No. 81-106 

IN TEE SUPREME COURT OF THE STATE OF MONTANA 

1982 

VIOLETTE MOEN, Individually and as 

Personal Representative, 

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~peals from: 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: 

For Appellant: 

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 1982 
Mr. 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, claimant Moen appeals 

from the order of the Workers' Compensation Court, granting 

defendant's motion 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 Court No. 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 53 years 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 a 
heart attack which led to his death in the Sheridan, Wyoming, 

hospital, early the next morning. 

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 Saturday morning, shortly after 

8:00 a.m. at the request of his supervisor, Delmar Rradway, 

Moen returned to the Decker mine 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 45 minutes 

to clean each scraper, yet Moen was finished by noon. 

According to Bradway, who was the only employee working 

with Moen in the afternoon, the two men 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 it was 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 that Moen never 

complained of pain or exhibited any signs of illness. 

Moen's time card for November 1, 1975, is signed; the space 

wherein an employee must indicate an on-shift accident is 

marked "no" and initialed with Moen's initials. 
James McCarthy, a close friend and co-worker of Moen's 

at Decker Coal, also runs the Decker store and post office, 

some five miles below the mine. 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 

30 miles away). McCarthy stated that he excused himself to 

continue working on a pump in the cellar, but Moen sought 

him out: 

"There was a knock on the door, and I came 

up from the cellar. And he asked me if I 

would drive him to town; never again stating 

there was anything the matter with him but 

he just didn't feel that--you know he wanted 

to go to town. I says, 'I'll be with you in 

about ten minutes, as soon as I put the web 

back into the pump.' So it must have been 

about 20 minutes later that I came up. Never 

even checked on him, went into the bathroom 

and cleaned up and came out to go with him, 

and he was gone. 

"9. The last time that you saw him did he 

appear to you to be seriously ill? 

"A. No. I will say this, he was pale. In 

other words, 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 radiating down 

his left arm. The pain increased in intensity for about 15 

minutes, then continued at about the same intensity. Moen's 

condition was diagnosed as acute interior myocardial infarction. 

Treatment failed to relieve Moen's pain, which continued 

severe until, after administration of morphine, 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 sinus pattern, 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 equipment was more or less taxing than an oiler's 

ordinary work. 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 [November 1, 19751 did 

you see Mike 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 low because 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 not met her burden of proving Mike Moen's death had been 

the result of "a tangible happening of a traumatic nature 

from an unexpected cause or unusual strain." Moen v. Decker 

Coal Co. (1979), F4on t . , 604 P.2d 765, 36 St.Rep. 

2220. 

On January 23, 1978, Violette Moen brought a negligence 

action against Peter Kiewit and Sons (Kiewit), seeking 
compensatory 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 supervisor kept Mike 

Moen working and compelled him to drive himself to the 

hospital, and that such negligence had 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 that Mike Jloen's regular work 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, I believe you said that he had to get 

up in order to clean the front engine by 

climbing up-- 

"A. Climbing in the operator's cab." 

When questioned about earlier statements that Moen's 

job had been "strictly on the ground," Bradway answered: 

"A. I never thought about getting that side 

on the front, never gave one thought of it. 

Rut he was hired to do the job, and that was 

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 unusual manner in order to accomplish the work 

he did in the morning 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 caused Mike Moen's death. 

Decker Coal Company moved to quash Violette Moen's 

petition. The Workers' Compensation Court granted the 

motion on January 11, 1982, and dismissed the petition with 

prejudice, finding "no purpose in granting another hearing 

when it is likely that the result will remain the same." 

Violette Moen appeals. 

Case I - Supreme Court No. 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 

Division permits 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), Ion t . , 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 of Administration has set out procedural rules 

for the Workers' Compensation Court. S 2.52.201, et seq., 

Administrative Rules of Montana (A.R.M.). 

Claimant Violette 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 

any motions 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 

(formerly Rule 21) states: 

"If a party neglects or refuses to comply 

with the provisions of this sub-chapter, the 

Court may dismiss a matter with or without 

prejudice, grant an appropriate order for a 

party, or take other appropriate action. However, the Court may, in its discretion and 

in the interests of 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. (formerly Rule 19). Yet the court chose 

to consider the merits of the petition, because claimant 

alleged that new material evidence had been discovered. 

Defendant moved to quash the petition. Again the court 

chose to exercise its discretion under § 2.52.224, A.R.M., 

and consider the motion despite the fact that the rules do 

not explicitly provide for such a motion. 
We find no abuse of discretion in the court's decision 

to consider the motion to quash. The court concluded that 

it would be unjust to force Decker Coal to defend again 

through a new trial, and a motion to quash provided the most 

effective means of dismissing the petition. The Workers' 

Compensation Court, while not governed by the Rules of 

Civil Procedure, may be guided by them, and to the extent 

that reference to those 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 the Workers' Compensation 

Court erred in granting Decker Coal's motion to quash on the 

merits. She maintains that the variations in Bradway's 

testimony are sufficient to justify a new trial under Kartes 

v. Kartes (1977), 175 Mont. 210, 573 P.2d 191; and State v. 

Lewis (1978), 177 Mont. 474, 582 P.2d 346. 

Section 25-11-102, MCA, provides that a former verdict 

or decision may be vacated and a new trial granted upon 

application if the substantial rights of the applicant were 

materially affected by 

" (4) newly discovered evidence material for 

the party making the application which he 

could not, with reasonable diligence, have 

discovered and produced at trial, . . ." 

See also Xartes v. Kartes, supra. This decades-old standard 

has been fleshed out by case law establishing that the 

decision to grant or deny a new trial is within the sound 

discretion of the trial court, Fredericksen v. Fredericksen 

(1980) , Mont. 605 P.2d 1135, 1137, 37 St.Rep. 

191, 193, and will not be overturned absent a showing of a 

manifest abuse of that discretion. Giles v. Flint Val. 
Forest Products (1979), Mont. , 588 P.2d 535, 538, 

36 St.Rep. 23, 26. To warrant 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 evidence proposed will change the result. 

Gould v. Lynn (1930), 88 Mont. 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 

rationale was 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 "new evidence [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: 

"All of the facts concerning the events of 

that morning are in the workers' compensation trial transcript with the exception 

of the fact that Mr. 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 court proceeding. 

In addition, claimant would have to present 

medical testimony linking the exertions of 

Mr. Moen in the morning to his heart attack 

in the afternoon. Dr. Fletcher, claimant's 

medical expert, has already testified that 

arteriosclerosis was 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 

result will 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 upon 
retrial. 

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. 

Claimant would have this Court add the new information 

to the facts presented at the initial trial, and conclude 

that Moen v. Decker Coal Company, supra, would have been 

decided differently by this Court. But the test set forth 

in Gould v. Lynn, supra, is not whether the original trial 

would or might have been decided differently, but whether 

-- the new evidence will 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 same manner 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'acted within its 

statutory and administrative authority in deciding to 

consider Decker Coal's motion to quash on its merits, and 
did not abuse its discretion in granting the motion. 

Aff irmed. 

Case I1 - Supreme Court No, 81-106. 

Plaintiff Violette M0en argues that the District Court 

committed reversible error when it excluded, as inadmissible 

hearsay, her testimony that Mike 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 Saturday morning, after he noticed Moen's 

truck still parked 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 collateral matter. State v. Harvey (1979), Mont. 

-- , 603 P.2d 661, 666, 36 St.Rep. 2035, 2040; Tigh v. 

College Park Realty Co. (1967), 149 Mont. 358, 364, 427 P.2d 

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

98-99 (2d ed. 1972). Here, the question of when Bradway 

asked Mike Moen to work overtime is neither relevant nor 

material to the issue in controversy, - viz., whether Kiewit, 

through Bradway, negligently failed to provide help to a 

worker stricken by 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 of 
Mike 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 statement of 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 of mind is nct at issue, the hearsay 

exception does not apply. See Ross v. Industrial Accident 

Board (1938), 106 Mont. 486, 495-496, 80 P.2d 362, 364-365. 

The District Court properly refused to allow plaintiff's 

hearsay evidence in support of plaintiff's attempted impeachment of Bradway on a collateral matter. 

Plaintiff Moen also charges that the District Court 

erroneously permitted James McCarthy 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 that Mike Moen had 

never stated anything was the matter 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 testimony was 

introduced "for the 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 silence was 

treated as an admission without certain foundational requirements having been met. Plaintiff Moen relies upcn In Re 
Neilson's Estate (1962), 57 Cal.2d 733, 371 P.2d 745, 22 

Cal.Rptr. 1, in which the court held that, before a person's 

failure to respond to a statement could be offered as an 

implied admission, the offeror must establish that: (a) 

the statement must be one which would normally have elicited 

a reply; (b) the person who would normally reply must be 

shown to have understood the statements; (c) it must be 

rational to infer that the person's silence indicated his 

acceptance of the statement as an admission. 

We do not find that McCarthy's testimony implies an 

admission by Mike Moen that he was not ill. Nor do we find 

the situation in the case at bar 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 that Mike 

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 Decker mine as well. This evidence is consistent 

with Bradway's testimony that Moen 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 consistently held that the question of 

admissibility of evidence in every case must 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 rejected Moen's instruction that violation of 

~ertain federal laws regarding arrangements fcr medical 

assistance constituted negligence per -- se, but that there was 

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 

"damages proxinately caused by the unauthorized act . . ." 

Daniels is not applicable here, where there is not 

sufficient evidence to suggest any rational connection 

between alleged violations of mining regulations by Kiewit 

and Mike Moen's death. Bradway's uncontradicted testimony 

establishes that he was with Moen from 1:00 to 3:30 P.M., 

Saturday afternoon; Moen told the physicians in Sheridan his 

chest pain began at 2:00 p.m. The fact that Moen 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 scraper batteries 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 the 
evidence that Bradway steam cleaned while Ploen drove the 

truck in the afternoon is sufficient to warrant the instruction. 

The implication plaintiff seeks to pull from the testimony 

is that Bradway knew Moen was ill, but refused to treat him 

or let him seek treatment until 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 casually with an emergency. Bradway himself 

was trained in first aid and qualified to drive the ambulance. 

Bradway's testimony established that weekly safety meetings 

(sone of 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. It was 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 seek McCarthyls company going to Sheridan, rather than 

requesting an ambulance from Kiewit at the Decker mine. The 

only evidence that Moen may have believed aid was unavailable was plaintiff's testimony that Mike Moen told her over 

the telephone from the Sheridan hospital that there had been 

no one around to help him. 
We find that the District Court committed no error in 

refusing the above instructions; there was insufficient 

evidence to require their inclusion. Furthermore, the 

difference between the "legal cause" referred to in the 

offered instruction, and the "proximate cause" referred to 

in Daniels, supra, could have confused and misled the jury. 

Plaintiff Moen also urges this Court to find reversible 

error in the District Court's rejection of her instructions 

on "chance of survival" and "legal cause." 

In both cases relied upon by plaintiff to support her 

"chance of survival" instruction argument, there was evidence 

that the defendant had failed to recognize or totally disregarded a known duty and by his "negligent action or inaction" 

destroyed whatever chance the decedent might have had to 

survive. See Hicks v. United States (4th Cir. 1966), 368 

F.2d 626 (surgeon's negligent failure to idenkify and remove 

a bowel obstruction); Gardner v. National Bulk Carriers, 

Inc. (4th Cir. 1962), 310 F.2d 284, cert.den. 372 U.S. 913, 

83 S.Ct. 728, 9 L.Ed.2d 721 (refusal of ship's master to 

alter course to search for missing seaman). 

The District Court also rejected plaintiff's offered 

instruction no. 19: 

"A legal cause of an injury is a cause which is 

a substantial factor in bringing about the injury. " 

This instruction has been adopted in California. See California 

Jury Instructions Civil, BAJI No. 3.76 (6th ed. 1377); W. 

Prosser, Sandbook ---- of the Law of Torts § 41 (4th ed. 1971). 

Plaintiff urges its adoption by this Court. 

We do not find that either "chance of survival" instructions 

or "legal cause" instructions are improper in Montana. But 

we do find that neither instruction was appropriate under the 
facts of this case, and the District Court did not err in 

rejecting them. Both instructions depend upon plaintiff's 

allegation that Kiewit neglected a duty to Mike Moen, either 

to recognize his 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 supports defendant's pssition that Moen was 

not left alone in the afternoon, that he did not make his 

condition known to and seek help from Bradway, who was 

trained in first aid and would have helped him, or from 

anyone else at the Decker mine. Plaintiff's theory of the 

case is not supported by evidence sufficient to give force 

to her argument that the disputed instructions should have 

been adopted. 

There was no error in the District Court's rejection of 

the "chance of survival" instruction and the "legal cause" 

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 

court must consider only the evidence introduced by the 

plaintiff, in the light most favorable to plaintiff, and may 

not withdraw 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. Pickett v. 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 there was no one at work to help him when he 

suffered his heart attack. While that evidence is weak, 

a jury could conceivably have fou~ld the evidence established 
Kiewit's negligence. Therefore, the District Court properly 

rejected Kiewit's motions for directed verdict. 

Affirmed. 

We Concur: 

Chief Justice