No. 82-182 

IN THE SUPREPX COURT OF THE STATE OF MONTANA 

1982 

ROBERT W. CALLIHAN, 

Plaintiff and Respondent, 

-vsBURLINGTON NORTITZ3N INC., 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula, The Honorable 

John S. Kenson, Judge presiding. 

Counsel of Record: 

For Appellant: 

M. Kent Koolen, Billings, Montana 

Corette, Smith, Pohlman & Allen, Butte, Montana 

For Respondent r 

John C. Hoyt, Great Falls, Montana 

Submitted on Briefs: September 16, 1932 

~ecided: December 6, 1982 

rift - 6 1982 

Filed : 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

Burlington Northern appeals a judgment in the amount of 

$1,031,029.00 awarded plaintiff, Robert W. Callihan, for 

personal injuries suffered in an accident March 25, 1978. 

A motion for new trial was made and denied. This appeal 

followed. 

On March 25, 1978, Callihan was an engineer on a Burlington 

Northern locomotive. The back of the seat, in which he was 

sitting, broke, causing him to fall backwards. By the end 

of the trip, Callihan was suffering severe back pain. He 

made six more trips as engineer prior to ceasing work April 

9, 1978, due to unbearable back pain. 

Callihan had suffered two previous back injuries while 

working for Burlington Northern, both resulting in settlements 

between Callihan and Burlington Northern. In 1954, a train 

on which Callihan was riding made an emergency stop, throwing 

him from a bunk. About a year later, he had back surgery. 

A laminectomy was performed and vertebrae in his lower back 

were fused. Following the surgery, Callihan returned to his 

regular employment and his normal recreational activities-- 

hunting, horseback riding, dancing, lawn work, carpentry, 

remodeling and painting. He also began playing golf and 

became quite accomplished. 

In 1971, Callihan slipped and fell on ice outside the 

train depot in Troy, Montana. He continued regular employment until 1973, when a second back operation was performed. 

The operation consisted of another laminectomy and the 

fusion of vertebrae immediately above the first fusion. 

Following the second operation, Callihan again returned 

to his regular, full-time employment. His preaccident 

activities were not restricted. However, he took Tylenol 3 
regularly, as well as Valium in the evening for sleeping 

purposes. 

~fter open heart surgery in 1977, three doctors pronounced 

Callihan to be in good health and able to return to work 

without restriction. Later in 1977, after a mandatory 

physical, a railroad doctor reported that Callihan had 

passed with "flying colors." 

Apparently, Callihan then remained in good health until 

suffering his third back injury on March 25, 1978. The 

resulting pain was so severe, he ceased working and sought 

relief from many different doctors and procedures. From 

April 10, 1978, until the commencement of this suit on 

August 28, 1980, Callihan had three myelograms, two laminectomies, 

five nerve blocks, four rhizotomies and a partial rhizotomy, 

for a total of seven operations. He also visited a chiropractor 

and an acupuncturist, to no avail. 

The myelograms failed to disclose the cause of pain. 

The laminectomies only temporarily lessened the pain. 

Therefore, the rhizotomies (severance of nerves) were performed. 

Callihan's left leg is nearly useless as a result of the 

rhizotomies. Mowever, the pain remains excruciating. 

Callihan now spends ninety percent of his time lying on 

his right side on the sofa with a pillow between his legs to 

relieve the pressure on his left leg. Sitting in a chair to 

eat dinner is a major, energy-draining task. He is unable 

to enjoy any of his previously discussed physical acitivities. 

The operations have left him impotent. Mrs. Callihan must 

be present to assist him twenty-four hours a day. Tylenol 

4, Percodan and Valium allow Callihan to sleep. 

Dr. Herman Walters, Director of the Clinical Psychology 

Department at the University of Montana, examined plaintiff. 
He testified at trial that Callihan suffers significant 

reactive depression; that he does not enjoy life; that he is 

sad and very pessimistic about the future. Although it has 

since passed, he at one time had suicidal tendencies caused 

by his condition. Walters testified that Callihan's depression 

would not improve until his physical condition improved. 

Dr. Albi, Callihan's treating physician, stated, "I can 

only repeat that this man is totally beyond any rehabilitation 

physically. . ." Callihan's physical and emotional future 

is bleak. 

Joseph Kasperick is an assistant economics professor at 

Montana College of Mineral Science and Technology in Butte. 

He prepared an appraisal estimating the value in present 

dollars of Callihan's earnings to age sixty-five to be 

$271,828.39, had he not been injured in 1978. Kasperick 

also estimated the lost value in present dollars of Callihan's 

household services to be $44,309.04, making the total of 

lost earnings and services $316,137.43. Assuming the jury 

adopted Kasperick's figures in determining Callihan's total 

award of $1,031,029.00, they then awarded Callihan approximately 

$715,000.00 for pain, suffering and loss of his established 

course of life. 

Burlington Northern presented no direct evidence contradicting the above synopsis of plaintiff's case. Instead, 

defendant attempted to present its case through the crossexamination of plaintiff's witnesses. Callihan's doctors 

admitted on cross-examination that prior back injuries 

contributed to Callihan's present condition. However, no 

one was able to specifically apportion the various injuries. 

In appealing the jury verdict and judgment in favor of 

plaintiff, defendant presents the following issues for our 

consideration: 
(I) Did the District Court err in granting plaintiff's 

motion for partial summary judgment on the issue of liability 

under the Safety Appliance Act without then considering 

proximate cause? 

(2) Did the District Court err in granting plaintiff's 

motion in limine to exclude prior settlements of two prior 

injuries to plaintiff's back? 

(3) Did the District Court err in overruling defendant's 

objections to Instruction No. 17 and Instruction No. 

(4) Was the jury verdict of $1,031,029.00 the result 

of passion and prejudice? 

On cross appeal, plaintiff requests we consider the 

following issues: 

(I) Whether the District Court erred in denying plaintiff's 

motion for an order awarding prejudgment interest at the 

rate of ten percent per annum to run from the date of plaintiff's 

injury because of defendant's abuse of the judicial process? 

(2) Whether this Court should grant Rule 32 sanctions 

for filing of a frivolous appeal for purposes of delay? 

We affirm the jury verdict and judgment for plaintiff 

and deny plaintiff's requests for prejudgment interest and 

Rule 32 sanctions. 

Plaintiff's action is based upon violation by defendant 

of federal statutes known as the Boiler Inspection Act, 45 

U.S.C. §§23-34 (a portion of the Safety Appliance Act) and 

the Federal Employer's Liability Act, 45 U.S.C. §§51 et 

seq. Specifically, 45 U.S.C. S23 provides: 

"It shall be unlawful for any carrier to 

use or permit to be used on its line any 

locomotive unless said locomotive, its 

boiler, tender, and all parts and appurtenances thereof are in proper condition and 

safe to operate. . .that the same may be 

employed in the active service of such 

carrier without unnecessary peril to life 

or limb. . ." 
 his section imposes absolute liability upon any carrier 

which violates it. Lilly v. Grand Trunk Western R. Co. 

(1943), 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411. 

On the basis of this statute and the uncontested fact 

that the seat in which plaintiff, Callihan, was sitting 

broke because of improper welding, plaintiff moved for 

partial summary judgment against defendant on the issue of 

liability, pursuant to Rule 56(c), M.R.Civ.P. The motion 

was granted by order September 10, 1981, following a hearing 

on the issues. 

Defendant now objects to that order, stating that the 

District Court improperly failed to consider whether the 

absolute liability resulting from defendant's violation of 

the section, was the proximate cause of plaintiff's injuries. 

In McGee v. Burlington Northern, Inc. (1977), 174 Mont. 466, 

476, 571 P.2d 784, 790, we held: " . . .recovery for a FSAA 

violation is predicated upon a showing of: (1) A violation 

of the Act, and (2) injury proximately caused thereby." The 

order granting summary judgment pertains solely to part (I), 

Burlington Northern's violation of 45 U.S.C. S23 and the 

attendant absolute liability imposed. It is affirmed. 

It remained a function of the jury to determine whether 

that violation proximately caused plaintiff's injuries. The 

jury was so instructed. Jury Instructions Nos. 8, 9, and 

10, adequately define "proximate cause" and clearly limit 

any award of damages to damages for injuries proximately 

caused by the March 25, 1978, accident. 

The District Court issued a pretrial order January 5, 

1982, which, among other things, granted plaintiff's motion 

in limine to exclude evidence relating to plaintiff's previous 

settlement of claims with Burlington Northern. plaintiff 

contends such evidence is irrelevant to the issue before the 
jury. Defendant contends that since the jury heard evidence 

regarding those previous injuries, it should also know of 

the settlement of the claims resulting from those injuries. 

Rule 401, Mont.R.Evid., provides in part: 

"Relevant 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." 

Rule 403, Mont.R.Evid., provides: 

"Although relevant, evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the 

jury, or by considerations of undue delay, 

waste of time, or needless presentation of 

cumulative evidence." 

Here the prior settlements would show a preexisting 

condition. However, the fact of a preexisting condition was 

conceded by plaintiff. Compromise settlements for previous 

injuries do not necessarily reflect the seriousness of the 

injury and may confuse the jury. Here the trial court found 

that any probative value was outweighed by possible prejudice. 

The trial court's discretion should not be disturbed. Cech 

v. State of Montana (1979), Mont. , 604 P.2d 97, 36 

Next, defendant objects to two instructions given to 

the jury at the close of the trial. Instruction No. 17 

states: 

"Where a pre-existing condition exists which 

has been aggravated by the accident, it is 

your duty, if possible, to apportion the 

amount of disability and pain between that 

caused by the pre-existing condition and 

that caused by the accident. But if you 

find that the evidence does not permit such 

an apportionment, then the defendant is liable 

for the entire disability." 

Defendant contends that the last sentence in this instruction 

is an incorrect statement of law. Although this question 

has not previously been before this Court, we find analogous 
case law persuasive. In Azure v. City of Billings (1979), 182 

Mont. 234, 596 P.2d 460, we stated: 

". . .to impose upon the plaintiff the sometimes impossible burden of proving which 

tortious act did which harm, would be an expression of a judicial policy that it is 

better that a plaintiff, injured through no 

fault of his own, should take nothing simply 

because he could not prove which tortious 

act caused which harm. We believe on the 

other hand, that where the tortious act is 

established, it is better that the tortfeasor 

should be subject to paying more than his 

theoretical share of the damages in a situation where the tortious conduct has contributed to the confused situation making it 

difficult to prove which tortious act did 

the harm." 596 P.2d at 470-471. 

Azure involved two tortfeasors. However, the same 

rationale applies in this case. Plaintiff's injuries are 

the result of three different accidents over a span of 

twenty-four years. Plaintiff should not go uncompensated 

should the evidence not permit an apportionment of injuries 

and damages. See also Restatement of Torts, Second, Section 

461 (comment a), p. 502. The giving of Jury ~nstruction No. 

17 is affirmed. 

Defendant objects to Instruction No. 18 which states: 

"You are instructed that the defendant 

is liable to the plaintiff for the results of medical treatment even where 

such treatment is itself negligent, so 

long as the plaintiff exercised reasonable care in his selection of a physic ian. I' 

This instruction is clearly a correct statement of law. See 

Restatement of Torts, Second, Section 457 (comment a), p. 

Defendant objects to the instruction because the negligence 

of plaintiff's doctors is not an issue. However, the jury 

was instructed at the start of the trial that: "You are 

permitted to draw from facts which you find have been proved 
such reasonable inferences as seem justified in the light 

of your experience." Transcript of proceedings, p. 111. 

 he jury was then told of seven unsuccessful operations and 

informed that the four rhizotomies resulted in a total 

inability of plaintiff to use his left leg. Fromthose 

facts, the jury might infer negligence on the part of the 

doctors. A reasonable question to arise from that inference 

is "to what extent is the defendant liable for the results 

of the negligent treatment?" Instruction No. 18 is proper 

under these facts. 

Following the jury verdict for plaintiff, defendant 

moved for a new trial, alleging the verdict was marked by 

passion and prejudice. Defendant specifically complains of 

the $715,000.00 portion of the verdict awarded for pain, 

suffering and loss of established course of life. 

The record shows plaintiff's life largely consists of 

experiencing intractable pain. Plaintiff cannot participate 

in the outdoor activities which he loved. He can no longer 

be an active, productive member of his family. Nor is he 

able to enjoy a physical relationship with his wife. Defendant's 

claims investigator, William J. Burke, stated in his deposition 

that in his opinion, Mr. Callihan suffered more than any 

other claimant with whom Mr. Burke had come in contact 

during his thirty-four year career as a claims investigator. 

Pain can constitute the most devastating loss suffered 

by an injured person; Greatest happiness is found in sharing 

family love, knowing and feeling the beauty of nature, and 

in laughter, quiet reflection, and experiencing inner peace. 

When pain destroys these richest of life's treasurers, the 

quality of life has been significantly diminished. The evidence 

here supports the award made. 
On cross-appeal, plaintiff requests we award prejudgment 

interest at the rate of ten percent per annum to run from 

the date of plaintiff's injury, March 25, 1978. Although we 

are well aware of the policy reasons for an award of prejudgment 

interest, plaintiff's request is denied. Section 27-1-211, 

MCA, states in relevant part: 

"27-1-211. Right to interest. Every person 

who is entitled to recover damages certain 

or capable of being made certain by calculation and the right to recover which is vested in him upon a particular day is entitled 

also to recover interest thereon from that 

day. . ." 

This statute allows interest only from the date of judgment, 

as that is the day the damages are capable of being made 

certain. Ryan v. Ford Motor Co. (D.C. Mont. 1971), 334 

F.Supp. 674; Wyant v. Dunn (1962), 140 Mont. 181, 368 P.2d 

The issues presented on appeal are not frivolous. Plaintiff's 

request for Rule 32 sanctions is denied. 

The judgment of the District Court is affirmed and 

plaintiff's requests denied.