No. 12639 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1974

STEPHEN T. BUSH, Plaintiff and Respondent,

ALBERT D. WARDELL CONTRACTOR, INC., A CORPORATION,Defendant and Appellant.

Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: ForAppellant: Clayton R. Herron argued, Helena, Montana For Respondent: Robert F. Swanberg argued and Arthur P. Acher argued,

Helena, Montana

Filed: A : 

### '974 \JQV 

### 3 - - Submitted: September 17, 1974 Decided : 

### NOV

### 13 1574Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This appeal arises from a personal injury action wherein plaintiff Stephen T. Bush was awarded a $50,000 judgment against defendant Albert D. Wardell Contractor, Inc. Defendant appeals from thejudgment and the denial of 

### itsmotions for a directed verdict, judgment notwithstanding the verdict, and new trial. The case results from an accident which occurred on July 9, 1970, atthe construction siteof the Colonial Hilton Convention Center inHelena, Montana. Plaintiff was an employee of Lowe Construction Company, the general contractor of the project. Defendant was the subcontractor engaged by Lowe Construction Company to do the masonry work. The plans called for the complex tobe built as three separatebuildings--the convention center and two wings which would house the sleeping accomodations. The two wings were to be separated from the center by one inch of free space, a
measure designed toreduce damage inthe event of an earthquake. It was at the point where the center was toparallel one of thewings that the accident occurred. The wings had been constructed first, and constructionhad begun on thebuilding that
was tobe the convention center. At the point where the incident occurred, there were tobe three walls raised in positions roughly represented by the following diagram:

4 /--sleepingquarters


### 8" block wall 4"masonry wall which fell 

### 6" studwall convention center

# c d 

# dThe eight inch block wall had alreadybeen completed and formed the end wall of one of thewings. During construction, metal tieshad been inserted in the eight inch block wall with the intent that they would be joined to the four inchwall when itwas built as a means of stabilizingthe latterwall. However, the architect's plans required that therebe no tiesbetween the two walls. Defendant and the general contractor
were concerned about this requirement, since thewall would be unstable unless supported by some means. After much discussion, the general contractor told defendant tobuild the four inchwall using the stablizing ties, although the number of ties tobe used was not specified. Defendant then constructed the four inchwall to a height of eighteen feet, using some of the tieswhich were protruding from the eight inch wall, but bending a majority of them over rather than attaching them.Although the plans called for thewall toultimately reach
a height of twenty-six feet and no direction had been given as towhether it should be built inentirety or in stages, defendant's
crew left the siteafterraising thewall to eighteen feet. The four inch wall then stood forapproximately a week before the general contract~r 

## 's crewsmstructed and erected several panels of the six inch studwall next to it. The stud wall panels were constructed on the ground and then raised to their final position within one-half inch of the four inch wall. 

### On the afternoon of the accident, two of the panels had been raised and positioned several hours before plaintiff began hand tightening nuts on thebolts which anchored the panels to the floor. Ashe was doing this the portion of the four inchwall which extended above the studwall collapsed, showering plaintiff with bricks and mortar. The injuries he sustained are those for which compensation was sought and granted in the district court.Defendant appeals the verdict and judgment here, raising nineteen issues in 

### its appellate brief. For purposes of this opinion, the questions raised in those nineteen issueswill be considered as they relate to the four general issues: 1. Was the defendant negligent? 2. Was the defendant's negligence, ifany, the proximate
cause of plaintiff's injuries? 3. Were the damages which thejury awarded supported by admissible evidence? 4. Should the district court have granted a directed verdict,


### a judgment notwithstanding the verdict, or a new trial? plaintiff's complaint alleged four separate grounds of negligence: (1) Failure toattach the stabilizingties; (2) Failure tobrace thewall by some external means; (3) Erecting thewall to

### a height of eighteen feet instead of doing it in stages as the interior construction progressed; and (4) Failure towarn plaintiff or the general contractor of the dangerous instabilityof the wall. Defendant denies that any of these counts constitutenegligence. Defendant argues that some of the tieswere used, even though the architect's plans required that none be installed. 

### It cites 13AmOJur.2d, Building and Construction Contracts, 

### 5 140, for the proposition that defendant's following of the plans relieved it of allliability. The pertinent portion of that section reads:

'I* 

# ** a contractor followine ~lans and
(~m~hasis added). - However, cases footnoted in support of that proposition clearly establish that the subcontractor is still liableunless a contractor of average skilland ordinary prudence would have followed those specifications, Ryan v. Feeney & S.Bldg. Co., 239 N.Y. 43, 145N.E. 321, 41

### A.L.R. 1; Tipton v. Clower, 67 

### N.M. 388, 356 P.2d 46. Since allthe persons involved in this incidentagreed that an unsupported, four inchwall of thisheight would be dangerously unstable, the evidence atleast created a jury question as towhether a reasonably prudent and skillfulcontractor would have acted asdefendant did. The same considerationswould apply to defendant's failure to externallybrace the wall, and to defendant's one-step construction toa height of eighteen feet. It 

### is true thatno one told defendant touse braces or toproceed in steps, but thejury properly could determine whether a reasonable man with defendant's knowledge of thewall's instabilitywould have taken such precautions. Defendant also contends therewas no duty towarn since the general contracor was on the sitethroughout the time thewall
was under construction. It issuggested the general contractor knew, or should have known, that the tieswere not used. However, the general contractor's foreman testified he thought the ties had been used, and 

### a reasonable inspectionwould not have proved otherwise. Again, there was evidence on which a jury might reasonably conclude that defendant should have warned others, but failed todo so. Since it appears from the record that a jury could reasonably conclude that defendant was negligent in some or allof the alleged acts or omissions, we then must explore the contentions that therewere intervening causes which relieved .defendant of liability for 

### itsnegligence. The first suggestion 

### is that the general contractor accepted the completed wall with knowledge of itsunstable condition, and therefore the negligence which proximately caused plaintiff's injurywas the general contractor's failure to provide forhis employees' safety. If those were the factshere, defendant's contentionwould have some merit. As suggested by defendant, the case of Sumner
v. Lambert, 96 Ohio App. 53, 121N.E.2d 189, 198, would then be close tothis case on 

### its facts. However, aspreviously discussed, therewas evidence theunstable condition of thewallwas unknown to anyone but defendant. This initselfwould make Sumner inapplicable, for that opinion clearly states: "In the case atbar, it 

### isnot alleged that therewere any hidden defects 

### in the excavation, known to the defendants and unknown to

# * ** [decedent]". Furthermore, there are factual questions in the instant case


### as towhether the wall was completed (even defendant testified that it was not) or as towhether the general contractor accepted thewall. There clearly isnot sufficient evidence towarrant
a reversal on this point. The other intervening cause suggested by defendant 

### is that the stud wall allegedly struck the masonry wall during the process of raising the former to

### itsposition. Plaintiff produced witnesses who participated in the raising of the wall who testified that the studwall didnotstrike the masonry wall. Defendant elicited testimony from after-the-fact witnesses to the effect that the physical evidence clearly showed that the studwall struck the masonry wall. Defendant would have us prefer the opinions based on the physicial evidence over the testimony of eyewitnesses. While it 

### is true thatundisputed physical facts control over testimony (Hayward v. Richardson Const. Co., 136 Mont. 241, 347 P.2d 475, 77 ALR2d 1144), that control is effective onlywhen the physical facts admit of only one interpretation. The physical fact involved here 

### is that the masonry wall fractured and fell atapproximately the level of the top of the stud wall. However, the evidence also indicates that the masonry wall stood for several hours after the stud wall was raised. Furthermore, the evidence might be interpreted tomean that the stud wall prevented the masonry wall from collapsing ata lower level by acting
as a brace against that portion of thewall. Again, it was a question for the jury to determine. Having determined therewas sufficient evidence to support
a jury finding of liability, we look to the admissibility of the evidence which the jury used to arrive 

### ata damage figure. Defendant's challenge to the damages isthat the court allegedlyadmitted a doctor's opinion which was based, at least inpart,
on the plaintiff's subjectivecomplaints. It is true that the testimony objected towas that of a doctor who treated the plaintiff atthe time of the accident and then did not see him again until shortlybefore the trial. However, the record indicates that the doctor's opinion of the degree and permanency of plaintiff's injurieswas given inresponse toa question asking him todisregard the plaintiff's subjectivecomplaints. The doctor's initial treatment of the plaintiff, his subsequent examination, and his reading of the reports of other treating physicians surely qualified him to give such an opinion without reference tothe subjective complaints. Also thejury was cautioned not to consider any testimony as tothese subjective complaints. We findno error here. Defendant also argues that evidence and instructions relating tomortality and annuity tables should not have been given to the jury. The objection isthat even atthe time of trial plaintiff

was making more money than he was atthe time of the accident and therefore his earning capacity had not been impaired by his injuries. While the use of such tables clearly shows that thejury considered plaintiff's loss of future earnings, we find that such consideration was warranted by the evidence. The construction job which plaintiff held when he was injuredwas only summer employment to help finance hts college education. By the time of the trialhe had completed the necessary education tobecome a teacher and was employed in that capacity. His earnings as a teacher were higher than his earnings on the constructionjob. Were this the only evidence, there might be some merit to defendant's contention. However thejury was alsoaware that teachers routinely seek other employment during the summer when school 

### isnot in session. It alsoheard testimony that plaintiff would not be able to coach any athletic teams, an activity which produces income in addition to the regular teaching salary.These factors, combined with the limitations on 

## lai in tiff's enjoyment of his previously athletically oriented lifeindicate the introduction of the tableswas clearly appropriate. Bracy
v. Great Northern Railway Company, 136Mont. 

### 65, 69, 

### 343 P.2d 

### 848. The final question then iswhether the court should have directed a verdict, granted ajudgment notwithstanding the verdict, or granted a new trial. 

### As discussed heretofore, we have found no error in the legal theories involved here. Those theories were reflected in the instructions given to thejury, and we find those instructions tobe appropriate. Therefore, finding no error of law, and substantial evidence supporting the verdict, we affirm thejudgment.

Justice

We Concur: