No. 84-485 

IN THE SIJPREME COURT OF THE STATE OF MONTANA 

1985 

JACK D. ANDERSON, 

Plaintiff and Respondent, 

BURLINGTON NORTHERN, INC., 

a Delaware Corporation, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moulton, Bellingham, Longo & Mather; K. Kent ~oolen 

argued, Billings, Montana 

For Respondent: 

Kelly & Halverson, P.C.; Sheehy, Prindle & Finn; 

Victor R. Halverson argued, Billings, Montana. 

Submitted: September 20, 1985 

Decided: November 26, 1985 

[$!fJy " *&(j Filed: J. r~ i 

C - 

f&4J&Y- 59, 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

This is an appeal from the District Court's granting of 

partial summary judgment on liability and jury verdict on 

damages in a personal injury action brought pursuant to the 

Federal Employers' Liability Act and the Federal Boiler 

~nspection Act. 

We considered the following issues on appeal: 

1. Whether the District Court erred in granting respondent's motion for partial summary judgment on the violation of the Boiler Inspection Act. 

2. Whether the District Court erred by improperly 

removing the i-ssues of causation from the jury. 

3. Whether the District Court erred in denying appellant's challenge for cause to juror Dailey. 

4. Whether the District Court committed reversible 

error in refusing to instruct the jury regarding the 

nontaxability of any award. made by the jury to injured railroad employee. 

5. Whether the District Court erred in instructing the 

jury to include medical expenses incurred by respondent in 

its damages award even though some or all of those expenses 

had been covered by appellant's insurer. 

6. Whether the District Court erred in adding a directed verdict for medical expenses to the jury award when 

the jury had been instructed. to include medical expenses in 

its award. 

We affirm the judgment of the District Court on all 

issues except the sixth. We reverse the District Court's 

directed verdict which added $11,795.25 to the jury verdict. 
Respondent, Jack D. Anderson, was a locomotive engineer 

employed by the appellant, Burlington Northern Railroad 

Company (BN), working on a train assigned to snowplow service 

north and west of Saco, Montana. During a lull in the operations, respondent entered a toilet compartment at the rear of 

the Locomotive. The toilet compartment is a small room about 

six feet wide by seven feet long used for storage of tools 

and equipment as well as providing toilet facilities for the 

crew. The compartment is dimly lit. 

Respondent claims that as he walked into the compartment, he tripped and stumbled head-on into the sandbrum on 

the opposite wall of the compartment. Without looking to see 

what may have caused his fall, respondent left the compartment and informed other crew members of the accident. The 

other crew members then checked the compartment and found a 

pilot, an iron skirt which serves as a cow catcher, on the 

floor of the compartment. Apparently, the pilot had been 

recently stored out-of-the-way in the compartment. The 

jerking from the snowplowing operation jarred the pilot out 

to a point in front of the compartment entrance where respondent tripped. 

As a result of the accident, respondent suffered from 

neck pain. He sought treatment from an orthopedic surgeon, 

Thomas Power, M. D., in Great Falls. A cervical sprain was 

diagnosed, and respondent was treated with rest, traction and 

physical therapy. Respondent continued to suffer from neck 

pain and went to an orthopedic surgeon in San Francisco, 

Arthur White, M.D. Dr. White diagnosed the injury as a 

herniated disc and performed a cervical fusion on August 1, 

1.978. The surgery relieved respondent's pain for awhile. 
However, the pain resumed and rendered the respond.ent 

incapable of working. 

Respondent then brought this action in the Eighth 

Judicial District to recover damages for personal injuries 

sustained within the scope of his employment as a locomotive 

engineer for BN. 

In the meantime, BN's insurer had paid respondent's 

medical expenses in accordance with a collective bargaining 

agreement. Respondent filed a motion in limine to prevent 

any mention of appellant's payment of the medical expenses 

during trial. Respondent maintained that the insured's 

payment of the medical expenses was a collateral source of no 

benefit to appellant. The District Court agreed and granted 

respondent's motion and directed a verdict in favor of respondent on his claim for medical expenses. The District 

Court also granted respondent's motion for partial summary 

judgment holding that the pilot on the floor of the toilet 

compartment constituted a violation of the Boiler Inspection 

Act for which defendant was strictly liable. The issues of 

causation and damages were submitted to the jury. The jury 

returned a verdict for damages of $195,000 to which the 

directed verdict of $11,795.25 for medical expenses was added 

for a total judgment of $206,795.25. RN appeals that 

judgment . 

Respondent's action is based upon violation by BN of 

two federal statutes known as the Boiler Inspection Act, 45 

U.S.C. § 22 et seq., (a portion of the Safety Appliance Act) 

and the Federal Employers ' Liability Act (FELA) , 45 U. S .C. 

§ 51 et seq. In particular, 45 U.S.C. S 23 provides: 

It shall be unlawful for any carrier to 

use or permit to be used on its line any 

locomotive unless said locomotive, its 
boiler, tender, and all parts and appurtenances thereof are in proper condition 

and safe to operate . . . that the same 

may be employed in the active service of 

such carrier without unnecessary peril 

to life or limb . . . 

In Callihan v. Burlington Northern, Inc. (~ont. 1982), 654 

P.2d 972, 975, 39 St.Rep. 2158, we followed the United States 

Supreme Court decision in 1,illy v. Grand Trunk R. Co. (1943), 

317 U.S. 481, 485, 63 S.Ct. 347, 87 L.Ed. 411, in holding 

that this section interacts with the FELA to impose absolute 

Liability on anyone that violates it. Callihan, 654 P.2d at 

975, also determined tha.t recovery for a Boiler Inspection 

Act violation requires a showing of: (1) a violation of the 

Act, and (2) injury proximately caused by that violation. 

Appellant here claims that whether or not the piece of 

pilot on the fl-oor violated the Boiler Inspection Act was a 

question of fact for the jury and that it was error for the 

District Court to grant summary judgment on that issue. A 

large iron object on the floor of a dimly ].it walkway in a 

moving locomotive seems to us to involve "unnecessary peril 

to life or limb" so as to violate the Act, but without more 

this would be a conclusion for the jury to make. However, in 

this case we are not left to our own resources in construing 

the Act. The Federal Rail-road Administration, Department of 

Transporta.tion, has set the standard by imposing the following railroad locomotive safety regulation: 

Floors of cabs, passageways, and compartments shall be kept free from oil, 

water, waste or any obstruction that 

creates a slipping, tripping or fire 

haza-rd. Floors shall be properly treated to provide secure footing. 
49 C.F.R. S 229.119(c). 

There is uncontroverted evidence that there was a pilot 

in the walkway in violation of this rule. In Lilly, 317 U.S. 

at 488, the United States Supreme Court, when faced. with a 

similar rule, held that a rule adopted in exercise of the 

Interstate Commerce Commission's authority to set standards 

of compliance with the Boiler Inspection Act acquires the 

force of law and becomes an integral part of the Act. Recause the Federal Railroad Administration has taken over the 

functions of the Interstate Commerce Commission with respect 

to railroad safety, 49 U.S.C. § 1655(e) and (f), this holding 

is directly applicable to the instant case. BN, by violating 

a rule that was adopted in exercise of the Federal Railroad 

Administration's authority to set standards of compliance 

with the Boiler Inspection Act, has also violated the Act. 

Appellant questions whether this rule was properly 

before the District Court. However, the rule was referred to 

in depositions presented with the motion for summary judgment. Moreover, in Lilly, supra, the federal rule had not 

been called to the attention of the trial court. The Supreme 

Court held that it will take judicial notice of federal rules 

setting standards of compliance with the Boiler Inspection 

Act. Lilly, 317 U.S. at 488. We will not ignore the federal 

rule now. 

Even if there was no violation of the Act as a matter 

of law because of the federal regulation, the District Court 

could have found the violation issue proper for summary 

judgment because of BN's own safety rule No. 112 which was 

before the court. Rule No. 112 provides: 

To avoid stumbling, tripping, and falling, floors, gangways and steps of 
locomotives must be kept free of supplies, tools, and loose equipment. 

Such a safety rule is strong evidence that a violation of 

that rule would present "unnecessary peril to life and limb." 

Eecause appellant has provided nothing to counter this evidence of a Boiler Inspection Act violation, summary judgment 

was appropriate. 

II 

The second prong of our test for recovery under the 

Boiler Inspection Act is whether the violation of the Act 

proximately caused plaintiff 's in jury. Callihan, supra. RN 

argues that the District Court failed to properly consider 

the issue of causation. We disagree. 

By granting summary judgment on liability, the District 

Court took the issue of whether BN1s viol-ation of the Boiler 

Inspection Act caused the accident from the jury. Appellant, 

however, claims that there was insufficient evidence to 

establish the cause of respondent's accident because respondent did not see what he tripped over and the other witnesses 

did not see the accident. Appellant then speculates that 

respondent may have tripped over something besides the pilot. 

However, we follow the rule that inferences drawn from circumstantial evidence can be as probative as direct evidence. 

Barich v. Ottenstror (1976) , 170 Mont. 38, 42, 550 P. 2d 395, 

397. Furthermore, the party opposing a motion for summary 

judgment on a record which reveals no issue of material fact 

must present facts of substantial nature, and conclusionary 

or speculative statements are insufficient to raise genuine 

issues of material fact. Barich, supra; Rule 56, M.R.Civ.P. 

The depositions establish that respondent went into the 

toilet compartment and fell, hurting his head and shin. 
Respondent's co-workers saw him enter the compartment, heard 

a "thump" and a shout, saw respondent come out of the compartment, listened to respondent's immediate complaints, and 

immediately investigated the compartment where they found the 

pilot near the door. The obvious inference from this evidence is that respondent tripped over the pilot. Appellant 

only speculates that something else caused the accident. As 

such, the trial court was entitled to conclude that BN's 

violation of the Boiler Inspection Act in not keeping a 

walkway free of obstructions caused the accident. 

Appellant also argues that the jury was improperly 

instructed on the issue of causation. The same argument that 

the jury failed to consider causation under similar facts to 

the instant case was considered by this Court in Callihan, 

supra. In Callihan, plaintiff injured his back when the seat 

he was sitting on in a BN locomotive broke. We held that the 

jury was properly instructed on the issue of causation where 

instructions clearly limited the award of damages to damages 

for injuries proximately caused by the accident. Callihan, 

654 P.2d at 975. In the instant case, Court Instruction No. 

7 stated: 

In this case, Plaintiff seeks damages 

under a law of the United States commonly called the Federal Boiler Inspection 

Act. It has been determined by this 

Court that on February 28, 1978, at the 

time of the fall for which Jack Anderson 

seeks to recover, the Defendant, 

Burlington Northern, Inc., was in violation of the Federal Boiler Inspection 

Act, by reason of the presence of a 

piece of metal pilot in the entry way to 

the toilet compartment of Burlington 

Northern locomotive number 1820. 

Therefore, the only issues for your 

consideration are: 
(1) Whether Plaintiff was injured as a 

result of the acciden-t occurring on 

February 28, 1978; and 

(2) The amount of damages, if any, 

Plaintiff is entitled to receive for any 

injuries which you may find were caused 

by the accident of February 28, 1978. 

Court Instruction No. 12 instructed the jury similarly. As 

such, the iury was not improperly instructed on the issue of 

causation. 

I11 

Appellant specifies that the District Court erred in 

not disqualifying juror Dailey upon challenge for cause. We 

adhere to the rule that the trial court is in a better position to judge the prejudice of jurors and its findings and 

its decision will not be set aside unless the error is manifest or there j.s a clear abuse of discretion. Liss v. 

KreiteL (1973), 162 Mont. 144, 147, 509 P.2d 841, 843. The 

rule is the same where there has been the forced use of a 

peremptory challenge. Abernathy v. Eline Oil Field Services, 

Inc. (1982), 650 P.2d 772, 777, 39 St.Rep. 1688, 1696. 

Here, during appellant's voir dire of prospective iuror 

Dailey, Dailey revealed that he is a grain farmer that utilizes BN yearly to ship his grain. He stated that he felt RN 

was grossly overcharging for its services. Appellant challenged the juror for cause. The trial judge then questioned. 

Dailey to determine if he held any feelings of animosity 

toward EN that would preclude him from awarding damages 

fairly. Dail-ey denied any such animosity, and the judge 

denied the challenge. While we think it may have been best 

to dismiss Dailey because other jurors were readily available, we can see no abuse of discretion. 
IV 

RN contends that the trial court erred in failing to 

instruct the jury on the nontaxability of any award made by 

the jury. We recently considered the same argument in Dallas 

v. Burlington Northern, Inc. (Mont. 1984), 689 P.2d 273, 277, 

41 St.Rep. 1902, 1908. The Federal Circuit Courts of Appealare not in agreement on this issue. See Flanagan v. 

Burlington Northern, Inc. (8th Cir. 1-980), 632 F.2d 880, 889, 

and O'Byrne v. St. Louis Southwestern Ry. (5th Cir. 1980), 

632 F.2d 1285, 1287. We will adhere to our holding in Dal- 

- las, 689 P.2d at 278, that in a case where the jury awards 

the exact amount of damages projected by the economist any 

error in failing to give a nontaxability instruction is 

harmless. This holding was based on the rationale that the 

jury clearly did not award a sum for some future tax 

obligation. 

In the instant case, the jury awarded $195,000, or 

$45,000 less than the $240,000 in damages projected by the 

economist. Therefore, by the rationale in Dallas, any error 

in failing to give the nontaxability instruction is harmless. 

Having thus held, we are compelled to comment that in 

the future it would be better for a trial court to give a 

nontaxability instruction to the jury. Such an instruction 

is easily made and would remove any doubt as to whether the 

jury overcompensated plaintiff on the basis of an erroneous 

assumption that the judgment will be taxed. We make this 

comment because of trial courts' reliance on previous holdings by this Court that future income tax liability is an 

improper consid-eration in formulating an award for loss of 

future earnings. See Torchia v. Burlington Northern, Inc. 

(1977), 174 Mont. 83, 96, 568 P.2d 558, 566; McGee v. 
Rurlirlgton Northern, Inc. !1977), 174 Mont. 466, 477, 571 

P.2d 784, 791. Those holdings have been overruled by the 

TJni.ted States Supreme Court in Norfolk & Western 13.y. v. 

Liepelt (1980), 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689. 

After Liepelt, it is proper to give the nontaxability 

instruction. 

The medical expenses Anderson incurred for trea.tment of 

the injuries he sustained in the February 28, 1.978, accident 

were paid directly by Travelers' Insurance Company; or, they 

were paid by Burlington Northern and Burlington Northern was 

reimbursed by Travelers. Prior to trial, Anderson's motion 

in limine to prohibit EN from showing that BN or Travelers 

had paid these expenses was granted. EN claims that the 

trial court erred. in excluding this evid.ence because that 

evidence shows Anderson incurred no loss for medical expenses 

related to the accident. The trial court excluded the evidence because the insurance was a collateral source. 

The insura.nce arrangement was under Travelers Group 

Policy No. GA2300. This policy was obtained pursuant to a 

health. and welfare agreement between participating ra.il 

carriers and numerous ra.ilway labor organizations, including 

the Brotherhood of Locomotive Engineers of which appellant is 

a member. BN argues that evidence of benefits obtained by 

Anderson through this policy should be admitted because the 

insurance is not a collateral source. For proof that the 

insurance is not a collateral source, EN points to the health 

and welfare a-greement which specifically states: 

. . . The parties . . . intend that 

benefits provid.ed under the policy 

contract will satisfy any right of 
recovery against the employing railroad 

for such benefits to the extent of the 

benefits so provided. Accordingly, 

--(I) Benefits provided under the policy 

contract will be offset against any 

right of recovery the employee may have 

against the employing railroad for 

hospital, surgical, medical or related 

expenses of any kind specified in the 

policy contract. 

The collateral source rule has been applied in an FELA 

setting by the federal circuit courts with the only question 

being whether the insurance is in fact a collateral source. 

See generally Patterson v. Norfolk and Western Railway Co. 

(6th Cir. 1973), 489 F.2d 303; Blake v. Delaware and Hudson 

Railway CO. (2nd Cir. 1973), 484 F.2d 204- Title 45 U-S-C* 

S 55 of the FELA broadens application of the collateral 

source rule with respect to the circumstances in the instant 

case. That statute is as follows: 

Any contract, rule, regulation, or 

device whatsoever, the purpose or intent 

of which shall be to enable any common 

carrier to exempt itself from any liability created by this chapter, shall to 

that extent be void: Provided, That in 

any action brought against any such 

common carrier under or by virtue of any 

of the provisions of this chapter, such 

common carrier may set off therein any 

sum it has contributed. or paid to any 

insurance, relief benefit, or indemnity 

that may have been paid to the injured 

employee or the person entitled thereto 

on account of the injury or death for 

which said a-ction was brought. 

The United States District Court for the District of Montana 

has recently interpreted this statute as it applies to the 

same health and welfare agreement we are dealing with here in 

an order issued by Chief Judge Battin in the case of John L. 

Herbst v. Burlington Northern Railroad Co., CV-84-5l-l3LG. 

Judge Battin determined that 45 U.S.C. § 55 allows BN to "set 

off only the premiums, not what the premiums bought" and 

prevents BN "from contracting away the benefits of S 55 as 
was attempted by the Health and Welfare Agreement between the 

union and the railroad." As a result, Judge Battin granted 

Herbst's motion in limine to prevent introduction of medical 

expenses already paid by BN and its insurance company. We 

will follow Judge Battin's interpretation of 45 U.S.C. S 55 

and hold that the provision of the collective bargaining 

agreement relied upon by BN is void. Accordingly, the collateral source rule applies to the paid medical expenses, and 

the trial court properly prevented introd.uction of evidence 

as to their payment. 

Along with the jury verdict for damages of $195,000, 

the District Court added a directed verdict of $11,795.25 for 

medical expenses. However, the District Court's jury Instruction No. 12 states: 

. . . The amount of any award shall 

include : 

1. The reasonable value of medical care, 

services and supplies reasonably required and actually given in the treatment of Plaintiff . . . 

BN complains that this instruction plus the directed verdict 

and. the insurance paid medical expenses results in triple 

recovery by Anderson for incurred medical expenses. The 

point is well taken. 

It is reversible error to instruct a jury to include 

medical expenses in its award and. then to add a directed 

verdict for the same medical expense on top of the jury 

award. 

We therefore affirm the judgment for $1-95,000 but 

reverse the directed verdict of $11,795.25. 
We concur: 

Justices" 

/ i 

L" f 

, /-I // p ,$ "2 LL-LHoq. Jack L. Green, District 

Judge, sitting in place of Mr. 

Justice John C. Sheehy, who 

deems himself disqualified