concurring in the result.
As the panel’s opinion states, the district court did not, in spite of Jones’s exception thereto, make clear to the jury in its charge that the burden was on the defendant to show that Jones failed to mitigate his damages. That is to say, it did not make clear that the burden was on the defendant to show that, after his injury and prior to the trial, Jones was able to do some work and did not make a reasonable effort to find and do such work. Although, as the panel’s opinion recognizes, our court has held that Jones had the duty to mitigate his damages, Baker v. Baltimore & Ohio R.R., 502 F.2d 638, 644 (6th Cir.1974), the opinion correctly holds that the burden was on the defendant to show that Jones had not fulfilled that duty. While the panel’s opinion does not cite an FELA case that so holds (and I have not been able to find one), I agree with the conclusion that the law in analogous situations supports this placing of the burden, and moreover, as the panel’s opinion points out, the FELA is liberally construed in favor of the injured railroad employee.
For completeness, I am of the view that the district court’s charge (and the panel’s opinion) does not make a sufficiently clear distinction between separate items of damage resulting from the injury, i.e., (a) loss of income incurred after the accident and prior to the trial and (b) damage as a result of a decrease in earning capacity which will reduce future income. The panel’s opinion, as I understand it, and this concurrence are granting a new trial only on the basis of an error in the charge to the jury with respect to damages from loss of income prior to the trial.