No. 81-106 IN TEE SUPREME COURT OF THE STATE OF MONTANA 1982

VIOLETTE MOEN, Individually and as PersonalRepresentative, Plaintiff and Appellant,

PETER KIEWIT & SONS' CO., a Corp., Defendant and Respondent.

No. 82-29 VIOLETTE MOEN, Claimant and Ap2ellant,

DECKER COAL COMPANY, Employer, and ELQLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Defendant and Respondent.

Ai~pealsfrom: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone,The Honorable William J. Speare,Judge presiding. Also, Workers' Compensation Court,Hon. Timothy Reardon, presiding. Counsel of Record: ForAppellant: Hoyt & Trieweiler, Great Falls,Montana For Respondent: Crowley,Haughey,Hanson, Toole & Dietrich; L. Randall Bishop, Billings,Montana

Submitted: July 9, 1982 Decided: December 13, 1982

Filed: 

## 4EC13

# 1982Mr. Justice Fred J. Weber delivered the Opinion of the Court.

These cases have been consolidated for consideration,

as both cases involve claims for an employee's death by heart attack. We affirm the lower courts in both cases. In Case I,Supreme Court No. 82-29, claimantMoen appeals from the order of the Workers' Compensation Court, granting defendant'smotion to quash her petition for a hearing. Claimant Moen presents two issues to this Court: (1) Whether defendant's motion to quash was procedurally acceptable. (2) Whether newly discovered evidence supports Violette Moen's request for a new hearing. The defendant argues that this case is res judicata. In Case 11, Supreme CourtNo. 81-106,plaintiff Moen appeals from an adverse jury verdict in the Thirteenth Judicial District Court,Yellowstone County, in her negligence action for the wrongful death of her husband. Moen raises the following issues for review: (1) Did the District Court err by not allowing Mike Moen's widow to testify regarding her telephone conversation with Mike Moen the night before his death? (2) Did the District Court err by allowing James McCarthy to testify regarding what Mike Moen did not say before Moen left for the hospital? (3) Was the jury properly instructed? Defendant cross-appeals,contending that the ~istrict Court erred in not granting its motion for directed verdict. Virgil (Mike)Moen was 53years old and had worked as

an oiler for Decker Coal Company for three years,when, on Saturday,November 1, 1975, an overtime day, he suffered aheart attack which led to his death in the Sheridan, Wyoming, hospital, early the nextmorning. Moen had stayed in Decker Friday night instead of returning to Great Falls, as he usually did, to spend the weekend with his family. On Saturdaymorning, shortly after 8:00 a.m. at the request of his supervisor, Delmar Rradway, Moen returned to the Deckermine to work overtime steam cleaning the engines and transmissions of a number of large Terex scrapers. There were nine scrapers,but two were being repaired, and the testimony conflicts as to whether Moen cleaned seven or nine. Because the morning was frosty, Moen was not able to start steaming until about 10:00 a.m. Co-workers testified that a conscientious worker, such as Moen was admitted to be, ordinarily would take 30 to 

### 45minutes to clean each scraper,yetMoen was finished by noon. According to Bradway,who was the only employee working with Moen in the afternoon, the twomen worked from about 1:00 to 3:30 p.m. steam cleaning the batteries and radiators of the same scrapers, with Moen driving the pickup upon which the steamer rode, and Bradway, the supervisor,doing the steaming itself. Other workers declared they had never

seen Bradway do dirty work while a worker sat in the truck and that itwas contrary to union policy and rules. About 3:30 p.m., as Bradway was leaving,he noticed Noen standing beside the raised hood of his pickup; Bradway asked if anything was wrong. He noticed that Moen was changing oil, and when Moen answered no, he was all right, Bradway departed. Bradway also testified thatMoen never complained of pain or exhibited any signs of illness. Moen's time card for November 1,1975, is signed; the space wherein an employeemust indicate an on-shift accident is marked "no"and initialed with Moen's initials.

### JamesMcCarthy, a close friend and co-worker of Moen's atDecker Coal, also runs the Decker store and post office,

some fivemiles below themine. He testified that about 3:50 or 4:50 

### p.m., Moen appeared at his store and the two

men talked about going into town (Sheridan, Wyoming, about 30miles away). McCarthy stated that he excused himself to continue working on a pump in the cellar, but Moen sought him out: "Therewas a knock on the door, and Icame up from the cellar. And he askedme if I would drive him to town; never again stating therewas anything the matter with him but he justdidn't feel that--you know hewanted to go to town. I says, 'I'llbe with you in about ten minutes, as soon as I put the web back into thepump.' So itmust havebeen about 20

### minutes later that I came up. Never even checked onhim,went into the bathroom and cleaned up and came out to go with him, and he was gone. "9. 

### The last time thatyou sawhim did he appear to you to be seriously ill? "A. 

### No. Iwill say this,he was pale. In otherwords, he didn't look like the regular Mike full of vim and vigor." Moen drove himself to Memorial Hospital in Sheridan, arriving about 5:30 p.m. He told the attending physician that at about 2:00 p.m. that day he had begun to feel severe pain in the left side of his chest, with pain radiatingdown his left arm. The pain increased in intensity for about 15 

### minutes, then continued at about the same intensity. Moen's conditionwas diagnosed as acute interior myocardial infarction. Treatment failed to relieve Moen's pain, which continued severe until, after administrationofmorphine, he fell asleep at about 10:OO p.m. At about 2:30 a.m., nurses noted a "dusky" coloring often associated with "pump failureN-- inability of the heart to perform due to the extent of muscle tissue impairment--and, following a breakdowr,of the normal sinuspattern, Moen died at 3:35 a.m.Mike Moen's widow, Violette Moen, filed a claim for workers' compensation on September 27, 1976. Decker Coal Company denied the claim on the grounds that there was no causal relationship between Mike Moen's employment and his fatal heart attack. Following hearing and briefing, on January 29, 1979, the Workers' Compensation Court found Decker Coal Company liable to Mike Moen's widow for benefits. During that trial in the Workers' Compensation Court, Delmar Bradway was asked whether or not the work involved in steam cleaning equipmentwasmore or less taxing than an oiler's ordinarywork. Bradway replied: "A. It is easier than the regular ordinary duties in this case because he didn't have to climb around or do anything like that. 

# .." Somewhat later in that trial, the following dialogue occurred: 

### "Q. During that day [November1, 19751 did you seeMike do any running? "A. No, I never noticed any. 

### "Q. Any climbing? "A. NO, he was dcing the steaming because the transmissions are low and their engines are fairly lowbecause he was doing the steaming from the ground,and to cover that many engines in this time, why you just can't do too good a job on anything else. "Q. Was there any occasion for him to climb stairs? '*A. None.

### " This Court reversed on appeal, holding that claimant had notmet her burden of proving Mike Moen's death had been the result of "atangible happening of a traumatic nature from an unexpected cause or unusual strain." Moen v. Decker Coal Co. (1979), F4ont

# . , 604 P.2d 765, 36 St.Rep. 2220.On January 23, 1978,Violette Moen brought a negligence action against Peter Kiewit and Sons (Kiewit), seekingcompensatory and punitive damages for the death of her husband. Kiewit is a large,Wisconsin-based corporation, which managed the Decker Coal Co. mine and provided certain supervisory personnel at the time of Mike Moen's death. Violette Moen charged that Kiewit, through its supervisor, Bradway, deliberately refused to provide first aid and medical care to Mike Moen when he was having a heart attack. She charged that, instead, the Kiewit supervisorkeptMike Moen working and compelled him to drive himself to the hospital, and that such negligencehad caused Mike Moen suffering,and led to his death. A jury trial resulted in a verdict for Kiewit on January 29, 1981. Plaintiff Moen appeals. Certain testimony of Delmar Bradway in the negligence trial differed from his testimony in the original trial in the Workers' Compensation Court. In the earlier trial, as noted above, Bradway stated thatMike Jloen's regularwork as

an oiler was more difficult than steam cleaning because steam cleaning required no climbing around. The second action against Peter Kiewit (Bradway's employer) included the following testimony by Bradway: "Q. Now, Mr. Bradway,you stated that Mike didn't have to do any climbing or anything except standing on the ground to steam clean. Then, 

### Ibelieveyou said thathe had to get up in order to clean the front engineby climbing up-- "A. Climbing in the operator's cab." When questioned about earlier statements thatMoen's job had been "strictlyon the ground," Bradway answered: "A. Inever thought about getting that side on the front, never gave one thought of it. Rut he was hired to do the job, and thatwas part of the job to do."Bradway's testimony in the second action also established that although Mike Moen did not start steam cleaning the scraper engines and transmissions until 10:OO or 10:30 a.m., he had finished them by noon. On July 8, 1981, Violette Moen petitioned the Workers' Compensation Court for a hearing. She alleged that new evidence brought out in the negligence action established that Mike Moen had done "at least 8 hours of hard, dirty work in less than 

### 4 hours," and "had to exert and strain himself in an unusualmanner in order to accomplish the work he did in themorning of November 1, 1975." Mrs. Moen maintained that this exertion was the "unusual strain" which precipitated the "tangible happening of a traumatic nature," i.e., the heart attack which causedMike Moen's death. Decker Coal Company moved to quash Violette Moen's petition. TheWorkers' CompensationCourt granted the motion on January 11, 1982, and dismissed the petitionwith prejudice, finding "nopurpose in granting another hearing when it is likely that the result will remain the same." Violette Moen appeals. Case I

## - Supreme CourtNo. 82-29. Claimant Moen first argues that the Workers' Compensation Court erred in considering defendant's motion to quash because no procedural rule governing the Workers' compensation Divisionpermits a defendant to file such a motion. Defendant's argument is that this Court should take a broad view of these uncharted administrative waters, and permit such a motion unless it is specifically prohibited. Proceedings in the Workers' Compensation Court are governed not by the Rules of Civil Procedure,but by the Montana Administrative Procedure Act (MAPA). Dumont v.Wickens Bros. Const. Co. (1979), Iont

# . , 598 P.2d 1099, 36 St.Rep. 1471; section 39-71-2903, FCA. Sections 2- 4-201 and-202, MCA, provide for agencies to adopt rules of practice and procedure. Pursuant to those statutes, the Department ofAdministration has set outprocedural rules for theWorkers' Compensation Court. S 2.52.201, et seq., Administrative Rules ofMontana (A.R.M.). ClaimantViolette Moen would have this Court view her petition and defendant's motion to quash in the light of the Workers' Compensation Court rule on answers, § 2.52.202, A.R.M. (formerly Rule 2). This rule does not provide for anymotions other than a motion for a more detailed petition. We do not believe the Workers' Compensation Court was so limited. § 2.52.224, A.R.M., governing rules compliance (formerlyRule 21) states: "Ifa party neglects or refuses to comply with the provisions of this sub-chapter, the Courtmay dismiss a matter with or without prejudice, grant an appropriate order for a party, or take other appropriate action. However, the Courtmay, in its discretion and in the interestsof justice,waive irregularities and noncompliance with any of the provisions in the sub-chapter." Clearly, the Workers' Compensation Court is granted broad discretion in determining whether to entertain faulty motions and petitions. Here, claimant filed a petition for rehearing (nominally

a petition for hearing)well beyond the 20 days allowed in 5 2.52.222, A.R.M. (formerlyRule 19). Yet the court chose to consider themerits of the petition, because claimant alleged that new material evidencehad been discovered. Defendantmoved to quash the petition. Again the court chose to exercise its discretion under § 2.52.224, 

### A.R.M., and consider themotion despite the fact that the rules do not explicitly provide for such a motion.We findno abuse of discretion inthe court's decision toconsider themotion toquash. The court concluded that it would be unjust to force Decker Coal todefend again through a new trial, and a motion toquash provided the most effectivemeans of dismissing the petition. The Workers' Compensation Court, while not governed by the Rules of Civil Procedure, may be guided by them, and tothe extent thatreference tothose rules lies within the discretion the court may exercise under § 2.52.224, A.R.M., such reference is acceptable. Violette Moen also argues that theWorkers' Compensation Court erred ingranting Decker Coal's motion toquash on the merits. She maintains that the variations inBradway's testimony are sufficient tojustify a new trialunder Kartes

v. Kartes (1977), 175Mont. 210, 573 P.2d 191; and Statev. Lewis (1978), 177Mont. 474, 582 P.2d 346. Section 25-11-102, MCA, provides that a former verdict

or decisionmay be vacated and a new trial granted upon application if the substantialrights of the applicantwere materially affectedby



### "(4) newly discovered evidence material for the partymaking the application which he could not, with reasonable diligence, have discovered and produced attrial, 

# . .

# ." See also Xartes v. Kartes, supra. This decades-old standard has been fleshed outby case law establishing that the decision togrant ordeny a new trial iswithin the sound discretionof the trial court, Fredericksen v. Fredericksen (1980), Mont. 605 P.2d 1135, 1137, 37 St.Rep. 191, 193, and willnot be overturned absent a showing of a manifest abuse of that discretion. Gilesv. FlintVal.Forest Products (1979), Mont. 

### , 588 P.2d 535, 538, 36 St.Rep. 23, 26. Towarrant the granting of a new trial

on the ground of newly disc~vered evidence, it must appear to the court that there is a reasonable probability that, upon a retrial, the evidenceproposed will change the result. Gould v. Lynn (1930),88Mont. 501, 505, 293 P. 968, 970. Here, the Workers' Compensation Court clearly indicated its belief that there was no reasonable probability that the

new evidence would change the result upon retrial. Its rationalewas set forth at length in the January 11, 1982, order granting Decker Coal's motion to quash. The court recognized that some disparity existed between Delmar Bradway's testimony at the Workers' Compensation Court trial and that in District Court,but the "newevidence [was] really cumulative and not so substantial as to overturn the decision" rendered by this Court in Moen v. Decker Coal Company, supra. The order stated: "Allof the facts concerning the events of thatmorning are in the workers' compensation trial transcript with the exception of the fact thatMr. Moen had to climb up on the machines in order to steam parts of the engine. Any other facts relating to Mr. Moen's exertions on that morning could have been readily adduced under cross-examination, as they were in the district courtproceeding. In addition, claimant would have to present medical testimony linking the exertions of Mr. Moen in themorning to his heart attack in the afternoon. Dr. Fletcher, claimant's medical expert,has already testified that arteriosclerosiswas probably the cause of the myocardial infarction. In light of these facts, the Court sees no purpose in granting another hearing when it is likely that the resultwill remain the same." We note that while a judge cannot as confidently predict the probable result of a retrial by jury, the judge here would be hearing the cause upon retrial, and is in a far better position to assess claimant Moen's chances to prevail uponretrial. We find that the Workers' Compensation Court did not abuse its discretion in granting Decker Coal's motion to quash. There is ample evidence on the record to support the court's conclusion that there was still not sufficient evidence linking Mike Moen's exertion on the job to his heart attack and death. Claimantwould have this Court add the new information to the factspresented at the initial trial, and conclude thatMoen v. Decker Coal Company, supra,would have been decided differentlyby this Court. But the test set forth in Gould v. Lynn, supra, is notwhether the original trial would ormight have been decided differently, but whether the new evidencewill probably change the result if a new 

### -- trial is granted. The lower court concluded the result -- - would probably be the same. Substantial evidence supports that conclusion, and we will not set it aside. Decker Coal Company maintains that the matter should be

res judicata, as the Workers' Compensation Court concluded in its order granting Decker Coal Company's motion to quash. This Court has recently emphasized that the Workers' Compensation Court is entitled to finality as to its judgments in the samemanner as district courts. McMahon v. Anaconda Company (1981), Mont

# . P.2d 

### , 38 St.Rep. - 1233. Under section 25-11-102, MCA, that finality does not extend to motions for new trial on the grounds therein enumerated, whether the motions are made in the district courts or the Workers' Compensation Court. The Workers' Compensation Court'actedwithin its statutory and administrative authority in deciding to consider Decker Coal's motion to quash on its merits, anddid not abuse its discretion in granting the motion. Affirmed. Case I1

## - Supreme Court No, 81-106. Plaintiff Violette M0en argues that the District Court committed reversibleerror when it excluded, as inadmissible hearsay, her testimony thatMike Moen called her the night before his heart attack, and told her he had to stay in Decker Saturday to steam clean. This evidence conflicts with Bradway's testimony that he did not ask Mike Moen to steam clean until Saturdaymorning, after he noticed Moen's truck stillparked by Moen's trailer. Plaintiff's sole purpose in introducing this evidence is to impeach the credibility of Delmar Bradway as to other matters. There is no causal connection between the time Bradway asked Mike Moen to work overtime and Mike Moen's heart attack and death, nor does plaintiff allege that there is. We do not find the District Court erred in excluding Violette Moen's testimony. One cannot impeach a witness on a collateralmatter. State v. Harvey (1979), Mont.

-- 

### , 603 P.2d 661, 666, 36 St.Rep. 2035, 2040;Tigh v. College Park Realty Co. (1967),149Mont. 358, 364, 427 P.2d 

### 57,61;McCormick, Handbook of the Law of Evidence, S 47 at 

### ---- 98-99 (2ded. 1972). Here, the question of when Bradway asked Mike Moen towork overtime is neither relevantnor material to the issue in controversy, - viz., whether Kiewit, through Bradway, negligently failed to provide help to a worker strickenby a heart attack. Furthermore, as Kiewit points out, the impeachment value of Violette Noen's testimony depends upon the jury believing the truth, not of Violette Moen's claim that her husband had called and said he had to work Saturday, but ofMike Moen's statement that he had been told on Friday that he had to work Saturday. The testimony clearly - is hearsay under Rule 801(c), M.R.Evid. The testimony is not saved by being a statementof Mike Moen's state of mind, his intent, and hence an exception to the hearsay rule under Rule 803(3)

### , M.R.Evid. Mike Moen's state of mind was irrelevant to the matter in controversy, the alleged negligence of Kiewit. When intention or state ofmind is nct at issue, the hearsay exception does not apply. SeeRoss v. Industrial Accident Board (1938),106Mont. 486, 495-496, 80 P.2d 362, 364-365. The DistrictCourt properly refused to allow plaintiff's hearsay evidence in support of plaintiff's attempted impeachment of Bradway on a collateralmatter. Plaintiff Moen also charges that the District Court erroneously permitted JamesMcCarthy to testify as to what Mike Moen did not do and did not say during the time he later claimed to be suffering the heart attack. Mike Moen stopped at the Decker store after leaving work Saturday afternoon at abo~t 4:00 P.M. He spoke with his close friend, James McCarthy, first suggesting he and McCarthy go to town together, then, about an hour iater, asking McCarthy to drive him to town. McCarthy testified thatMike Moen had

never stated anything was thematter with him, although he

was pale and "didn't look like the regular Mike full of vir. and vigor." Plaintiff Moen argues that McCarthy's testimonywas introduced "forthe purpose of proving that if Moen made no complaint to McCarthy, then there was nothing wrong with him at the time." She argues that Mike Moen's silencewas treated as an admission without certain foundational requirements having been met. Plaintiff Moen relies upcn In ReNeilson's Estate (1962),57 Cal.2d 733, 371 P.2d 745, 22 Cal.Rptr. 1, inwhich the court held that,before a person's failure to respond to a statement could be offered as an implied admission, the offerormust establish that: (a) the statement must be onewhich would normally have elicited

a reply; (b)the person who would normally reply must be shown to have understood the statements; (c)itmust be rational to infer that the person's silence indicated his acceptance of the statement as an admission. We do not find thatMcCarthy's testimony implies an admission by Mike Moen that he was not ill. Nor do we find the situation in the case atbar mandates the exclusi~n of McCarthy's testimony. There was no statement by McCarthy for Mike Moen to admit or deny; nor was the evidence of Noen's silence intended as proof that he was not ill. Cardiac experts testified that a man suffering a heart attack would not necessarily

### be incapable of moving about, talking or driving a vehicle. McCarthy's testimony was significant only insofar as it tended to prove, not thatMike Moen was - not suffering a heart attack, but that he was keeping it to himself, and that, by implication, he may have done so at the Deckermine as well. This evidence is consistent with Bradway's testimony thatMoen neither complained of pain nor appeared ill, and tends to absolve Kiewit of a duty to render direct aid to Mike Moen. This Court has consistentlyheld that the question of admissibilityof evidence in every casemust be left largely to the sound discretion of the trial court, subject to review only in case of manifest abuse. Cech v. State (1979), Mont. 

### , 604 P.2d 97, 102, 36 St.Rep. 2185, 2192; Gunderson

### v. Brewster (1970),154 Mont. 405, 466 P.2d 589.We find that the trial court did not abuse its discretion in allowing James McCarthy's testimony into evidence. Finally,plaintiff Moen maintains that the trial court erred in refusing several of her offered instructions. The court rejectedMoen's instruction that violation of ~ertain federal laws regarding arrangements fcrmedical assistance constituted negligenceper -- se,but that therewas no liability unless the violation was a legal cause of plaintiff's injury. A separate instruction stating the laws

was given. The court also rejected plaintiff's instruction that federal law requires that a worker not be left alone in

a hazardous area. Plaintiff relies upon language in an old case, Daniels v. Granite Bi-Metallic Consolidated Mining Co.

(1919),56 Mont. 284, 184 P. 836, for the rule that violation 

### of mining rules and regulations renders defendant liable for "damagesproxinately caused by the unauthorized act

# . . ." Daniels is not applicable here, where there is not sufficient evidence to suggest any rational connection between alleged violations ofmining regulationsby Kiewit and Mike Moen's death. Bradway's uncontradicted testimony establishes thathe was with Moen from 1:00 to 3:30 

### P.M., Saturday afternoon;Moen told the physicians in Sheridan his chestpain began at 2:00 p.m. The fact thatMoen worked by himself in an arguably hazardous area within a couple of hundred yards of others during the morning hours may establish

a violation of a regulation. It does not suggest any connection with Moen's fatal heart attack later in the day. Si~tilarly, although Bradway may have contravened union rules by steam cleaning the scraperbatteries and radiators hinself in the afternoon, while Moen drove the truck, there is nc automatic causal relation between the viclation and Moen's heart attack. Plaintiff would have this Court find that theevidence that Bradway steam cleaned while Ploen drove the truck in the afternoon is sufficient to warrant the instruction. The implicationplaintiff seeks to pull from the testimony is that Bradway knewMoen was ill,but refused to treat him

or lethim seek treatmentuntil the scrapers were finished, and that such neglect contributed to Moen's death by delaying his treatment. We do not find that the evidence supports the implication. In the first place, Bradway's co-workers testified Bradway was, if anything, overcautious, a "sweater," not a person to deal casuallywith an emergency. Bradway himself was trained in first aid and qualified to drive the ambulance. Bradway's testimony established thatweekly safetymeetings

(soneof which Moen attended) stressed the need for employees to report illness or injury to supervisors,and indicated the constant availability of ambulance and driver, sh~uld they be needed. Itwas obviously cormon knowledge at the Decker mine that the ambulance could be rcanned at any time for emergency transportation to the hospital and that November 1, 1975, was no exception. Yet, the record shows that for over an hour from the time he himself claimed his pain beqan, Moen continued to work with Bradway without reporting his ccndition. He signed himself out after work, indicating no injury on shift, and drove to the Decker stcre to seekMcCarthylscompany going to Sheridan, rather than requesting an ambulance from Kiewit at the Deckermine. The only evidence thatMoen may have believed aid was unavailablewas plaintiff's testimony that Mike Moen told her over the telephone from the Sheridanhospital that there had been

no one around to help him.We findthat the DistrictCourt committed no error in refusing the above instructions; therewas insufficient evidence torequire their inclusion. Furthermore, the differencebetween the "legalcause" referred tointhe offered instruction, and the "proximate cause" referred to inDaniels, supra, could have confused and misled thejury. Plaintiff Moen alsourges thisCourt tofind reversible

error inthe DistrictCourt's rejection of her instructions

on "chance of survival" and "legal cause." Inboth cases relied upon by plaintiff tosupport her "chance of survival" instruction argument, therewas evidence thatthe defendant had failedtorecognize ortotally disregarded a known duty and by his "negligent action orinaction" destroyed whatever chance the decedent might have had to survive. See Hicks v. United States (4thCir. 1966), 368 F.2d 626 (surgeon's negligent failuretoidenkify and remove

a bowel obstruction); Gardner v. National Bulk Carriers, Inc. (4thCir. 1962), 310 F.2d 284, cert.den. 372 U.S. 913, 83 S.Ct. 728, 9 L.Ed.2d 721 (refusalof ship's master to altercourse tosearch formissing seaman). The District Court alsorejectedplaintiff's offered instruction no. 19: "A legal cause of an injury is a cause which is a substantial factor inbringing about the injury. " This instructionhas been adopted inCalifornia. See California Jury Instructions Civil, BAJI No. 3.76 (6thed. 1377);W. Prosser,Sandbook of the Law of Torts § 41 (4thed. 1971). ---- Plaintiff urges its adoption by thisCourt. Wedo not find that either "chance of survival" instructions

or "legalcause" instructions areimproper inMontana. But

we do findthatneither instruction was appropriateunder the

### facts of this case, and the District Court did not err in rejecting them. Both instructionsdepend upon plaintiff's allegation that Kiewit neglected a duty to Mike Moen, either to recognizehis condition and provide direct aid or to have personnel available to render aid if Moen himself sought it. There is simply not sufficient evidence, or, in fact, any substantial evidence to support these allegations. The record strongly supportsdefendant'spssition thatMoen was not left alone in the afternoon, that he did not make his condition known to and seek help fromBradway,who was trained in first aid and would have helped him, or from anyone else at the Deckermine. Plaintiff's theory of the case is not supportedby evidence sufficient to give force to her argument that the disputed instructions should have been adopted. Therewas no error in the District Court's rejection of the "chanceof survival"instruction and the "legalcause" instruction offered by plaintiff. Kiewit cross-appeals from the District Court's denial of its motions for directed verdict. When a defendant moves for a directed verdict the trial courtmust consider only the evidence introduced by the plaintiff, in the light most favorable to plaintiff, and may notwithdraw the case from the jury unless a recovery cannot be had upon any view that can be drawn reasonably from the facts the evidence tends to establish. Pickettv. Kyger (1968),151

### Mont. 87, 99, 439 P.2d 57, 63. 

### Plaintiff's

case depedds primarily upon the evidence that Rradway, not Moen, did the steam cleaning in the afternoon and that Moen told his wife therewas no one at work to help himwhen he suffered his heart attack. While that evidence isweak,

a 

### jury could conceivably have fou~ldthe evidence establishedKiewit's negligence. Therefore, the District Court properly rejected Kiewit's motions for directed verdict. Affirmed.

WeConcur:

Chief Justice