No. 13097 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

HELEN TORCHIA, individually and as 

a personal representative, 

Plaintiff and Appellant, 

BURLINGTON NORTHERN, INC. 

a corporation, 

Defendant and Respondent and 

Cross Appellant. 

Appeal-from: District Court of the Eighth Judicial District, 

Hon. Paul G. Hatfield, Judge presiding. 

Counsel of Record: 

For Appellant: 

Gough, Booth, Shanahan and Johnson, Helena, Montana 

Cordell Johnson argued, Helena, Montana 

For Respondent : 

Hoyt and Bottomly, Great Falls, Montana 

John C. Hoyt argued and Richard V. Bottomly argued, 

Great Falls, Montana 

Submitted: June 6, I977 

Filed: '_?I" I I 

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Clerk 
Hon. M. James Sorte, District Judge, delivered the Opinion of 

the Court: 

This is a wrongful death action filed in the district court, 

Cascade County, under the Federal ~mployers' Liability Act, 45 

U.S.C. $51 etuseq. (FELA). 

Plaintiff Helen Torchia as personal representative of the 

estate of decedent Gennaro Torchia, and on behalf of their 

children, sued defendant Burlington Northern, Inc. for damages 

occasioned by the death of her husband Gennaro Torchia. 

Gennaro Torchia, a Burlington Northern fireman, was killed 

in a head-on collision between two railroad trains. In her 

complaint plaintiff alleged negligence under the FELA and 

prayed for compensatory damages. She also, individually and 

as personal representative of the minor children, alleged 

willful and wanton conduct and prayed for punitive damages. 

In its amended answer, defendant admitted 1iability"for negligence under the FELA. The trial court denied defendant's 

motion to strike those allegations from the complaint which 

had reference to punitive damages. 

The case was tried to a jury on the issues of compensatory 

damages and conduct which would form the basis for an award 

of punitive damages. The jury returned a verdict for plaintiff 

for compensatory damages only, in the amount of $580,000. The 

jury found the facts did not justify an award of punitive damages. 

Defendant appeals from the judgment entered on the jury verdict. 

Plaintiff crossappeals from an order denying her motion for a 

new trial on the issue of punitive damages. 

The facts of this care are: 

At approximately 11:45 p.m. on May 11, 1971, at a point 

near Sheffels on the Burlington Northern line between Great Falls 
and Havre, there was a head-on collision between two trains. 

Four of defendant's employees were killed and several others 

injured. One of those killed was plaintiff's husband, Gennaro 

Torchia. 

The movement of trains between Great Falls and Havre is 

controlled out of the dispatcher's office in Havre. Trains are 

operated over this segment of the track by train orders and 

clearances. The Havre to Great Falls route consists of but one 

track, Thus, the orders and clearances are significant in 

controlling train movements where a "meet" is anticipated between 

trains traveling in opposite directions. 

A dispatcher issues various orders to the operators at 

various stations on the line. The orders are communicated 

from the dispatcher to the operator by telephone. The operator 

then copies the orders on train order forms. The orders are 

then read back to the dispatcher to insure the copied orders 

are correct. 

It is also the responsibility of the dispatcher to issue 

clearances which are communicated to and copied by the operator 

in the same manner as are train orders. A train is not allowed 

to move over a track which is controlled by train orders and 

clearances unless a proper clearance is issued for the train movement. Typically, orders and clearances are not issued until the 

train has been "called", that is, assembled and ready for departure. Generally, the conductor in charge of the train and 

crew picks up the orders and clearances from the operator. When 

it becomes necessary to issue a second order and clearance on a 

given train movement, the first orders and clearance are taken 

up and destroyed. 

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In 1971 it was and had been for many years the practice 

in Havre for the operator to place copies of the completed 

clearances and orders on the train register desk in the Havre 

Relay Office. There was no procedure whereby it could be determined when the orders were actually picked up by the conductor. 

In this case Dispatcher Newel1 was on shift from 7:30 a.m. 

until 3:30 p.m. on May 11, 1971. He issued orders and a clearance at 3:08 p.m. for the Havre to Great Falls train, designated 

as "Extra 2013 West." Newel1 expected the train would be called 

momentarily. Operator Wirtzberger then placed the clearance and 

orders on the train register desk. At that time Newel1 was 

unaware a train was being assembled in Great Falls destined 

for Havre, also to leave on May 11. 

Newel1 turned over his dispatching district to Dispatcher 

McMaster at 3:30 p.m. Pursuant to the then operative "staggered 

shift" work system, McMaster who was on duty dispatching another 

district was ,in addition, given responsibility for Newell's 

district until 4:30 p.m. Newel1 explained to McMaster that he 

had cleared the Havre to Great Falls train. The clearance is 

reflected in the clearance record kept by the dispatcher. There 

was no dispatching activity during the hour McMaster had responsibility for the district so no further entries were made in the 

dispatcher's book. At the end of his shift McMaster merely 

initialed the record book and passed it on to Dispatcher Magnuson. 

There is a dispute in the evidence as to whether McMaster 

verbally informed Magnuson the Havre to Great Falls train was 

cleared when the dispatching district was turned over to him. 

McMaster testified he informed Magnuson of the clearance. Magnuson testified no such statements were made. However, there is no 
dispute the records McMaster turned over to Magnuson clearly 

indicated the train had been cleared at 3:08 p.m. by Newell. 

Magnuson, during his dispatching shift, was informed that 

a train would soon be leaving Great Falls bound for Havre. To 

arrange for a "meet" between the respective trains whereby one 

would take a side track as the other passed by, Magnuson issued 

a second order and clearance at 8:18 p.m. The second order and 

clearance were communicated to Operator Porter, who prepared them 

and placed them on the train register desk. 

Sometime between the time Operator Wirtzberger placed the 

first order and clearance on the train register desk and the 

time the second order and clearance were placed on the desk, 

Conductor Freeburg, conductor for "Extra 2013 West", came into 

the Havre Relay Office and picked up the first orders and clearance. He was not seen picking up the orders and clearance by any 

dispatcher or operator. 

Plaintiff's husband, Gennaro Torchia, was a member of the 

crew of the Great Falls to Havre train. Under the second orders 

issued to that train, but unknown to Conductor-Freeburg of 

"Extra 2013 West" and its crew, it was to proceed to Portage: where 

a "meet" would take place. The Havre to Great Falls train was to 

wait at Portage to permit the Great Falls to Havre train to take 

the siding. 

The Havre to Great Falls train passed the siding at Portage 

without stopping and, shortly beyond Sheffels, the head-on collision between the two trains occurred. Gennaro Torchia was killed 

instantly. At the time of his death he was 49 years of age. 

Additional pertinent facts will appear later in this opinion. 
Defendant raises numerous points of error on appeal. For 

this opinion we will discuss eight determinative issues: 

1. Whether punitive damages are recoverable in an action 

under the FELA? 

2. Whether thetverdict should be set aside as being excessive 

and based on passion or prejudice? 

3. Whether the voir dire examination by counsel for 

plaintiff was improper? 

4. Whether admission of evidence pertaining to future 

railroad retirement benefits was error? 

5. Whether the trial court erred in admitting certain testimony given by plaintiff's expert witness in the area of economics? 

6. Whether a potential witness for defendant, whose name 

was not listed on the pretrial order, should have been permitted 

to testify? 

7. Whether the trial court erred in selection of instructions 

and form of verdict? 

8. Whether admission into evidence of a portion of the 

Federal Railroad Administration Accident report was prejudicial 

error? 

Issue 1. A major contention of defendant is that punitive 

damages should not have been an issue in the case, and evidence 

and proposed instructions related thereto should not have been 

permitted. Defendant asserts such issue should have been removed 

upon its motion to strike. Defendant alleges punitive damages 

are not allowable under the FEU, and allowing plaintiff to introduce proof not only of liability, but also on the question of 

punitive damages was prejudicial and resulted in an excessive award 

as a result of passion and prejudice on the part of the jury. 
As noted, defendant admitted its liability for ordinary 

negligence. At the outset we reject defendant's theory that upon 

such an admission, plaintiff's case must be limited solely to 

the issue of damages. Under the facts of this case plaintiff 

could prove her case as she wishes subject, of course, to the 

ordinary control and discretion exercised by the trial judge. 

Whether or not evidence of punitive damages&as a proper 

place in an action under the FELA, the jury here refused to 

allow such damages to plaintiff. In view of the evidence presented by plaintiff and the result reached by the jury, the 

presence of the element of punitive damages did not prejudice 

defendant in this case. Slifer v. Yorath, 52 Mont. 129, 155 

P. 1113; Martin v. Corscadden, 34 Mont. 308, 86 P. 33. Further, 

the same reasoning applies with reference to the alleged error 

in the giving of instructions on willful and wanton misconduct 

and other matters relative to punitive damages. The salient 

fact remains the jury refused to award such damages and, in 

fact, specifically found there was no evidence of conduct which 

would form the basis for punitive damages. Defendant suffered 

no prejudice as a result. Hill v. Chappel Bros. of Montana, Inc., 

93 Mont.92, 18 P.2d 1106. 

Issue 2. Was the jury verdict excessive and based upon 

passion and prejudice? 

Defendant asserts there must be substantial evidence in the 

record upon which the jury award can be predicated, citing 

Montana cases. While there was more than substantial evidence 

in the record to justify the jury's award, nevertheless this is 

not the applicable standard under the Federal Employers' Liability 

Act. In Resner v. The N.P.Railway, 161 Mont. 177, 505 P.2d 86 
(1973), this Court quoted the standard as set out in Lavender v. 

Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L ed 916, 923, a 

Federal Employers' Liability Act case. There the United States 

Supreme Court said: 

I1 I It is no answer to say that the jury's verdict 

involved speculation and conjecture. Whenever facts 

are in dispute or the evidence is such that fairminded men may draw different inferences, a measure of 

speculation and conjecture is required on the part 

of those whose duty it is to settle the dispute by 

choosing what seems to them to be the most reasonable 

inference. Only when there is a complete absence of 

probative facts to support the conclusion reached does 

a reversible error appear. But where * * * there is an 

evidentiary basis for the jury's verdict, the jury is 

free to discard or disbelieve whatever facts are inconsistent with its conclusions. And the appellate 

court's function is exhausted when that evidentiary 

basis becomes apparent, it being immaterial that the 

court might draw a contrary inference or feel that another conclusion is more reasonable. ' (Emphasis added. )" 

161 Mont. 183. 

Plaintiff's evidence of damages was almost entirely uncontradicted. Through the testimony of various witnesses, plaintiff 

elicited facts and figures which, when projected into the future 

and discounted to present value, would reasonably support a verdict such as was rendered in this case. The trial judge agreed 

the verdict was not unjust and a new trial was not granted to 

defendant. We refuse to disturb the findings of the jury, 

Issue 3. This issue involves alleged improper voir dire 

examination of prospective jurors by counsel for plaintiff. Nothing 

at all appears in the record suggestive of the statements attributed 

to counsel. The law is clear that unless there is a record of 

the alleged error, this Court will not consider the matter. Kipp 

v. Willoughby, 161 Mont. 432, 506 P.2d 1365; Nissen v. Western 

Construction Equipment Co., 133 Mont. 143, 320 P.2d 997, Defendant's 

argument in this regard is without merit. 
Issue 4. Did the trial court err in allowing the testimony 

of plaintiff's witness, Judith Kirkness, an employee of the 

United States Railroad Retirement Board, concerning retirement 

benefits? The core of defendant's argument is that the witness 

was asked to make certain assumptions, while the facts forming 

the basis for such assumptions were not of record or in evidence. 

The record shows that, at some time in advance of trial, 

defense counsel verbally stipulated to the evidence to be 

elicited from witness Kirkness. In fact, he had so stipulated 

in a previous FELA action. However, immediately before the 

instant trial, defense counsel informed counsel for plaintiff 

Burlington Northern had assigned a Minnesota attorney to direct 

the case for defendant and as a result the prior stipulation 

was no longer valid. He then suggested plaintiff call Judy 

Kirkness as a witness. We note at this point that such tactics 

on the part of the new counsel are strongly disapproved by 

this Court. 

The proposed evidence and the procedure to be employed in 

developing it was discussed in chambers and fully considered 

by the trial judge. The witness was to determine the amount 

of benefits Gennaro Torchia would have been entitled to upon 

retirement from the railroad. The factors to be considered 

in arriving at such a computation are the employee's age, 

marital status, length of employment, rate of compensation, and 

length of military service. These facts pertaining to Gennaro 

Torchia, were substantially in evidence and presented in a 

correct fashion to the witness for her determination. The 

resulting testimony was properly admitted as it was based upon 

evidence before the court. Graham v. Rolandson, 150 Mont. 270, 

435 P.2d 263; Burns v. Fisher, 132 Mont. 26, 313 P.2d 1044. 
Issue 5. Defendant alleges error in the admission by the 

trial court of testimony of plaintiff's economic expert, Dr. 

George P. Heliker, on the issue of economic loss suffered as a 

result of the death of Gennaro Torchia. It is argued the expert 

opinions were speculative on future inflationary trends, in 

forecasting loss of earnings, in forecasting future earnings 

without considering the impact of income taxes thereon, and 

in forecasting loss of future Railroad Retirement Benefits. 

Proof of the present value of a future economic loss is 

necessarily uncertain to a degree. Any determination of factors 

such as growth in the size of the total labor force, output 

per madhour, wage trends and inflationary patterns is admittedly 

grounded in probabilities. However, this does not mean the 

amount of a future loss is not provable. Such losses are best 

proved through employment of economic and statistical disciplines, 

applied to the very factors listed above, as this Court has 

recognized in numerous prior decisions. Where, as here, the 

testimony of a specialist presents a jury with a reasonable 

basis upon which to estimate, with some degree of certainty, 

the probable future losses occasioned by the death of decedent, 

such testimony should be admitted. Resner v. The N.P. Railway, 

supra; Krohmer v. Dahl, 145 Mont. 491, 402 P.2d 979. See 

Lavender v. Kurn, supra, for a general discussion of trends involving speculation and conjecture in ascertaining damages in 

FELA actions. 

Defendant was aware, pretrial, that plaintiff intended to 

call Dr. Heliker to testify to precisely those matters defendant 

now disputes. The opportunity to contest the accuracy of such 

testimony, through its own expert testimony, was available to 

defendant. However, it chose not to call an expert witness on 

these matters. 

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Issue 6. Did the trial court err in excluding the testimony of defendant's proposed witness S. M. Smiland, with respect 

to insurance benefits, wages, damages, etc.? 

We emphasize here that considerable pretrial discovery 

and discussion was had in this case, during which the identities 

of all witnesses were disclosed and listed in the pretrial order. 

However, the name of S.M. Smiland first appears following 

plaintiff's case-in-chief. There is no record plaintiff knew 

witness Smiland, or that he was present in Great Falls during 

a portion of the trial. He was never introduced to plaintiff 

and plaintiff was afforded no opportunity to talk to Smiland 

before his proposed testimony was to begin. Under the circumstances, it was certainly within the discretion of the trial 

judge to allow or disallow the witness to testify. Sanders v. 

Mount Haggin Livestock Co., supra. 

Issue 7. This issue concerns instructions given and refused 

by the trial court. 

Court's instructions No. 14 and No. 20 were objected to 

by defendant on the grounds a decedent father's comfort, protection, society, education and companionship are not proper 

elements of damage recoverable under the FELA. Instruction 

No. 14 provides in part: 

"You may also consider and award such sum as you 

may determine represents the pecuniary value of 

any loss, if any, sustained by the widow and the 

family by reason of being deprived of Gennaro Torchia's 

comfort, protection, society, education and companionship. In considering such pecuniary loss, you may 

consider the age and life expectancy of the wife and 

family in relation to the age of the decedent, the 

disposition of the deceased, whether it was kindly, 

affectionate, or otherwise, the degree of intimacy 

existing between the deceased and his family, their 

station in life, and such other facts shown by the 

evidence which may throw light upon such loss which 

the heirs reasonably might have expected to receive 

from the deceased, had he lived. * * *'I 
Instruction No. 20 states: 

"You are instructed that: 

"You have heretofore been instructed on damages 

which may be allowed to wife and family for the 

death of Gennaro Torchia. One of the elements 

of such damage is the pecuniary value of the 

society, comfort, care, companionship, protection 

and education the wife and family have lost by 

reason of his death. If you find from the evidence 

that the deceased did provide society, comfort, 

care, companionship, protection and education, 

which went to the moral or physical training and 

well-being of the widow and family, this loss if 

it has ,pecuriiary or .financial value, may be 

measured and compensated. * * *'I 

It is true damages under the FELA are measured by and 

limited to the pecuniary loss sustained by the survivors 

as a result of the death of the employee. Mellon v. Goodyear, 

277 U.S. 335, 48 S.Ct. 541, 72 L ed 906; Michigan Central R. 

Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L ed 417. 

Recovery is authorized only to the extent the survivors are 

shown to have been deprived of a reasonable expectation of 

financial benefits, assistance or support. Mellon v. Goodyear, 

supra; See Anno: 67 ALR2d 745,746. However, the pecuniary value 

associated with the loss of parental care, guidance and education 

the decedent would expectably have given his minor children, 

is recoverable under the FELA. Norfolk & Western R. Co. v. 

Holbrook, 235 U.S. 625, 35 S.Ct. 143, 59 L ed 392; Michigan 

Central R. Co. v. Vreeland, supra. 

In determining the extent of contribution which is 

reasonable to be anticipated by the beneficiaries, the jury 

may properly consider evidence the decedent was industrious, 

thrifty, kind and faithful to his family. Allendorf v. Elgin, 

Joliet & Eastern R. Co., 8 I11.2d 164, 133 N.~.2d 288, 79 ALR~~ 

241, cert. den. 352 U.S.833, 77 S.Ct. 49, 1 L ed 2d 53, reh.den. 

352 U.S. 937, 77 S.Ct. 219, 1L ed 2d 170. 
Contained within the court's instructions No. 14 and No. 20 

is language having the effect of limiting recovery to the 

pecuniary value of losses sustained. Further, the language 

speaks to limiting losses to Chose which the survivors reasonably might have expected to receive from decedent, had he lived. 

Plaintiff's evidence pertaining to the extent of the loss of 

parental care, guidance and education was ample and uncontradicted, as was the evidence demonstrating the decedent was industrious, thrifty, kind and faithful to his family. 

Thus, while there may have been minor variations in the 

instructions from the accepted measure of damages in FELA actions, 

they cannot be said to have prejudiced the defendant. The 

instructions were not totally confined to an FELA death action, 

there being variations but on those variations no evidence was 

adduced at trial. We find no prejudice. 

Defendant also objects to the giving of court's instruction 

No. 19, which provides: 

"You are instructed that: 

"In considering the loss of contribution to the 

family from future earnings of decedent you are 

instructed that you should first reduce future 

earnings to present value using a reasonable rate 

of discount for this purpose. The evidence as to 

annual inflation which has an effect on depreciating 

the value of a dollar should also be considered as 

to what extent such depreciation offsets the interest 

that could be earned on an award of future earnings. 

In addition, you may consider wage increases the 

deceased might have expected to receive in arriving 

at deceased's true loss of future earnings and 

earning capacity." 

As previously pointed out, this Court approves of consideration by the jury of the fact of inflation in arriving at an 

award for loss of future earnings, where the evidence as to 

annual inflation and related matters is presented, as here, in 

a competent manner. Resner v. The.N.P. Railway, supra. 
The trial court refused defendant's proposed instruction 

No. 8 as being duplicitous.' We find it to have been properly 

refused by the trial court. 

The court also refused to give defendant's proposed instructions No, 14, No. 15 and No. 16, on consideration of the impact 

of income taxes on damage awards. In so doing, the trial court 

was in accord with the weight of authority, Future income tax 

liability is not a proper consideration in an award for loss of 

future earnings. Bracy v. Great Northern Ry. Co., 136 Mont. 65, 

343 P.2d 848. 

Defendant relies on Burlington Northern, Inc. v. Boxberger, 

529 F.2d 284 (1975), for the proposition that future tax liability 

should be considered in making a damage award. A careful 

reading of Boxberger, however, discloses that it is an admitted 

departure from the majority position. The court therein stated 

rhat an instruction on the effect of future income tax liability 

is proper when competent evidence is brought forth at trial 

showing the likely amount of tax. Defendant here has made no 

such showing. , 

A further objection raised by defendant was to the form 

of the verdict approved by the trial court in that it includes 

items of compensatory damage not contemplated under the FELA, 

The same reasoning employed regarding defendant's objection to 

court's instructions No. 14 and No. 20 is no less applicable in 

this instance. Defendant was not prejudiced by the form of verdict 

in this case. 

Issue 8. This issue concerns the propriety of admission in 

evidence of conclusions contained in the Federal Railroad Administration Report of its investigation of the train wreck of May 11, 

1971. 45 U.S.C.541 states: 
"Neither the report required by section 38 of this title 

nor any report of the investigation provided for in 

section 40 of this title nor any part thereof shall be 

admitted as evidence or used for any purpose in any 

suit or action for damages growing out of any matter 

mentioned in said report or investigation ." 

During trial counsel for plaintiff read into the record, 

before the jury, a verbatim copy of certain conclusions contained 

in the accident report, which were incorporated into the complaint. 

Counsel was also permitted, over objection, to read to the jury 

an interrogatory to defendant and the amended answer thereto. 

The answer also contained accident report conclusions. In neither 

case was the report itself made a part of the record. At no time 

was the jury informed the statements being read were taken from 

the accident report or based on findings of the Federal Railroad 

Administration. 

This Court does not condone such a method of bringing potentially objectionable material before the jury. However, here the 

error, if any, was harmless. The manifest purpose of the prohibitive legislation is the prevention of the use in evidence of a 

report which, being issued by a federal agency, has the outward 

appearance of being conclusive on the facts. The evil to be 

avoided is the undue weight the jury would give to the report, 

denominated as such, over other evidence produced at the trial. 

Here, it was defendant's own answer to the interrogatory, 

produced at trial, which was the vehicle for introduction in 

evidence of certain of the report conclusions. We cannot see 

how this procedure, given the other evidence produced in this 

particular case, prejudiced defendant in a substantial manner. 

The judgment entered upon the verdict of the jury is 

affirmed. 

 on.. J~~HM. ~ortF, District 

w* Judge, sltting for Mr. Chief 

Justice Paul G. Hatfield. 
We Concur: 

/i Justices.