NO. 84-07 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

LOUIS J. DALLAS, 

Plaintiff and Respondent, 

-vsBURLIfJGTON NORTHER'X , IEJC . , 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable H. William Coder, Judge presiding. 

COUNSEL OF PACORD: 

For Appellant: 

I<. Kent Koolen argued, Billings, Montana 

For Respondent: 

Terry Trieweiler argued, Whitefish, Montana 

-- 

Submitted: September 27, 1984 

Decided: October 15, 1984 

Filed: dlb; i i I984 

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

the Court. 

Louis Dallas brought an action in the Eighth Judicial 

District Court pursuant to the Federal Employers' Liability 

Act (FELA) seeking damages for personal injuries sustained 

during the course of his employment with Burlington Northern, 

Inc. (BN) . Following jury trial a verdict was returned in 

favor of plaintiff in the amount of $477,000. Burlington 

Northern's motion for a new trial was denied. This appeal 

followed. We affirm. 

Louis Dallas began working for BN in 1971 as a switchman 

and brakeman. In 1975 he was promoted to locomotive 

engineer. 

On October 18, 1980, Dallas was operating a freight 

train from Glasgow, Montana to Minot, North Dakota. He 

stopped the train on a siding at Blair, Montana to permit a 

westbound train with a superior right to pass. While stopped 

on the siding, Dallas decided to use the rest room 

facilities. 

The toilet compartment, located in the nose of the 

locomotive two feet below the floor level of the cab, was 

entered through a low doorway on the front wall of the cab. 

The stair-step into the compartment was an iron box which 

also served as a toolbox. The toolbox structure, two feet 

long by one foot high, was secured to the floor of the 

compartment by spot welds. 

Dallas claims that as he stood with both feet on the 

step his weight transferred to the front causing the back to 

come completely loose thereby tipping the step forward. When 

the step tipped forward Dallas testified that he fell against 

the side of the locomotive injuring his left shoulder, lower 

neck and back and left knee. 

Dallas stated that after his fall, the step was 

completely on its side revealing the broken spot welds. The 
break in the welds was confirmed by an inspection conducted 

by the mechanical department when the locomotive arrived at 

Minot, North Dakota. One of the three inspectors who tested 

the step in Minot, testified that, despite the broken welds, 

he was unable to cause the step to tip forward as described 

by Dallas. 

There were no eye witnesses to Dallas' accident other 

than Dallas himself. A witness statement was taken from the 

locomotive fireman, James Morehouse, which indicated that 

Morehouse did not see Dallas fall, but heard "banging and all 

kinds of commotion . . . " Morehouse died in an off-duty 

accident shortly after Dallas' accident, and his unsworn 

statement was received in evidence. 

Following the accident, Dallas returned to Glasgow, 

Montana, acting as fireman instead of engineer because of 

soreness resulting from his fall. On October 20, 1980, a 

physician's assistant at the Smith Clinic in Glasgow examined 

Dallas for his injuries. He found tenderness along the left 

paravertebral muscle, diagnosed a muscle spasm and prescribed 

rest, heat and relaxants. 

When his condition did not improve Dallas was referred 

to Dr. Peter Teal, an orthopedic surgeon in Billings, 

Montana. On November 4, 1980 Dr. Teal diagnosed an acute 

strain of the upper thoracic and lower cervical spine and 

prescribed physical therapy and muscle relaxants. 

Dallas sought a second medical opinion from Dr. James 

I,aidlaw, an orthopedic surgeon, in Kalispell, Montana. He 

continued under Dr. Laidlaw's treatment of physical therapy, 

medication and cervical traction until the latter part of 

1981. Dr. Laidlaw referred Dallas to Dr. Schimpff, a 

neurologist, who cared for Dallas from November, 1981 to 

June, 1983. Dr. Schimpff ' s recommended course of treatment 

was intermittent use of anti-inflammatory agents, 

intermittent physical therapy, and curtailment of physical 
activities. Dr. Schimpff was unable to pinpoint a single 

basis for plaintiff's complaints, but offered three possible 

diagnoses: either a herniated cervical disc; a thoracic 

outlet syndrome; or a chronic strain. 

No myelogram nor surgical procedures were performed in 

connection with this injury. Dallas was hospitalized for 

injuries sustained in a head-on automobile accident on August 

18, 1982, but never was admitted to a hospital as a result of 

the accident which is the subject of this appeal. 

Dallas presented evidence that he was only able to work 

about 70% of the time without aggravating his symptoms. He 

claimed a loss of future earning capacity equivalent to a 30% 

reduction in his full-time wages. An economist testified 

that Dallas' past wage loss was approximately $62,000 and his 

loss of future earning capacity was $415,000. 

The trial court granted a partial summary judgment in 

favor of Dallas finding that BN had violated the Federal 

Boiler Inspection Act. The issues of causation and damages 

were submitted to the jury. A verdict was returned which 

awarded $477,000, a figure which equals the sum of past lost 

wages And loss of future earning capacity as reflected in the 

economic projection of plaintiff's expert. 

Burlingtion Northern presents the following issues on 

appeal : 

1. Whether the trial court erred in granting Dallas' 

motion for partial summary judgment on the violation of the 

Federal Boiler Inspection Act? 

2. Whether the medical testimony offered by Dallas' 

physicians was sufficiently certain to be admitted and 

sufficiently probative to carry plaintiff's burden of proof 

on the medical issues? 

3. Whether the trial court erred in refusing to 

instruct the jury regarding the effect of income taxes on the 

damages claimed by Dallas and awarded by the jury? 
4. Whether the trial court erred in permitting Dallas 

to present testimony of a previously unidentified rebuttal 

witness? 

5. Whether the verdict was excessive as a matter of 

law? 

Summary judgment is not a substitute for trial and can 

only be granted when the record discloses no genuine issue of 

material fact entitling the moving party to a judgment as a 

matter of law. Hansen v. Transamerica Inc. Co. (1978) , 175 

Mont. 273, 573 P.2d 663. 

Here the evidence clearly shows that the welds were 

broken. There is a conflict in the evidence respecting 

whether the breaking of the welds would cause the step to tip 

thereby causing the accident in question. The question 

becomes whether the Federal Boiler Inspection Act is violated 

as a matter of law given this factual record. The Act 

provides in relevant part that: 

"It shall be unlawful for any carrier to use or 

permit to be used in its line any locomotive unless 

said locomotive, its boiler, tender, and all parts 

and appurtenances thereof are in proper condition 

and safe to operate in the service to which the 

same are put, that the same may be employed in the 

active service of such carrier without unnecessary 

peril to life or limb, and unless said locomotive, 

its boiler, tender, and all parts and appurtenances 

thereof have been inspected from time to time in 

accordance with the provisions of sections 28 to 30 

and 32 of this title and are able to withstand such 

test or tests as may be prescribed in the rules and 

regulations as may be hereinafter provided for." 

45 U.S.C. section 23. 

Plaintiff's action was instituted under the Federal 

Employers' Liability Act, (FELA), 45 U.S.C. section 51, which 

provides in relevant part that: 

"Every common carrier by railroad while engaging in 

commerce between any of the several States and 

Territories . . . shall be liable in damages to any 

person suffering injury while he is employed by 

such carrier in such commerce . . . for such injury 

or death resulting in whole or in part from the 

negligence of any of the officers, agents, or 

employees of such carrier, or by reason of any 

defect or insufficiency, due to its negligence, in 

its cars, engines . . . or other equipment." 
The United States Supreme Court discussed absolute 

liability features of section 23 and its interrelation with 

section 51, in Lilly v. Grand Trunk Western R. Co. (19431, 

317 U.S. 481, 485-86, 63 S.Ct. 347, 87 L.Ed. 411. The Supreme 

Court said: 

"Negligence is not the basis for liability under 

the Act. Instead, it 'imposes upon the carrier an 

absolute and continuing duty to maintain the 

locomotive, and all parts and appurtenances 

thereof, in proper condition, - and safe to 

operate . . . without unnecessary peril to life or 

limb.' (citations omitted.) Any employee engaged 

in interstate commerce who is injured by reason of 

a violation of the Act may bring his action under 

the Federal Employer's Liability Act, charging the 

violation of the Boiler Inspection Act (citations 

omitted.) The Act, like the Safety Appliance Act, 

is to be liberally construed in light of its prime 

purpose, the protection of employees and others by 

requiring the use of safe equipment. I' (Emphasis 

added. ) 

We must engage liberal construction in favor of 

protecting the employees. We construe the carrier's 

obligation under the Act to be dual. The carrier must 

maintain locomotive parts and appurtenances in proper 

condition - and must maintain the locomotive in such a 

condition as to prevent unnecessary peril to life or limb. 

The railroad in this case was obligated under the Act to 

perform both duties and its failure in either regard rendered 

it in violation. Here the undisputed facts show that the 

spot welds were broken; therefore parts and appurtenances 

were not in proper condition. The trial court was entitled 

to find a violation of the Act from the existence of broken 

spot welds without more. 

The trial court properly left the question of causation 

to the jury. The jury was correctly instructed that BN 

violated the Act but before the jury could find for the 

plaintiff they must find that the defective welds caused an 

accident injuring Dallas. We find the trial court properly 

interpreted and applied the federal law. 
BN contends that plaintiff's medical evidence was not 

sufficiently certain to be admissible. BN further argues 

that the medical testimony is so speculative that it failed 

to provide a basis for consideration of permanent impairment 

to earning capacity. 

Dallas primarily relied upon the testimony of Dr. Peter 

V. Teal, the orthopedic surgeon, and Dr. Robert D. Schimpff, 

the neurologist. 

The thrust of BN's argument is that these two doctors 

were unable to pinpoint the exact etiology of Dallas' injury. 

Certainly the record does not support a finding that Dallas 

suffered from a herniated disc. On cross-examination, Dr. 

Teal testified as follows: 

"Q. So it is not your opinion then, to any 

reasonable degree of medical certainty, that his 

problems, his complaints are due to an injury of 

the disc in the spine? 

"A. No, I cannot say with any reasonable degree of 

medical certainty that he injured his disc in his 

spine. " 

Dr. Schimpff testified that Dallas' injury was one of 

three things: (1) a soft tissue injury (2) a thoracic 

outlet syndrome (3) a herniated disc. Dr. Schimpff was 

unable to determine which of the three conditions was 

producing symptoms. 

There is abundant medical testimony in the record to 

support Dallas' claim of injury. That claim does not fail 

because of the doctors' uncertainty about the type of injury 

involved. Many of the symptoms produced by the three 

described etiologies are similar. The doctors agreed that 

the plaintiff was injured as the result of the trauma 

suffered in the accident. That is sufficient. 

BN contends there is insufficient evidence of 

permanency. With respect to evidence of permanent injury the 

following questions, objections and answer are taken from the 

record: 
"Q. Do you feel that his present condition then 

and restrictions from that condition are permanent? 

"MR. KOOLEN: Objection is leading. 

"In your opinion, are then his present limitations 

permanent? 

"MR. KOOLEN: Objection. 

"THE COURT: I will let him answer that. 

"Q. Let me re-ask the question. Based upon your 

examinations and treatment of Mr. Dallas over the 

length of time that you have described, in your 

opinion that his condition is stabilized, do you 

have an opinion whether his condition is going to 

get any better in the future? 

"A. Based on the fact that I have not seen many 

changes in his condition over the last many months, 

I don't see any indication, any medical indication 

that would suggest that he would enter into a 

recovery period. Being an optimist as I am, I 

would hope that he would enter into a recovery 

period but I think we have adopted measures which 

allow him to exist productively although with 

intermittent discomfort and I don't really expect 

that to change." 

We agree with BN that the answer given by Dr. Schimpff 

is not strong and clear. This Court has generally adhered to 

a test of "reasonable medical certainty" as the basis for 

admissibility although we do not require of doctors the same 

strictness in testifying that was once required. See 

Stordahl v. Rush Implement Company (1966), 148 Mont. 13, 417 

P.2d 95. Although we still formally adhere to a "reasonable 

medical certainty" standard, the term is not well understood 

by the medical profession. Little, if anything, is "certain" 

in science. The term was adopted in law to assure that 

testimony received by the fact finder was not merely 

conjectural but rather was sufficiently probative to be 

reliable. We are striving for, what in fact, is a 

probability rather than a possibility. Our evidentiary 

standards are satisfied if medical testimony is based upon an 

opinion that it is "more likely than not. " We find that Dr. 

Schimpff's testimony regarding "permanency" was sufficient 

for the jury to find it probable that Dallas' present 

symptomatic condition would not improve during his lifetime. 
BN contends that the trial court erred in refusing to 

instruct the jury on the nontaxability of any award made by 

the jury. BN relies upon the United States Supreme Court 

case of Norfolk and Western RR v. Liepelt (19801, 444 U.S. 

490, 100 S.Ct. 755, 62 L.Ed.2d 689. The Supreme Court held 

it was reversible error to fail to instruct on the 

nontaxability of the award where a jury, in a wrongful death 

case, awarded more than twice the amount plaintiff's proof 

showed for loss of support. The court was convinced that the 

jury had added to the award an amount for claimant to be able 

to satisfy an income tax obligation on the award. The court 

said: 

"' [t]o put the matter simply, giving the 

instruction can do no harm, and it can certainly 

help by preventing the jury from inflating the 

award and thus overcompensating the plaintiff on 

the basis of an erroneous assumption that the 

judgment will be taxable. ' I' (citations omitted. ) 

444 U.S. at 498. 

In Flanagan v. Burlington Northern, Inc. (8th Cir. 

1980), 632 F.2d 880, Chief Judge Donald P. Lay, writing for 

the Court, distinguished Flannagan from Liepelt. In 

Flannagan the jury, unlike the jury in Liepelt, had not 

awarded an amount clearly in excess of plaintiff's proven 

damage figure. Judge Lay said: 

". . . the prejudicial effect of a failure to give 

a nontaxability instruction should be decided on 

the existence of evidence that the jury did, in 

fact, operate under a false impression of the tax 

laws." Flanaqan, 632 F.2d at 890. 

In addressing the Liepelt decision, the opinion said: 

'I. . . The Liepelt jury awarded the plaintiff 

$775,000 whereas the plaintiff's own economist 

testified to lost earnings of only $302,000. This 

large disparity between the evidence and the 

verdict greatly influenced the Supreme Court in 

deciding that the failure of the trial court to 

give a nontaxability instruction was prejudicial 

error." - Id. 

In this case the jury awarded $477,000 which was the 

exact figure projected by the economist for lost wages and 

loss of earning capacity. This jury clearly did not award a 
sum for some future tax obligation. Therefore, any error in 

failing to give a nontaxibility instruction is harmless. 

BN claims error in admitting rebuttal testimony from a 

witness not noticed. However BN produced a witness, not 

previously noticed as an expert, to testify that freight 

locomotives do not vibrate unduly. Such testimony was 

offered to refute plaintiff's claimed inability to work. To 

rebut this plaintiff offered testimony from a witness not 

previously disclosed. The testimony vividly demonstrated the 

vibration characteristics of a freight locomotive. The 

testimony was rebuttal. No statute or rule mandates notice. 

There was no court order requiring notice. Notice was not 

required. 

BN also argues that the testimony offered by the 

rebuttal witness should have been introduced in plaintiff's 

case in chief. Admission of rebuttal testimony invokes the 

discretion of the trial court. McGee v. BN (1977), 174 Mont. 

466, 571 P.2d 784, 792. We find no abuse of discretion in 

this case. 

Finally, BN argues the verdict was excessive. Dallas 

testified that his injury and consequent pain reduced his 

mileage by 30%. Locomotive engineers are paid by the mile. 

Rased upon this testimony an economist projected loss of 

future earning capacity at $415,000. Lost earnings to date 

of trial were $62,000. The total was $477,000, the exact 

amount of the jury's award. 

The award is large considering that the medical 

testimony only supports a permanent soft tissue injury in the 

neck and back. However, the testimony showed that Dallas 

earned $1.08 per mile and, without injury, averaged more than 

4,000 miles per month. An annual income of $50,000, 

diminished by 30%, represents a very significant loss of 

earning capacity. The economist's projection was based upon 

this evidence a.nd supports the jury's award. 
The only uncontroverted fact, the existence of defective 

spot welds, was removed from the jury. All controverted 

facts were submitted to the jury under proper instructions. 

The jury resolved nearly all factual controversies in favor 

of Dallas which they were entitled to do. We find no error. 

The judgment in favor of Dallas is 

We concur: 

v-4& 

Chief Justice -