*1
Argued
1,
September
petition
June
reversed
remanded
rehearing
denied October
Respondent,
PLOURD,
v. SOUTHERN PACIFIC
Appellant.
COMPANY,
TRANSPORTATION
Edward San California, J. respondent. him on cause for With briefs were Boccardo, Blum, Niland, Teerlink Lull, & Bell, San California, J Landis ose, G-earin, & Aebi, Portland, and John Gearin, Gordon Portland. Presiding
Before Justice, and Holman, Denecke, Justices. Tongue, Howell Bryson, J. TONGUE, damages personal
This an action for is. injuries freight sustained a brakeman on a train process stopping in the when, that 74-car train, the plaintiff ran in” with such “slack violence as to throw to the floor of caboose. The case was tried before a jury, which returned verdict favor of $400,000. sum deny
Defendant does not there was suf- jury, to take ficient evidence the case to the but con- *4 vaiy to a new tends that-it is-entitled trial because of ious errors. submitting jury the
1. The trial court erred in to a by any specification supported not substantial evidence. complaint
Plaintiff’s was in two counts. Count alleged I that defendant violated the Federal Em- seq, failing ployers’ Liability §§ et Act, USC provide plaintiff place spe- a to safe to work. More alleged cifically, plaintiff’s complaint that defendant operate and “failed maintain cars and train in a to equip, repair, safe manner and further failed to main- engine operate cars and the in a and brakes on tain, respects, proper specifically as manner” in various al- alleged leged. II that defendant violated not Count only Inspection also the Act, the but Boiler F.E.L.A., Safety Appliance §§ and the 22-34, Act, 45 USC respects, specifically §§ as various also 1-16, USC alleged. assigns (1) giv- as error: first
Defendant relating requirements lengthy ing to instructions Inspection Safety Appliance Act and Act; Boiler giving assumption (2) instruction that of an of risk (3) case, in such a and the failure a to not defense charges from the both withdraw relating operating a II to train on which and I Counts broken. chain was hose air some of was some evidence There the locomotives were worn one of on shoes brake contributing thin been “a have cause” and that unexpected slack action. There was the sudden a broken air hose chain evidence, no only anything “slack with that action.” to do had air was broken hose that there chain evidence permit freight as so the air cars, hose one on might hang damaged. low that it so car on
671 There was no that the air evidence, however, hose on any damaged or that other car was or otherwise de- fective. relating
Because of the evidence to the brake on shoes one of the was entitled locomotives, relating Inspection to some instruction to the Boiler Safety Appliance ifAct, not Act. It also the given requested instructions as and on those proper. acts two were more extensive and detailed than primary exception, Defendant’s was to the giving any Inspection instruction under the Boiler exceptions relating Act. Its further to the content of entirely such instructions not are clear to us from the record. agree
We
with defendant
instruction
assumption
necessary,
being
on
of risk was not
there
giving
no such issue in this case. Whether the
of that
prejudicial
instruction constituted
error so as to alone
is another matter. ‹
require a new
trial,
any
improper
In
we hold that it was both
event,
prejudicial
the trial
and
for
court to refuse to with
specifications from both
I
draw the
Counts
and II re
lating
air
It
hose chain.
is well
broken
estab
Oregon
it is error
lished
to submit to the
negligence unsupported
any specification
evi
applicable
and that this rule is also
dence
actions
Employers’ Liability
under the Federal
Act.
Al
See
Railway
261
Co.,
v.
North.
Or 66, 75-77,
varez Great
(1971), and cases cited therein.
Plaintiff that defendant’s specific, sufficiently but was a motion strike relating specifications shoes to both worn brake The record shows that air hose chain. the broken allegations all of the defendant’s motion to strike Paragraph which I, subdivision of Count VII, alleged air hose shoes and broken worn brake both “each” of the also to strike chain. moved Defendant (one Paragraph specifications II two TV Count alleged al- and the of which worn brake shoes other *6 leged chain). a the at- result, broken air hose As the sufficiently the the was directed to of court tention relating specification in the air each count to broken speci- to fail strike that hose chain and it was error to in each count. fication n says that the failure to strike
Plaintiff also specification from each count of withdraw that and to prejudicial complaint “the admit- the was not because a the broken air hose chain was not ted existence of significant in case.”. how- Because, factor only specifications de- were two other of ever, there specification (in equipment in addition fective properly operate the failure to brakes I of Count say throttle), we that the broken air hose cannot “significant in the factor” delibera- not a chain arriving jury in at its verdict this case. the tions Accordingly, hold that defendant entitled we this of error. because new trial failing jury to instruct court erred the trial 2. The wages any loss must be on award of future for n present value the basis of benefits. assigns as error next failure of Defendant requested give its instruction to trial court wáges any for loss future award and other
673 pecuniary present benefits must be on the basis of holding in value Cases that such an of such benefits. given must under Federal struction cases Liability Ry. Employers’ Act include &Ches. Ohio v. Kelly, 241 L 488-91, 630, US 36 S Ct 60 ed 1117 485, (1916), Ry. Gulf, Moser, C. S.F. v. 133, & US ed 49, S Ct 72 L 135-36,48 Bray,
In Meier v.
613,
Or
475 P2d
(1970),
damages
we held that an
award
an
wrongful
action for
death must be reduced to
recently, and
value. More
since the trial in
case,
we
held in
Mtrs,
also
Osborne Bessonette/Medford
(1973),
Or
We therefore hold that the trial court such an instruction in this case. › failing give erred in We need not decide in this case whether the failure to give such an instruction alone constitutes error so prejudicial require as to a new trial because the trial failing specification court erred in also to withdraw a negligence unsupported any negli substantial *7 gence. permitting plaintiffs
3. The trial court did not err in expert witness to assume continued increases future wage purpose computing rates for of present proposed value a aivard loss of for of fu- wages. ture assigns Defendant also as error the admission › The why give trial reasons court failed to an such in entirely struction are not clear and have related to the form (Continued 674) page on
674 by testimony professor opinion a of economies
of
expert
by plaintiff
That witness
as an
witness.
called
objection,
explain
computa
permitted,
a
was
over
wages,
as
of future
tion
claim for loss
of
by large
paper,
on butcher
which
shown
exhibit
it
also
in evidence. Defendant contends
received
upon past
permit
witness,
this
based
was error to
wage
history
wage
project
in
increases,
of
average
per
years at an
of 5
for the next 23
creases
year. fi
per
cent
by
assignment
problem presented
this
of er-
The
Harper
of
in 2
Law
James,
ror is discussed
(1956),
§
as follows:
25.11
1325-326,
Torts
damages
surrounds
“Greater confusion
money
Future trends
the value
future loss.
always
necessarily
render such
unknown and so
are
escape.
way
damages speculative in a
cannot
we
straight-line projection
represent a
If the estimates
living
they
will be frustrated
costs,
way.
change
prophecy of
is
either
If
fluctuations
(Continued
673)
page
from
question
requested
in the
That
not discussed
instruction.
of the
expressly approve
briefs,
reason
do not
and for this
we
requested
case.
defendant
the form of the instructions
fi In
support
defendant dtes Williams v.
contention
(1st
1970);
States,
804,
F2d
807
Cir
Sleeman v. Chesa
435
United
Railway
(6th
Company,
305,
peake
414 F2d
307
Cir
and Ohio
App
1969);
Company,
York Central Railroad
129 Ill
Raines v. New
grounds,
895,
(1970),
294,
rev’d on other
Ill 2d
72
2d
NE2d
900
51
263
Virginian Ry.
428,
(1972);
Co.,
v.
NE2d
Armentrout
283
230
(SD
1947),
grounds,
997,
Supp
rev’d on other
F2d
1001 WVa
166
F
(4th
1948);
Corporation,
States
Cir
Petition
United
Steel
400
436 F2d
91
(6th
1970),
denied,
987,
1256,
Cir
cert
1279-80
402 US
(1971).
1649,
ed 2d 153
Some
these
S Ct
L
cases are not
support
position.
directly
point,
others
defendant’s
but
To
Chesapeake
Railway
Scruggs
contrary,
Company,
v.
and Ohio
see
(WD
1970);
Supp 1248,
F
Va
Resner v.
Northern Pacific
(Mont 1973);
86,
Elliott,
88-91
Beaulieu
505 P2d
v.
Railway,
1967).
Long
(Alas
665,
Cf.
434 P2d
Grunenthal
Island R.
160-61,
(1968).
Co.,
89 S Ct
21 L ed
US
2d 309
See
Annot., 12 ALR2d 611
also
*8
change,
heeded, frustration will follow if no
or
opposite change,
the
occurs. When courts have
consciously grappled
problem they
with the
have
prophecy
speculative
either found all
too
and so,
perforce,
equally speculative
have taken the
course
betting
quo;
on a continuance of the status
or
they
judgments
always very
have made intuitive and not
wise
present
represent
conditions
a de-
parture
imaginary
they
from some
norm to which
rapidly
think we shall
return.
It is not at all clear
willing
experts
courts would be
to hear
get
on the
they
help
matter, or that
would
much real
if
they
part
problem—which
did. For the most
the
is
inevitably present
every
case of future loss—is
analyzed
money
not
and the
value of
is
proper
assumed to be the
basis.”
Weyerhaeuser
This court held in Sandow v.
Co.,
(1969),
252 Or
449 P2d
377, 380,
expert
testimony
opinion
is
subject
admissible whenever the
“sufficiently
matter involved is
lay
technical” that a
juror
expected
equally
qualified
cannot be
to be
well
judgment.
to form a worthwhile
To the same effect,
see Ritter
Beals
al,
et
Applying Oregon per- test, courts have expert opinion testimony mitted involving cases subjects beyond understanding technical of ordinary lay juror, malpractice as medical injury personal involving questions cases, eases medical diagnosis prognosis causation, and in cases in- volving engineering questions or architectural safety buildings. in the construction of subject It true that be computing wage impaired value losses or earning capacity, including question of what, if any, given is to consideration to future increases earnings entirely or not wages comparable *9 in such cases.
subjects involved it is our that the com- Nevertheless, experience or wage the of future losses of value putation present of is not a impairment earning simple capacity prob- involves the of mathematical lem, application prin- but jurors of most beyond understanding lay ciples that themselves have attorneys judges sometimes in making or such difficulty understanding computa- a much them in such as to explaining way less tions, most lay jurors. be understood by held that in such an action have previously We to reduce for fu any must be instructed award a jury of earning or to wages impairment capacity ture lost of such an award. In so in value doing court must as action the or necessarily such an rate of In a discount interest. sume and apply proper of an award for future wage reduction addition, of to the earning capacity loss or impairment by the of application such award any value of interest must assume that necessarily rate of discount continue bear interest at award will such an wage of the for the duration future loss or same rate earning of capacity. impairment object does not Defendant calling by to present witness a of an expert computa plaintiff what value contended the present tion of of for plaintiff’s award loss wage to be a proper That earning capacity. practice or impairment in Osborne us by approved Bessonette/Medford supra: Mtrs, Indeed, ex practice calling for either by party purpose may witnesses pert method of presenting these issues reliable most be the to Prove Leasure, How Reduction to See a jury. (1960); 210-14 L J 21. Ohio St Worth, Present Earning Capacity and Future Ex- of Lost Proof Eden, (1965), and 1 Am penses, of Facts 701 Proof Jur, Damages § 12.7 What 12-8, Bar CLE, StOr assumption objects is the however, to, defendant any given wage at increases of future such a witness computation, making purpose such a rate for wage history previous increases upon past a based wages expert will opinion witness and the the rate used in the future at increase continue to computation. him such speculative opinion, more is no it
In our employment wage for rates to assume per year per cent increase at least will continue history upon years, of such the next 23 based *10 years, during past 23 than it is a rate of increase discount rate will remain that the interest to assume 23-year period. stationary during In order the same prepare computation an value of a of jury expert witness—and the a ease an award wage necessarily either that rates and assume —-must stationary during the future will remain interest rates they period or award is made will which the specified at some rate. and decrease, increase or judicial of the his take notice This court can wage tory for the for railroad workers increases of average including years, at an rate of past increases higher year per per with a much rate of cent least 5 at years. fl during past As stated in five increase Railway Company, Chesapeake Scruggs and Ohio fl Labor, Statistics, Dep’t Bureau of Labor Bull No. of US See Earnings 1909-71, 503-04; Dep’t Employment US of 1312-8, and Statistics, Employment Earnings, and Labor, of Labor Bureau Commerce, Dep’t 96; Social and and US of Economic at Feb Administration, Abstract of the United States Statistical Statistics 1972, 228 Supp (WD 1970), referring 320 F 1248, 1250-251 Va split authority question of on this and hold ing computing that in value of an award wrongful expert in an action for death an witness properly project per wage year a 5 cent increase each per productivity per based on a 2 cent increase and 3 inflationary cent increase: pointed courts “Other have out that infla- some years period
tion over a of seems to a fact of be life practical juries scarcely as a that, can matter, prevented considering from such elements in determining their deliberations. tutes a reasonable amount of ‘In what consti- damages the shrink- ing purchasing power of the dollar must be borne * * * topic in mind.’ Inflation is a of almost uni- improbable versal discussion it seems that the taking could avoid it into account even in the * * *” any testimony absence about it. being “pure This we do not think that so, it is speculation,” quali- as contended for a defendant, expert past history fied witness to infer from such a including wages, during increases in inflation, years wage the next 23 rates will continue to increase average per per year. at an of at least 5 cent prove time will be that such an infer It ma3r It does not follow, ence be erroneous. inference at a reasonable this time
this is not expert purpose computing qualified witness for the proposed present value of a award for future loss impairment earning wages capacity or *11 a case. disagree are in such case free to Defendants computations present pres- witnesses to of call to and assumptions upon different of future value based ent including interest wage fates, discount and increases
679
consequences
as
refers to
“collateral
what defendant
by defendant,
is
as contended
true,
of inflation.” It
predictions.”
is
It
also
differ on their
that “economists
government
that the
defendant,
as contended
true,
pointed
attempting
as
out
inflation,
to control
Supp 1331,
F
States,
v.
Frankel
United
jury,
1970).
(ED
to ac-
is not bound
Pa
cept
and
well conclude
such contentions
among
considering
debt,
the size of the
national
likely
knowledge,
far
it is more
other facts of common
prac-
government
as a
choice,
the federal
has no
permit
than
continued inflation.
tical
other
matter,
recognized that
the decisions which
It has been
injury
every day
juries
personal
must made
determining the amounts to be awarded for
cases in
wages
impairments
or for
of
future losses
necessarily
upon specu
earning capacity must
border
Harper
The Law
and
of Torts
James,
1325,
lation.
Scruggs
Chesapeake
(1956),
§
v.
and
Ohio
25.11
supra
Railway Company,
also,
at 1251. See
Conachan
(1973),
511 P2d
and au
Williams,
Or
therein.
v. General Motors
cited
Cf. Goheen
thorities
Corp.,
Other defendant to the go primarily expert of witness to the credi- bility weight given testimony, to be to such rather admissibility. than its showing computations: exhibit
Offer of Refusal of subject instructions that award not to income taxes. For we hold that the much the same reasons, receiving as an trial court did not err in into evidence computation purposes, for illustrative of exhibit, setting the witness which he ar forth the method proposed present rived at of the award for value wages. Again, loss defendant was free to of testimony illustrative exhibits. offer similar assignment part this same of error de As a complains the failure of the trial court fendant also any jury such award was not sub instruct the to ject great majority of courts to income taxes. question have held that it considered that which have agree. refuse such an instruction. We error to is not As stated in 63 ALR2d See Annot., 679) page (Continued from Damages 12.7, 12-9, Education, CLE, it 12-8 to is 1 Or St Bar § that: stated many Oregon experience, cases tried in are “In the author’s earning capacity is future loss of submitted issue of where the to evidence, jury, jury, instructions no or with present argument reduction to worth. about may reason for the be that the absence cases on “It well discounting present subject future losses to value offset or the Oregon usually the discount rate is fact that is the declining or the the rate of value of overcome inflation money. advantage, standpoint, trial from a is little of hav earning “There discounting ing-the judge on future loss of instruct value, capacity he also if instructs declining money value of account or rate take into App2d French, Cal Gist v. [136 inflation. P2d 1002 247] Weisflog, (Cal (Wis 1955); Dabareiner Wis [253 NW2d 23] 1948).” ... Railway Company, and Ohio v. Chesapeake Scruggs 1251: at supra “* n * * instructing about difficulty One recoveries of damage the nontaxability on jury that future on the amount in the the interest paid loss will of the pecuniary is the value which even for tax. It would be difficult subject *13 readily determine accountant certified public would be, although tax difference the real what exists. the undoubtedly Therefore, difference some more to follow the tra- feels constrained court on authority point.” ditional a admitting erred in a computation 4. The court wages loss another brake- hypothetical of future for seniority. man with comparable next as error the assigns Defendant admission of a same ex- computation by plaintiff’s in evidence same basis, witness on the the showing,, pert the future of another brakeman wages value of on the defendant’s railroad same division of who had a sen- six months junior plaintiff’s. iority defendant that such by It is contended a com- who for another earned employee, apparently putation with “annualized compared $11,432 was $8,227, for that year completely ir- earnings” had first showing no been made relevant because that were “substantially circumstances sim- the material in issue and that those- computations ilar” to the jury. and confuse mislead would problem recently similar con This v. Williams, Conachan the court sidered Or . ) 392 (1973 P2d case, we held (at p 59) that any evi- In . “indicate, fairly would capacity which dence plaintiff money to earn in his asnal vocation” recognized (at should p 61) be admitted. alsoWe apparently question most courts now hold that on the earning capacity proper it is to consider, under employment some circumstances, for which qualified injury at time of his and the usual employment. – compensation paid for such We also (at p 65), although judge however held, a trial rejection has considerable latitude in the admission or showing of such there evidence, should be a as a foun dation admission of such evidence that cir sufficiently provide cumstances are similar so as to proper an basis for informed decision the trial judge probative whether such evidence has sufficient properly value so as to be admissible. application
On of these rules to this case I would hold that there was no abuse discretion or plaintiff’s expert permitting pre error in witness to pare computation question. majority contrary opin of the is of the court, specially concurring ion for reasons stated in the *14 opinion by Holman, J. previously ques- stated,
As however, the ultimate in tion to be decided such a case is the extent to injured person’s earning capacity which an has earnings, impaired. although Plaintiff’s actual been persuasive, are not conclusive and are no more than deciding in to be considered evidence question. ultimate supra Williams, v. at 514. Conachan jury reasonably my could infer view, In – Williams, 45, cited in Conachan v. 266 Or See cases P2d Pennsylvania 392, cites Pinkstaff Defendant Railroad App 507, 728, affd, Company, (1959), 163 NE2d 23 Ill 2d 740-41 denied, (1960), 878, cert NE2d 139 365 US 2d 20 Ill S Ct holding contrary. (1961), as 6 L 2d 191 ed although earnings particular employees annual job may vary, with same classification a railroad seniority comparable capacity, employees with have through seniority rights, exercise of their to make earnings, assuming comparable annual that such em- ployees good are in health. my judge opinion,
It in the trial follows, holding, in in this case did not err that com- effect, earnings putations upon based annual of another division of the same railroad, brakeman the same seniority substantially and with the same had date, probative sufficient value to admissible over an objection computations that such were “irrelevant and improper to use the situation some other worker * * * ?? computa- of the manner which such
Because by plaintiff, purposes, tions were used illustrative I that the was not misled would also hold or con- previously the admission of evidence. As fused majority of the court has held to stated, contrary. excluding did not err trial court 5. The defendant’s employment clerical that it would evidence offer plaintiff. assigns as error the exclusion
Defendant rebutting as “defendant’s refers to evidence what it totally unemployable.” that he was evidence testified witness who to that Plaintiff’s effect, upon the facts which to state he based when asked opinion, that: said * “* * major company is Southern Pacific work he is unable to he is there; ob- Railroad; *15 viously at all and some other em- unable to work ployer want to take the chance to have wouldn’t working having to take man for them and then this the damage liability Pacific Railroad of Southern just him. In other he is not—I don’t words, to he could do.” know what testimony an of- To rebut defendant made that testimony agent charge proof of “its in fer of of the Eugene yard,” [its] effect the clerical force at plaintiff could offer clerical work within a he working short that he has two disabled trainmen time; department he his and that was authorized “to any hiring” physical requirement waive for and to plaintiff position.” “the first available That of- offer rejected. proof fer of was
Defendant contends the trial court erred doing (1) “was than a so because it more mere offer proved employment—it the existence and availabil- jury might [plaintiff] ity which a conclude of work (2) perform” physically it was admissible “as can “damaging right” rebut the matter of insinuation” plaintiff unemployable by plaintiff’s witness job “constitutes or controls the defendant because further use for “had no because market” and callously injured left to others re- he was they employment, sponsibility which are his natur- unwilling ally assume.” directly point
Although
on its facts,
not
evi
employment
at the
offer
time of
a similar
dence of
rejected
Zimmerman v. Montour
Railroad
trial was
(WD
1961),
Supp
Company,
433, Pa
F
affd,
(1961),
denied,
cert
369US
685 my judgment, is -without value a fair probative appraisal impairment earning power.” also See Bowman-Hicks Lumber Robinson, Co. v. 16 (9th 1926), F2d 241 Cir cert 240, 274 denied, 736, US (1927). 47 S L ed Ct 574, 71 But see Holland v. McRae Oil Fertilizer Co., & Ga SE 555 678, may
It
true
be
that the offered evidence had
question
some relevance to the
a
whether, as
result of
injury, plaintiff
unemployable.
his
was
how
When,
probative
the
ever,
value of offered evidence is not
great, any
probative
outweighed by
such
value
be
surprise,
considerations such as those of
unfairness,
jury,
prolonging
confusion of the
and the
of a trial.
Kelty
al,
v. Fisher et
In it this ease that defendant had never, prior job to offered a trial, to or even suggested might it To that do so. wait until the trial progress employ was well in to make such an offer of judge could well considered a ment trial as a involving considerations circumstance of such a nature. Accordingly, properly the trial court could hold outweighed probative these considerations value of testimony provide proper so as offered to basis rejecting offer unless defendant is correct in remaining contention. its problem contention,
As to that similar party “right” question whether a has a to offer Wigmore refers to as “curative what evidence” in response evidence which inadmissible received objection. "Wig- In as stated in 1
without such cases, 1940) (3d § more Evidence ed 15: on “* * * left the hands matter is thus Modify certain cases trial Court. right, conceding opponent, as of to the use plain when a curative counter-evidence unfair prejudice inured to him, would otherwise have sufficiently rule will be flexible.” properly ap- this same rule is believe We presented problem Upon plicable in this case. this, examining we case, are the record any “plain prejudice and unfair to find that unable *17 As have inured” to defendant. we otherwise would testimony plain- primary of the of thrust read it, plaintiff that could not find em- tiff’s was not witness job ployment had refused to offer a because defendant plaintiff “obviously to unable work to but that him, jury might possible is that a have it con- all.” at "While by testimony in the manner contended de- strued give opinion, possibility did our not, fendant, that prejudice showing “plain and that unfair rise to as inured” to defendant so have otherwise would judge require trial abused his dis- that the us to hold by proof rejecting of defendant. the offer cretion assignment part of same error de- of this As a by plain- complains this matter reference to fendant argument jury. opening to the in his counsel tiff’s respond to contention and that we not does Plaintiff argument of this case that on retrial can assume repeated. will not assignments error. Other
6: defendant’s other as- considered also have We objee- primarily relate which signments error, plaintiff’s tions to other statements counsel his argument jury, most of which were followed prejudicial motions mistrial, and find no error. approves This course, does not that this mean, court arguments, of such much that on less retrial of this again specif- these ease, after matters have been ically plaintiff by assign- called to attention plaintiff’s ments of error defendant’s brief, counsel expect necessarily judge again deny can the trial arguments motions for mistrial in the event that these repeated. are previously judg-
For reasons stated, however, the ment in this must be set aside case and the case re- manded for a new trial. concurring in J.,
HOLMAN, result. disagree part opinion I with that of the which proper holds that it was to admit in evidence a com- putation wages upon of future loss of based the earn- ings of The another brakeman. evidence relates to earning capacity. opinion assumes that seniority, is similar because there there is sufficient similarity capacities earning between to make what other workman earned relevant. The error in assumption earning demonstrated capacity assumption. is at with such an variance With- why any showing (i.e., tempo- out earned less *18 etc.), rary injury, illness, allowed to assume plaintiff will in the future earn as much as assumption This is workman. not a valid other in they actually proof what face earned and in the why plaintiff proof past has absence been earning less. join Bryson, JJ, this con- Howell,
Denecke, curring opinion.