sw itch, M r. Forsythe drove out to

the tracks and saw him clearing ice and snow off the switch. After this encounter,

M r. Forsythe called for BNSF crews to clean out the sw itches that M r. Chaffin

would need to use in order to comply with M r. Forsythe’s instructions. M r.



                                           4
Forsythe did not tell M r. Chaffin that BNSF crews were on their way. After

cleaning this first sw itch, the train was able to move forward, but M r. Chaffin

soon encountered a derail device that had to be cleaned. M r. Chaffin decided to

notify the BNSF maintenance crews himself regarding the condition of the derail

device. He also called M r. Forsythe to explain that the condition of the derail

device made it unsafe for the train to proceed into the yards. M r. Forsythe

instructed M r. Chaffin to leave the train and proceed into the yard to begin

cleaning the sw itches. The train could not follow M r. Chaffin into the yard until

the derail device was cleaned.

      M r. Chaffin continued to work on cleaning the next switch he encountered.

M r. Forsythe had told M r. Chaffin that he w ould send a van to transport M r.

Chaffin around the train yard, but it did not arrive. M r. Chaffin called M r.

Forsythe to tell him he was cold and to ask about the van’s status. M r. Forsythe

told M r. Chaffin the van would arrive soon, so M r. Chaffin continued down the

tracks to the next switch. M r. Chaffin testified that he could have returned to the

depot to warm up, but decided to continue in light of his understanding that the

van would soon arrive.

      The van did not arrive, and M r. Chaffin’s foot had become numb and w as

hurting. He decided to walk to the train depot, which was around 2,500 feet

away, to warm up, but he slipped on the way. After slipping, M r. Chaffin decided



                                           5
it w ould be more prudent to seek shelter in a train engine that was much closer.

His foot was sw ollen by this time. M r. Chaffin had continued calling M r.

Forsythe for assistance, who later arrived at the engine where M r. Chaffin was

taking shelter. M r. Chaffin asked for a ride back to the train, but M r. Forsythe

did not give him one. Later, the van arrived, and M r. Chaffin was able to return

to his train, boarding it with assistance from M r. Hall. M r. Chaffin’s pants, socks

and boots w ere wet, and when he attempted to remove his frozen sock, part of his

foot peeled off. M r. Chaffin had been outside in the Amarillo train yard for

nearly four hours. M r. Chaffin continued to try to work for Union Pacific, despite

his injury, for almost four more years. In 2003, he filed the suit that is the subject

of this appeal.

      At the 2004 trial, M r. Chaffin presented evidence from his doctor, Greg

Horton, about the injuries that he suffered due to the fall in the Amarillo train

yard. Dr. Horton explained that it is common for a person to slip and sustain

injuries when his foot is numb, and that in his medical opinion, the debilitating

foot injury M r. Chaffin had suffered had been caused by his accident in the train

yard. Additionally, Dr. Horton stated that M r. Chaffin’s injury, consisting of

tears to the ligaments, permanently prevented M r. Chaffin from performing the

duties associated with being a railroad conductor.

      M r. Chaffin claimed that his injury prevented him from “maximiz[ing] his



                                           6
earning capacity.” Id. at 502. M r. Chaffin presented evidence regarding the

economic damages he sustained as a result of the injury to his foot. He was 47 at

the time of the trial, and at the time of the injury five years earlier, he had worked

for over 20 years at Union Pacific. M r. Chaffin did not testify or offer any

documentary evidence as to what his yearly earnings were from 1979 to 1999, but

he testified that conductors with his level of seniority who work extra shifts (also

referred to as “extra boards” in the railroad industry) earned around $85,000

annually. A Union Pacific representative testified that a conductor like M r.

Chaffin could earn approximately $75,000-$80,000.

      M r. Chaffin also called M r. J.R. Stang, a Union Pacific conductor who

worked in the same region as M r. Chaffin and who had achieved a similar level of

seniority. Union Pacific had objected to M r. Stang’s testimony as irrelevant, but

the district court overruled this objection. M r. Stang testified as to his annual

earnings from 2000 to 2003, which ranged between approximately $86,000 and

$100,0000. M r. Stang admitted that he took many extra boards to earn this much,

and that extra boards had been readily available over the past few years. He

testified that he could not remember when he took an uncompensated day off, and

agreed that he earned that amount of money through a “superhuman effort.” Id.

vol. III, at 486. He also told the jury that M r. Chaffin could earn the same

amount if he took the extra board work.



                                           7
      W ith regards to his lost future earnings claim, M r. Chaffin additionally told

the jury that, once his children were raised, he had planned to take as much work

as M r. Stang. Additionally, the jury also knew that M r. Chaffin had taken 51 days

of uncompensated leave during 1998. M r. Chaffin testified that he had planned to

work until he was 65 or 70.

      Before the jury began deliberations, Union Pacific objected to Instruction

23, which permitted the jury to consider M r. Chaffin’s lost future wages claim.

Union Pacific had also made an oral motion for judgment as a matter of law at the

close of M r. Chaffin’s evidence. The court overruled these objections, and

submitted the case to the jury. The jury found that Union Pacific’s negligence

caused M r. Chaffin’s injury, but decided that M r. Chaffin also was negligent. It

apportioned the blame 63% to Union Pacific and 37% to M r. Chaffin, and

awarded him $819,000 to compensate him for past and future lost wages, past and

future medical expenses, and past and future non-economic losses.

      After the verdict, Union Pacific filed a M otion for New Trial and for

Judgement as a M atter of Law, which the district court denied. It timely filed this

appeal. W e exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                 II. D ISC USSIO N

      On appeal, Union Pacific raises three points of error: first, that the district

court abused its discretion by allowing M r. Stang to testify; second, that the



                                          8
district court erred by failing to grant its M otion for New Trial and Judgment as a

M atter of Law; and third, that the district court erred by allowing the jury to

consider M r. Chaffin’s lost future wages claim. W e address each argument in

turn below.

A.    A dm ission of M r. Stang’s Testim ony

      W e review evidentiary rulings for abuse of discretion. W e “will not disturb

a trial court’s decision unless we ‘have a definite and firm conviction that the

[trial] court made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances.’” United States v. Talamante, 981 F.2d 1153, 1155

(10th Cir. 1992) (quoting United States v. Ortiz, 804 F.2d 1161, 1164 n.2 (10th

Cir. 1986)).

      Union Pacific argued, pursuant to Federal Rules of Evidence 401, 402, and

403, that the district court should not admit M r. Stang’s testimony because it was

irrelevant and likely to mislead the jury. The district court denied this motion,

and M r. Stang testified, as recounted above. On appeal, Union Pacific renews its

relevancy arguments under Rules 401 and 403, primarily contending that M r.

Stang’s earning history did not tend to prove what M r. Chaffin could have earned

in the future because the two conductors were not similarly situated, citing Plourd

v. Southern Pacific Transportation Co., 513 P.2d 1140 (Or. 1973) (Plourd I), for

support. M r. Chaffin argues that he and M r. Stang were similarly situated, that



                                           9
the jury knew of all relevant differences between the two, and that the Oregon

Supreme Court’s rehearing of Plourd I supports the district court’s decision to

admit M r. Stang’s testimony. See Plourd v. S. Pac. Transp. Co., 534 P.2d 965

(Or. 1975) (Plourd II) (concluding that the plaintiff laid a proper foundation for a

co-w orker’s testimony because the plaintiff offered additional evidence to explain

discrepancies between their earnings histories).

      Federal Rule of Evidence 401 provides, in relevant part, that “‘[r]elevant

evidence’ means evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” F ED . R. E VID . 401. “Evidence

that is not relevant is not admissible.” Id. 402.

      Although neither Plourd I or Plourd II is a case from this circuit

interpreting the Federal Rules of Evidence, we nonetheless find that these cases

provide a helpful framew ork to determine whether M r. Stang’s testimony “has

sufficient probative value so as to be properly admissible.” Plourd I, 513 P.2d at

1148. The Plourd cases concerned an injured railroad employee’s attempt to

prove his future earnings capacity by using the testimony of another railroad

employee. Plourd I initially held that a trial judge erred by admitting the

testimony of the other employee because the plaintiff demonstrated earning

capacity was less than the other employee, but he provided no explanation for the



                                         10
discrepancies between the other employee’s earnings and his own. This allowed

the jury “to assume that in the future plaintiff will earn as much as the other

workman. This is not a valid assumption in the face of proof of what they

actually earned and in the absence of proof why plaintiff in the past had been

earning less.” Id. at 1150-1151 (Holman, J., concurring in the result). The

Oregon Supreme Court remanded the case to the trial court for a new trial.

      On remand, the plaintiff again submitted evidence of other employees’

earnings to support his claim of lost future earning capacity. The other employees

were all employed by the same division of the railroad company and of similar

seniority. The plaintiff explained that the other employees earned more than he

because he was responsible for raising his children after a divorce, but that after

his children were raised, he intended to seek promotions and extra shifts. Plourd

II, 534 P.2d at 968. Thus, the court found that the additional information caused

the testimony to meet the standard for admissibility: “evidence of earnings of

other employees is admissible upon the issue of impairment of future earning

capacity if there is a substantial similarity in the circumstances.” Id. “[I]n this

case, the differences in the circumstances of the plaintiff and of other such

employees are matters which go to the weight to be given to such evidence by the

jury, rather than to bar the admissibility of such evidence.” Id. at 969.

      The district court relied on the Plourd cases and decided that “some



                                          11
differences did exist between Stang’s circumstances and those of the plaintiff.

However, these differences clearly fell within matters which affect the weight

they are to be given by the jury; they did not require Stang’s testimony to be

excluded.” App. vol. II, at 254 (D ist. Ct. Order, dated July 22, 2004).

      W e hold that the district court was w ithin its discretion to admit M r.

Stang’s testimony. M r. Chaffin submitted testimony that both he and M r. Stang

had begun working for Union Pacific in 1979; were comparable in seniority; and

had sufficient seniority to take the highest paying extra boards. M r. Chaffin also

offered evidence regarding the differences between himself and M r. Stang – M r.

Chaffin took days off in order to help raise his children, whereas M r. Stang

worked every available day he could. M r. Chaffin told the jury that he had

planned to w ork more once his children were raised. These similarities are

sufficient to make testimony regarding M r. Stang’s earnings probative of what

M r. C haffin would have earned had he continued to work.

      Union Pacific also argues on appeal that even if the testimony was relevant,

it should nonetheless have been excluded because its probative value was

outweighed by the “danger of unfair prejudice, confusion of the issues, or

misleading the jury.” F ED . R. E VID . 403. W e disagree. Although we accept that

there is some danger of confusion to the jury when another person’s wages and

experience are used to show what the plaintiff could have earned, the danger is



                                          12
minimal when the jury hears evidence regarding not only the similarities between

the witness and the plaintiff, but also their differences. Counsel for both parties

clearly highlighted the differences between M r. Stang and M r. Chaffin, and the

jury had the opportunity to evaluate those differences in calculating its award of

damages, and therefore, the danger of prejudice and confusion was minimal. W e

therefore hold that the district court properly admitted M r. Stang’s testimony over

Union Pacific’s objections.

B.    M otion for a N ew T rial and Ju dgm ent as a M atter of L aw

      W e next consider Union Pacific’s M otion for a New Trial and Judgment as

a M atter of Law, which presented two arguments before the district court: first,

that M r. Chaffin had failed to present sufficient evidence to prove U nion Pacific’s

negligence caused his injuries; and second, that M r. Chaffin failed to present

sufficient evidence to support his claim for future lost w ages. Union Pacific

renews both these arguments on appeal. 1


      1
         M r. Chaffin argued in his response brief in this appeal that Union Pacific
failed to preserve these issues because its brief before the district court only
challenged whether M r. Chaffin proved his injuries were foreseeable (not whether
M r. Chaffin proved negligence, causation, and lost future w ages). M r. Chaffin’s
position overlooks the oral motion for judgment as a matter of law that Union
Pacific made at the close of M r. Chaffin’s evidence. See Rec. vol. IV, at 663-
668. The oral motion, in combination with the written brief, are sufficient to
preserve Union Pacific’s arguments. See Aguinaga v. United Food & Commercial
Workers Int’l Union, 993 F.2d 1463, 1470 (10th Cir. 1993). M r. Chaffin also
contends that Union Pacific waived any appellate argument regarding
                                                                         (continued...)

                                          13
        W e review the district court’s denial of Union Pacific’s motion for

judgment as a matter of law under Rule 50 of the Federal Rules of Civil

Procedure de novo, applying the same standard as the district court. Escue v. N.

Okla. College, 450 F.3d 1146, 1156 (10th Cir. 2006). “Judgment as a matter of

law is appropriate only if the evidence points but one way and is susceptible to no

reasonable inferences which may support the nonmoving party.” Id. W e review

the district court’s denial of Union Pacific’s motion for a new trial for abuse of

discretion. Snyder, 354 F.3d at 1187-88. The jury verdict must be upheld unless

it is “clearly, decidedly, or overw helmingly” against the weight of the evidence.

Weese v. Shuckman, 98 F.3d 542, 550 (10th Cir. 1996). W e “consider[] the

evidence in the light most favorable to the prevailing party.” Snyder, 354 F.3d at

1187.

        1.    Negligence Claim

        M r. Chaffin brought suit under FELA, which imposes liability on a railroad

company when its negligence, or that of its employees or agents, results in injury

to an employee. 45 U.S.C. § 51. “[T]he existence of negligence under FELA is a

federal question which generally turns on principles of common law.” Smith v.

Union Pac. R.R. Co., 236 F.3d 1168, 1172 (10th Cir. 2000). Those common law


        1
        (...continued)
foreseeability because it did not discuss the issue in its opening brief on appeal.
M r. C haffin is simply incorrect on this point. See Aplt’s Br. at 29-31.

                                          14
elements “includ[e] duty, breach, foreseeability, and causation.” Williams v.

Nat’l R.R. Passenger Corp., 161 F.3d 1059, 1062 (7th Cir. 1998). Union

Pacific’s brief on appeal challenges each of these elements. W e conclude that

M r. C haffin presented sufficient evidence under each element.

             a.    Duty and Breach of Duty

      The district court instructed the jury that it had to find that Union Pacific

breached at least one of the following duties: the provision of (1) reasonably safe

conditions to work; (2) adequate assistance while working; (3) adequate tools and

equipment; and (4) reasonably safe methods for working. App. vol. II, at 215

(Jury Instruction no. 13). Keeping in mind that because of FELA’s comparative

negligence provision, see Consolidated Rail Corp. v. Gottshall, 512 U.S. 532,

542-43 (1994), an employer’s negligence need not have been the sole cause of

injury, our review of the record shows that M r. Chaffin presented sufficient

evidence for a reasonable juror to conclude, at least, that Union Pacific (1) failed

to provide reasonably safe working conditions and (2) also failed to provide him

with adequate assistance while cleaning the switches. See Rogers v. M o. Pac.

R.R. Co., 352 U.S. 500, 513 (1957) (explaining that FELA requires a case be

submitted to a jury when “the proofs justify with reason the conclusion that

employer negligence played any part, even the slightest, in producing the injury or

death for w hich damages are sought”).



                                          15
      W ith respect to breaching the duty to provide M r. Chaffin with adequate

assistance, the evidence shows that M r. Forsythe failed to notify BN SF

maintenance crews that M r. Chaffin’s train w as arriving, and thus they were

unable to assist M r. Chaffin in clearing the ice and snow from the switches.

Additionally, M r. Forsythe had told M r. Chaffin that he would send a van to

transport M r. Chaffin around the train yard, or to take him somew here to w arm

himself. M r. Chaffin, in reliance on this representation, proceeded down the track

farther away from the train depot where he could have sought shelter from the

elements when his foot began to numb.

      Regarding Union Pacific’s breach of the duty to provide reasonably safe

working conditions, we acknowledge that the railroad cannot control weather

conditions and that its employees are expected to work in adverse weather.

However, M r. Chaffin identified numerous exacerbating factors that would allow

a jury to infer that Union Pacific breached its duty to provide reasonably safe

working conditions: the switches were not cleared of ice and snow by a

maintenance crew as a result of M r. Forsythe’s failure to notify BNSF that M r.

Chaffin’s train had arrived; M r. Forsythe changed M r. Chaffin’s assignment to a

more lengthy, complicated one that involved cleaning multiple switches, despite

the weather conditions; and M r. Forsythe did not deliver on his promise to quickly

provide a van to transport M r. Chaffin between the switches. A reasonable jury



                                         16
could have inferred that M r. Forsythe knew or should have known that having a

BNSF maintenance crew clean the switches, or at least providing a warm mode of

transportation for M r. Chaffin while he cleaned them, were necessary to ensuring

that M r. Chaffin worked in reasonably safe conditions.

             b.     Foreseeability

      Union Pacific also argues that even if it breached any duty, its negligence

was legally insufficient, or perhaps was “in the [frigid] air,” Palsgraf v. Long

Island R.R. Co., 248 N.Y. 339, 341 (N.Y. 1928) (internal quotation marks

omitted), and that it could not have foreseen that such a breach would lead to M r.

Chaffin slipping and hurting his foot. It contends that M r. Chaffin’s argument

depends on showing “that his foot injury – as opposed to the frostbite injury –

was caused by the railroad’s negligence . . . .” Aplt’s Br. at 29. This position

ignores the medical evidence submitted during the trial that M r. Chaffin’s slip

outside was likely a result of the numbness in his foot caused by his exposure to

the elements. Rec. vol. V, at 792-93. It also ignores FELA precedent, which

clarifies that the railroad need not have foreseen the specific harm that resulted

from its negligence to be held liable. Gallick v. Baltimore & O.R. Co., 372 U.S.

108, 117-120 (“[R]easonable foreseeablility of harm is an essential ingredient of

Federal Employers’ Liability Act negligence. . . . [F]or a defendant to be liable

for consequential damages he need not foresee the particular consequences of his



                                          17
negligent acts: assuming the existence of a threshold tort against the person, then

whatever damages flow from it are recoverable.”).

      It was proper to submit the case to the jury on these facts, since the jury

could have inferred that M r. Forsythe should have known that M r. Chaffin was in

distress from his repeated calls, or should have foreseen from the severe weather

conditions alone that an injury, such as frostbite (w hich in turn caused him to fall

and injure his foot) might result from exposure to the elements.

             c.    Causation

      Finally, Union Pacific contends that M r. Chaffin failed to present any

evidence that his foot injury was caused by Union Pacific’s negligence, arguing

that he offered no evidence about what caused the slip that, in turn, caused the

debilitating injury. This is without basis, as M r. Chaffin presented testimony

from his doctor, who explained that M r. Chaffin’s fall caused a twisting or

inversion injury to his foot, and that if a person’s foot goes numb, as happens

with exposure to extreme w eather conditions, an inversion injury is likely. There

was ample evidence for the jury to find that the foot injury was caused by M r.

Chaffin’s negligent exposure to the elements.

      W e conclude that M r. Chaffin presented sufficient evidence on each

element of his FELA negligence claim to submit his case to the jury. Therefore

the district court properly denied Union Pacific’s M otion for a New Trial or



                                          18
Judgment as a M atter of Law.

      2.     Lost Future W ages Claim

      W e next consider Union Pacific’s argument that M r. Chaffin presented

insufficient evidence on his lost future wages claim. W e have explained that

FELA entitles a claimant “to the difference between what he was able to earn

prior to his injury and what he . . . could have earned thereafter.” Tayler v.

Denver & R.G.W.R. Co., 438 F.2d 351, 354 (10th Cir. 1971). Union Pacific

contends that M r. Chaffin is not entitled to any lost future wages because he did

not present sufficient evidence of what he earned prior to the injury. Specifically,

Union Pacific points to the fact that he did not submit W -2s or testify as to the

exact amount of his wages prior to the accident. Because of this lack of evidence,

Union Pacific argues that the jury could not accurately calculate the extent of M r.

Chaffin’s diminished earnings capacity.

      Union Pacific’s contention ignores that one of its own representatives

testified at trial that conductors like M r. Chaffin earn $75,000 to $80,000 each

year. W e acknowledge that W -2s or other evidence of actual past w ages w ould

have certainly assisted the jury in coming to a determination about what M r.

Chaffin would have earned but for the injury. For the years 1999 to 2003,

however, when M r. Chaffin was still attempting to work at the railroad, he

detailed the specific amount of money that he lost after taking time off because of



                                          19
his injury. Rec. vol. IV, at 573. Additionally, the record makes clear that M r.

Chaffin’s earnings history may not have been particularly relevant to what he

would have earned but for his injury. M r. Stang testified that the earnings of all

conductors had increased in the past few years. Rec. vol. III, at 476. Finally, it

was within the jury’s discretion to discount the ranges of conductors’ earnings

M r. Stang provided, depending upon whether they credited M r. Chaffin’s

testimony that he had planned to work as much as M r. Stang once he finished

raising his children. Our review of the record shows that M r. Chaffin presented

sufficient evidence for the district court to submit his lost future earnings claim to

the jury.

C.     Jury Instructions on L ost Future W ages

       Union Pacific’s final argument on appeal is that the district court erred by

giving Instruction 23 to the jury, permitting them to aw ard damages based on M r.

Chaffin’s lost future wages. “[W]e review the district court’s decision to give a

particular jury instruction for abuse of discretion and consider the instructions as

a whole de novo to determine whether they accurately informed the jury of the

governing law.” United Stats v. Platte, 401 F.3d 1176, 1183 (10th Cir. 2005)

(internal quotation marks omitted).

       Union Pacific objected to Instruction 23, particularly paragraph three,

which allowed the jury to consider M r. Chaffin’s lost future wages claim. Union



                                          20
Pacific concedes in its opening brief that this argument is a “corollary to its

challenge to the sufficiency of Chaffin’s claim for future lost wages.” A plt’s Br.

at 44, 46. Because we held that M r. Chaffin presented “sufficient competent

evidence” to prove his lost future w ages claim, we hold that the district court

properly instructed the jury on this element of damages as well. Perlmutter v.

U.S. Gypsum Co., 4 F.3d 864, 872 (10th Cir. 1993); see Allen v. Wal-M art Stores,

241 F.3d 1293, 1297 (10th Cir. 2001) (“A party is entitled to an instruction on

their theory of the case so long as the instruction is supported by competent

evidence on the issue or theory supporting the instruction.”) (citing Perlmutter, 4

F.3d at 871).

                                III. C O N C L U SIO N

      For the reasons explained above, we AFFIRM the district court.




                                                     Entered for the court,




                                                     Robert H. Henry
                                                     Circuit Judge




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