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Plourd v. Southern Pacific Transportation Co.

September 10, 1973

PLOURD, RESPONDENT,
v.
SOUTHERN PACIFIC TRANSPORTATION COMPANY, APPELLANT



Appeal from Circuit Court, Lane County. Edward Leavy, Judge.

James H. Clarke, Portland, argued the cause for appellant. With him on the brief were Dezendorf, Spears, Lubersky & Campbell, Portland, and Wayne Hilliard and Richard H. Williams, Portland.

Edward J. Niland, San Jose, California, argued the cause for respondent. With him on the briefs were Boccardo, Blum, Lull, Niland, Teerlink & Bell, San Jose, California, and Gearin, Landis & Aebi, Portland, and John Gordon Gearin, Portland.

Tongue, Justice. Holman, Justice, concurring in the result. Denecke, Presiding Justice, Howell, and Bryson, Justices, join in this concurring opinion.

Tongue

This is an action for damages for personal injuries sustained by a brakeman on a freight train when, in the process of stopping that 74-car train, the "slack ran in" with such violence as to throw plaintiff to the floor of the caboose. The case was tried before a jury, which returned a verdict in favor of plaintiff in the sum of $400,000.

Defendant does not deny that there was sufficient evidence to take the case to the jury, but contends that it is entitled to a new trial because of various errors.

1. The trial court erred in submitting to the jury a specification not supported by any substantial evidence.

Plaintiff's complaint was in two counts. Count I alleged that defendant violated the Federal Employers' Liability Act, 45 USC §§ 51 et seq, in failing to provide plaintiff a safe place to work. More specifically, plaintiff's complaint alleged that defendant "failed to maintain and operate cars and train in a safe manner and further failed to equip, repair, maintain, and operate brakes on cars and the engine in a proper manner" in various respects, as specifically alleged. Count II alleged that defendant violated not only the F.E.L.A., but also the Boiler Inspection Act, 45 USC §§ 22-34, and the Safety Appliance Act, 45 USC §§ 1-16, in various respects, as also specifically alleged.

Defendant first assigns as error: (1) the giving of lengthy instructions relating to requirements of the Boiler Inspection Act and Safety Appliance Act; (2) the giving of an instruction that assumption of risk is not a defense in such a case, and (3) the failure to withdraw from the jury plaintiff's charges in both Counts I and II relating to operating a train on which the air hose chain was broken.

There was some evidence that some of the brake shoes on one of the locomotives were worn and thin and that this may have been "a contributing cause" to the sudden and unexpected slack action. There was no evidence, however, that a broken air hose chain had anything to do with that "slack action." The only evidence was that there was a broken air hose chain on one of the freight cars, so as to permit the air hose on that car to hang so low that it might be damaged.

There was no evidence, however, that the air hose on that or any other car was damaged or otherwise defective.

Because of the evidence relating to the brake shoes on one of the locomotives, plaintiff was entitled to some instruction relating to the Boiler Inspection Act, if not also the Safety Appliance Act. It may be that the instructions as requested and given on those two acts were more extensive and detailed than proper. Defendant's primary exception, however, was to the giving of any instruction under the Boiler Inspection Act. Its further exceptions relating to the content of such instructions are not entirely clear to us from the record.

We agree with defendant that the instruction on assumption of risk was not necessary, there being no such issue in this case. Whether the giving of that instruction constituted prejudicial error so as to alone require a new trial, is another matter.*fn1

In any event, we hold that it was both improper and prejudicial for the trial court to refuse to withdraw the specifications from both Counts I and II relating to the broken air hose chain. It is well established in Oregon that it is error to submit to the jury any specification of negligence unsupported by evidence and that this rule is also applicable in actions under the Federal Employers' Liability Act. See Alvarez v. Great North. Railway Co., 261 Or 66, 75-77, 491 P2d 190 (1971), and cases cited therein.

Plaintiff says that defendant's motion was not sufficiently specific, but was a motion to strike the specifications relating to both the worn brake shoes and the broken air hose chain. The record shows that defendant's motion was to strike all of the allegations of Paragraph VII, subdivision 2 of Count I, which alleged both worn brake shoes and broken air hose chain. Defendant also moved to strike "each" of the two specifications of Paragraph IV of Count II (one of which alleged worn brake shoes and the other alleged the broken air hose chain). As a result, the attention of the court was sufficiently directed to the specification in each count relating to the broken air hose chain and it was error to fail to strike that specification in each count.

Plaintiff also says that the failure to strike and to withdraw that specification from each count of the complaint was not prejudicial because "the admitted existence of the broken air hose chain was not a significant factor in plaintiff's case." Because, however, there were only two other specifications of defective equipment (in addition to the specification in Count I of failure to properly operate the brakes and throttle), we cannot say that the broken air hose chain was not a "significant factor" in the deliberations by the jury in arriving at its verdict in this case. Accordingly, we hold that defendant is entitled to a new trial because of this error.

2. The trial court erred in failing to instruct the jury that any award for loss of future wages must be on the basis of the present value of such benefits.

Defendant next assigns as error the failure of the trial court to give its requested instruction to the jury that any award for loss of future wages and other

pecuniary benefits must be on the basis of the present value of such benefits. Cases holding that such an instruction must be given in cases under the Federal Employers' Liability Act include Ches. & Ohio Ry. v. Kelly, 241 U.S. 485, 488-91, 36 S Ct 630, 60 L ed 1117 (1916), and Gulf, C. & S.F. Ry. v. Moser, 275 U.S. 133, 135-36, 48 S Ct 49, 72 L ed 200 (1927).

In Meier v. Bray, 256 Or 613, 618, 475 P2d 587 (1970), we held that an award of damages in an action for wrongful death must be reduced to present value. More recently, and since the trial in this case, we also held in Osborne v. Bessonette/Medford Mtrs, 265 Or 224, 508 P2d 185 (1973), for much the same reasons, that in an action for personal injuries, an award for loss of future wages or for impairment of future earning capacity must also be reduced to present value.

We therefore must hold that the trial court erred in failing to give such an instruction in this case.*fn2 We need not decide in this case whether the failure to give such an instruction alone constitutes error so prejudicial as to require a new trial because the trial court also erred in failing to withdraw a specification of negligence unsupported by any substantial negligence.

3. The trial court did not err in permitting plaintiff's expert witness to assume continued future increases in wage rates for the purpose of computing the present value of a proposed award for loss of future wages.

Defendant also assigns as error the admission

of opinion testimony by a professor of economics called by plaintiff as an expert witness. That witness was permitted, over objection, to explain a computation of plaintiff's claim for loss of future wages, as shown by a large exhibit on butcher paper, which was also received in evidence. Defendant contends that it was error to permit this witness, based upon past history of wage increases, to project future wage increases for the next 23 years at an average of 5 per cent per year.*fn3

The problem presented by this assignment of error is discussed in 2 Harper and James, The Law of Torts 1325-326, § 25.11 (1956), as follows:

"Greater confusion surrounds present damages for future loss. Future trends in the value of money are necessarily unknown and so always render such damages speculative in a way we cannot escape. If the estimates represent a straight-line projection of present living costs, they ...


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