Ewing v. Esterholt

No. 83-372

IN THE SUPREME COURT OF THE STATE OF MONTANA
1984

ROBERT C. ETilING,
Plaintiff and Respondent,

DON L. ESTERHOLT, WILLIAM P. ORDWAY
d/b/a FROMBERG SCRAP, JAKES K. LAFEVER
and UNITED PARCEL SERVICE, a corp.,
Defendants and Appellants.

APPEAL FROM: District Court of the Eleventh Judicial District,
Inand for the County of Flathead,
The Honorable Joseph B. Gary, Judge presiding.

COUNSEL OF RECORD:

For Appellants:
Hash, Jellson, O'Brien & Bartlett; Kenneth E. O'Brien,
Kalispell, Montana

For Respondent :

Keller & German; Robert S. Keller, Kalispell, Montana

Submitted on Briefs: December 8, 1983
Decided: June 7, 1984

Filed: ,,blu ( JvLi
. i . i ~,

- -
- - --
Clerk
Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f
the Court.

T h i s c a s e a r o s e o u t o f a t r a f f i c a c c i d e n t which t o o k

place i n 1977 n e a r S o m e r s , Montana. After a jury verdict
was e n t e r e d , t h e D i s t r i c t C o u r t g r a n t e d a new t r i a l on t h e

m o t i o n of r e s p o n d e n t Ewing. D e f e n d a n t s L a F e v e r and U n i t e d
Parcel Service, ( h e r e i n a f t e r UPS) appeal from t h i s o r d e r ,
f r o m s e v e r a l j u r y i n s t u c t i o n s g i v e n and r e f u s e d , and f r o m a
ruling allowing one of plaintiff's expert witnesses to

testify.
On O c t o b e r 3 1 , 1 9 7 7 , d e f e n d a n t E s t e r h o l t was d r i v i n g a

truck-trailer c o m b i n a t i o n n o r t h on U.S. Highway 9 3 a l o n g t h e
west s h o r e of Flathead Lake. Appellant LaFever followed
E s t e r h o l t d r i v i n g a UPS v a n . J u s t s o u t h o f Somers, Montana,
the two vehicles proceeded up a hill in this order,

traveling a t approximately ten to f i f t e e n miles p e r hour
until they reached the crest of the hill. As they

descended, both vehicles began to pick up speed. A

no-passing z o n e e x t e n d e d downward f r o m t h e t o p o f t h e h i l l
f o r s e v e r a l hundred f e e t , b u t when t h i s z o n e e n d e d L a F e v e r
p u l l e d i n t o t h e l e f t l a n e and b e g a n t o p a s s E s t e r h o l t .

During t h e c o u r s e of the pass Esterholt continued t o
increase his speed, causing LaFever to proceed into a

no-passing zone to overtake him. This was complicated
f u r t h e r by t h e f a c t t h a t t h e highway c u r v e d s h a r p l y t o t h e

r i g h t a t t h e bottom of t h e h i l l . When L a F e v e r r e a c h e d t h e
rear of Esterholt's cab, he s a w a n oncoming v e h i c l e w h i c h

was f l i p p i n g i t s l i g h t s a l t e r n a t i v e l y f r o m b r i g h t t o dim t o
call attention to itself. LaFever e l e c t e d t o c o m p l e t e t h e
p a s s r a t h e r t h a n s l o w i n g down t o r e t u r n t o h i s l a n e b e h i n d
Esterholt. LaFever c o m p l e t e d t h e p a s s a n d r e t u r n e d t o h i s
l a n e , m i s s i n g a head on c o l l i s i o n w i t h t h e oncoming v e h i c l e
by a p p r o x i m a t e l y t w e n t y f e e t . T h e r e was no c o n t a c t b e t w e e n
t h e LaFever and E s t e r h o l t v e h i c l e s .
Shortly after t h e p a s s was c o m p l e t e d , the Esterholt

v e h i c l e overturned i n t o t h e o t h e r l a n e of traffic, causing
t h e d e a t h s of t h r e e p e o p l e i n a n oncoming c a r a n d i n j u r i n g
r e s p o n d e n t Ewing i n t h e f o l l o w i n g oncoming c a r . The p r i m a r y
q u e s t i o n i n t h e c a s e i s why E s t e r h o l t ' s v e h i c l e o v e r t u r n e d .

E s t e r h o l t and r e s p o n d e n t Ewing c o n t e n d t h a t LaFever c u t s o
c l o s e l y i n f r o n t of E s t e r h o l t t h a t h e was f o r c e d t o t u r n

s h a r p l y t o a v o i d h i t t i n g him, which c a u s e d h i s l o a d t o s h i f t
and t h e t r u c k t o o v e r t u r n . However, LaFever c o n t e n d s t h a t
he was s a f e l y p a s t E s t e r h o l t when t h e a c c i d e n t o c c u r r e d . He

contends Esterholt was simply traveling too fast to
negotiate the curve, and the truck began to slide t o the
o u t s i d e of t h e c u r v e from c e n t r i f u g a l f o r c e and e v e n t u a l l y

tipped over.
The t r i a l was n o t h e l d u n t i l o v e r f i v e y e a r s a f t e r t h e

accident occurred, a t which time the plaintiff introduced
i n t o evidence a diagram of t h e a c c i d e n t scene. The d i a g r a m

had b e e n drawn by a Montana D e p a r t m e n t o f Highways e n g i n e e r
using the figures obtained by the investigating highway

patrolmen. On the diagram the tire s k i d marks made by
E s t e r h o l t ' s v e h i c l e w e r e shown. The s k i d m a r k s were p l a c e d

i n t h e e a r l y p a r t of t h e c u r v e , w h e r e t h e r o a d was s t i l l
relatively straight.
P l a i n t i f f c a l l e d a n e x p e r t on a c c i d e n t r e c o n s t r u c t i o n ,
Dennis P a r r , a s p a r t of h i s c a s e i n c h i e f . His testimony
was based on the diagram, the figures and distances
contained in the patrolmen's notes, and his own
investigation of the accident scene. Since he was not
consulted until over a year after the accident occurred, he
had to rely on second hand information as to the placement
of the skid marks. He was able to make his own measurements
to determine the radius or sharpness of the curve. Based on
the data accumulated, he found that the radius of the curve
was 1,950 feet at the point where the skid marks were
placed. Based on that figure and his computations, Parr
testified that Esterholt would have to have been traveling
at 105 to 110 miles per hour for those skid marks to have
come from his vehicle sliding sideways from centrifugal
force, as LaFever testified.
Parr had also interviewed several eyewitnesses to the
accident, who stated that the point where the skid marks
were placed was also the point where LaFever cut in front of
Esterholt. Since he had already concluded that the skid
marks could not have been caused by Esterholt sliding
sideways from centrifugal force, he theorized that they must
have come from the truck sliding sideways after LaFever cut
in front of him.
At the close of Ewing's case, LaFever and UPS
presented their evidence and recalled one of the highway
patrolmen, questioning the accuracy of the tire mark
placement on the diagram. After several discussions, the
patrolman concluded that they had been incorrectly placed on
the diagram. He so testified, and further stated that they
should have been placed further into the curve where the
radius was sharper.
Counsel for Ewing immediately asked to be heard in
c h a m b e r s where h e r e q u e s t e d a c o n t i n u a n c e b a s e d on a l l e g e d
surprise, or in the alternative a mistrial. Af t e r
c o n s i d e r a b l e d i s c u s s i o n i n chambers, t h e t r i a l judge denied

t h e m o t i o n f o r c o n t i n u a n c e and t o o k t h e m o t i o n f o r m i s t r i a l
under advisement.

When appellant's accident reconstruction expert
testified, he e s t i m a t e d t h a t t h e r a d i u s o f t h e c u r v e where
t h e t i r e m a r k s now l a y was b e t w e e n 1 , 9 5 0 f e e t a n d 825 f e e t .
Based on t h a t e s t i m a t e h e f u r t h e r t e s t i f i e d t h a t E s t e r h o l t
c o u l d h a v e l e f t t h e s l i d i n g m a r k s t r a v e l i n g a t beween 50 and

60 m i l e s p e r hour. Respondent's expert, Parr, testified
t h a t h e c o u l d n o t h o n e s t l y a d v i s e t h e j u r y on t h e c a u s e o f
t h e a c c i d e n t a f t e r t h e new p l a c e m e n t o f t h e s k i d m a r k s , g i v e n
t h e s h o r t p e r i o d o f t i m e h e had t o a n a l y z e t h e c h a n g e .

At the conclusion of the trial, the jury found no
n e g l i g e n c e on t h e p a r t o f LaFever, but did find Esterholt
negligent and assessed damages against him. Shortly
t h e r e a f t e r r e s p o n d e n t moved f o r a new t r i a l on t h e g r o u n d s
that the patrolman's change of testimony amounted to
accident and surprise which he could not have guarded

against. B r i e f s w e r e f i l e d and o r a l a r g u m e n t s h e a r d , a f t e r
w h i c h t h e m o t i o n f o r a new t r i a l was g r a n t e d . From t h i s

o r d e r and o t h e r r u l i n g s d u r i n g t h e c o u r s e o f t h e t r i a l , t h i s
appeal is taken.
The f o l l o w i n g i s s u e s a r e p r e s e n t e d by a p p e l l a n t :

(1) Did t h e t r i a l c o u r t e r r by g r a n t i n g t h e m o t i o n f o r

a new t r i a l ?
(2) Did the trial court err in refusing to give
a p p e l l a n t ' s p r o p o s e d i n s t r u c t i o n s n o s . 11 a n d 1 3 ?
(3) Did the trial court err in refusing to grant
defendant a continuance or exclude respondent's expert
witness?
( 4 ) Did t h e t r i a l c o u r t e r r i n a l l o w i n g r e s p o n d e n t ' s
expert witness t o give h i s opinion concerning respondent's
income l o s s p r e d i c a t e d upon work l i f e e x p e c t a n c y a s o f the

t r i a l d a t e r a t h e r t h a n t h e d a t e of t h e a c c i d e n t ?

( 5 ) Did t h e t r i a l c o u r t e r r i n a l l o w i n g r e s p o n d e n t ' s
expert witness to testify concerning loss of corporate
p r o f i t s a s evidence of respondent's l o s t p r o f i t s ?

With r e s p e c t t o t h e f i r s t i s s u e , t h i s C o u r t h a s s t a t e d
c o n s i s t e n t l y t h a t " [ T l h e g r a n t i n g o f a new t r i a l i s w i t h i n

the sound discretion of the trial court and its order
granting a new trial will be reversed only for manifest

abuse of that discretion." Haynes v . County of Missoula
(1973), 1 6 3 Mont. 270 a t 278, 517 P.2d 370 a t 375.
Respondent moved for a new trial based on the grounds

enumerated i n S e c t i o n 25-11-102(3), MCA, t h a t t h e change i n
testimony amounted to " [A] c c i d e n t or surprise which
o r d i n a r y prudence could n o t have guarded a g a i n s t ..."
The c r i t e r i a which m u s t b e m e t b e f o r e a new t r i a l may
b e g r a n t e d on t h e g r o u n d s o f s u r p r i s e w e r e f i r s t a n n o u n c e d
by t h i s C o u r t i n H i l l v. McKay ( 1 9 0 8 ) , 36 Mont. 440, 9 3 P.
3 4 5 , w h e r e we s a i d :

"* * * i t i s t h e g e n e r a l r u l e t h a t a new
t r i a l w i l l b e g r a n t e d on t h e g r o u n d o f
s u r p r i s e o n l y when i t i s c l e a r l y shown
t h a t t h e movant was a c t u a l l y s u r p r i s e d ,
t h a t t h e f a c t s from which t h e s u r p r i s e
r e s u l t e d had a m a t e r i a l b e a r i n g on t h e
case, that the verdict or decision
r e s u l t e d m a i n l y from t h e s e f a c t s , t h a t
t h e alleged condition is not t h e r e s u l t
of movantls own inattention or
n e g l i g e n c e , t h a t he h a s a c t e d promptly
and c l a i m e d r e l i e f a t t h e e a r l i e s t
o p p o r t u n i t y , t h a t h e h a s u s e d e v e r y means
r e a s o n a b l y a v a i l a b l e a t t h e t i m e of t h e
 s u r p r i s e t o remedy t h e d i s a s t e r , and t h a t
t h e r e s u l t o f a new t r i a l w i l l p r o b a b l y
be d i f f e r e n t . " 36 Mont. 4 4 6 , 9 3 P. a t
347.
T h e s e c r i t e r i a w e r e c o n f i r m e d i n a more r e c e n t c a s e ,

Morris v. C o r c o r a n Pulpwood Co. (1970), 1 5 4 Mont. 468, 465
P.2d 827.

Appellant contends t h a t t h r e e of t h e above c r i t e r i a

are absent from this case. First he contends that
r e s p o n d e n t c o u l d h a v e p r e v e n t e d t h i s s u r p r i s e and f o u n d t h e

mistake by exercising ordinary prudence, arguing that
appellant's a t t o r n e y found t h e m i s t a k e by e x e r c i s i n g such

ordinary care. However, i t was n o t o r d i n a r y p r u d e n c e , but
e x t r a o r d i n a r y s c r u t i n y which found the mistake. As the
t r i a l j u d g e n o t e d i n h i s memorandum i n s u p p o r t o f h i s r u l i n g
g r a n t i n g t h e new t r i a l , t h e m i s t a k e was n o t u n c o v e r e d when
a p p e l l a n t c r o s s examined t h e p a r t o l m a n on t h e f i r s t d a y o f
trial. Moreover, s e v e r a l e x p e r t s had examined the chart

o v e r a p e r i o d o f a l m o s t s i x y e a r s and t h e e r r o r h a d n o t b e e n
f o u n d by a n y o n e . Whether t h e m i s t a k e c o u l d h a v e b e e n f o u n d

by e x e r c i s i n g o r d i n a r y p r u d e n c e i s a q u e s t i o n o f f a c t w h i c h
was r e s o l v e d i n f a v o r o f r e s p o n d e n t b y t h e t r i a l j u d g e on

t h e f a c t s p r e s e n t e d ; i t was c l e a r l y w i t h i n h i s d i s c r e t i o n t o
do so.
Appellant n e x t contends t h a t t h e change i n p o s i t i o n of

t h e t i r e t r a c k s d i d n o t h a v e a m a t e r i a l b e a r i n g on t h e c a s e ,
and the verdict did not result from this change. The

f a l l a c y of t h i s a s s e r t i o n is r e a d i l y a p p a r e n t . The u l t i m a t e
issue of this case was what caused the truck-trailer
combination to capsize. The testimony at trial became
p o l a r i z e d a r o u n d two p o s s i b l e e x p l a n a t i o n s f o r t h e a c c i d e n t ,
w h i c h were p r e s e n t e d b y t h e e x p e r t t e s t i m o n y o f f e r e d b y b o t h
sides. Essential to resolution of this problem was the
accurate placement of the skid marks, and their mistaken
placement was what surprised respondent. It could not
reasonably be said that the mistake did not have a material
bearing on the case. Whether the mistake brought about the
verdict is a question that could not be answered with
certainty, as many factors contribute to a jury verdict. As
pointed out by respondent, his expert could not give an
opinion on the cause of the accident after the placement of
the skid marks was changed. This further lessened his
credibility which was impugned when the mistake was initally
uncovered. As the testimony unfolded, the case became a
question of which experts' theory was correct, and any loss
of credibility would have a major impact on the outcome.
The trial judge was clearly within his discretion in finding
that the verdict resulted from the surprise.
Finally, appellant contends that the result of a new
trial will not be different. The focus of appellant's
attention is on the affidavit submitted with respondent's
motion for a new trial, which it claims includes nothing
to indicate that a new trial would result in a different
verdict. However, it is not from the affidavit alone that
this determination is made, but from the facts and
circumstances of the case itself.
The standard is whether the result of the new trial
will probably be different. In making this determination,
the trial court must look not only at the impact of the new
facts underlying the surprise, but at the impact of the
surprise on the trial as a whole. The different result
expected need not be drastically different, and may not be,
especially where as here the jury is dealing with
percentages of liability. As noted above, the impact of the
surprise on the presentation of respondent's case was great,
a fact which was acknowledged by counsel for appellant
during discussions held in chambers. The trial judge stated
in his memorandum in support of the order granting the new
trial that there is a "likelihood" that the result would be
different, and we find no cause to differ from this opinion.
Without delving into the semantics of this requirement we
will defer to the decision of the experienced District Court
Judge who tried the case. In his opinion the result of a
new trial without the surprise would probably be different.
It was clearly within his discretion to draw such a
conclusion.
Appellant's next two specifications of error deal with
jury instructions. Appellant obtained a favorable verdict
in spite of the alleged errors, thus it seems ambiguous to
contend there were such errors. However as we are affirming
the order granting the new trial and similar instructions
will likely be proposed there, we do not deem it premature
to rule on the propriety of the instructions.
Appellant first contends that its proposed instruction
no. 11 was improperly refused. The proposed instruction
read:
"You are instructed that the driver of a
motor vehicle is not obliged to
anticipate negligence on the part of
other drivers using the roadway. A
person who, himself, is exercising
ordinary care has the right to assume
that others, too, will perform their duty
under the law, and he has a further right
to rely and act on that assumption. Thus
it is not negligence for such a person to
fail to anticipate an accident which can
happen only from a violation of law or
 d u t y by a n o t h e r . "

Appellant simply a r g u e s t h a t t h e proposed i n s t r u c t i o n
is a proper statement of the law and should have been
submitted t o the jury. However, t h i s i s n o t t h e o n l y f a c t o r

upon which a trial court bases its decisions on jury
instructions. "Ordinarily a party has the right to

i n s t r u c t i o n s a d a p t a b l e t o h i s t h e o r y of the case." Cremer
v. Cremer Rodeo Land and L i v e s t o c k (Mont. 1 9 8 1 ) , 627 P.2d
1199 a t 1200, 38 S t . R e p . 574 at 576, citing Meinecke v.
S k a g g s ( 1 9 4 9 ) , 1 2 3 Mont. 308 a t 313, 213 P.2d 237 a t 240.
However as pointed out in Cremer, this rule is not
absolute. An i n s t r u c t i o n w h i c h comments on t h e e v i d e n c e i s

properly refused. S u h r v. S e a r s Roebuck a n d Company ( 1 9 6 9 ) ,
1 5 2 Mont. 3 4 4 , 450 P.2d 8 7 . "Any i n s t r u c t i o n w h i c h a s s u m e s

a s f a c t a matter legitimately i n c o n t r o v e r s y , a s shown b y
the evidence, is erroneous." Demaree v. Safeway S t o r e s ,
Inc. ( 1 9 7 3 ) , 1 6 2 Mont. 47 a t 5 4 , 5 0 8 P.2d 570 a t 575.

The District Court ruled that appellant's proposed

i n s t r u c t i o n no. 11 commented o n t h e e v i d e n c e a s i t i m p l i e d

t h a t L a F e v e r was n o t n e g l i g e n t e v e n t h o u g h h i s n e g l i g e n c e
was legitimately in doubt. The theory upon which this
i n s t r u c t i o n was s u b m i t t e d was that Esterholt was 100%
n e g l i g e n t and a n y n e g l i g e n c e on L a F e v e r ' s p a r t was c a u s e d b y

Esterholt. T h i s t h e o r y was a d e q u a t e l y c o v e r e d by s e v e r a l

instructions given by the District Court. The court's
i n s t r u c t i o n no. 7 was identical t o the f i r s t s e n t e n c e of

a p p e l l a n t ' s p r o p o s e d n o . 11. The c o u r t ' s i n s t r u c t i o n n o . 11
s t a t e d t h a t i t is n e g l i g e n t a s a m a t t e r o f l a w f o r a d r i v e r
of a v e h i c l e being passed t o i n c r e a s e its speed b e f o r e it is
completely passed. The c o u r t ' s i n s t r u c t i o n no. 12 s t a t e d
that involuntary violation of a statute in an emergency due
to circumstances beyond the driver's control does not
constitute negligence. From these instructions the jury
could have found and in fact did find Esterholt 100%
negligent. We therefore conclude instruction 11 was
properly denied.
Appellant next contends the District Court erred by
not giving its proposed instruction no. 13, on sudden
emergency, which read:
"A sudden emergency exists when the
driver of a motor vehicle is suddenly
placed in a position of imminent peril,
great mental stress, or danger, which
situtation has not been brought about by
his own negligence, but in which instant
action is necessary to avoid a threatened
danger. But the driver must use that
care which the ordinary prudent person
would exercise under like or similar
circumstances. One suddenly confronted
with a peril through no fault of his own,
who in attempting to escape does not
choose the best or safest way should not
be held negligent because of such choice,
unless it was so hazardous that an
ordinary prudent person would not have
made it under similar circumstances."
This Court adheres to the rule that a jury instruction
on the doctrine of sudden emergency has no place in an
ordinary automobile accident case. An extensive discussion
of the rationale behind this rule is found in our opinion in
Eslinger v. Ringsby Truck Line, Inc. (1981), 195 Mont. 292,
636 P.2d 254, and that rationale applies equally well to the
case at bar. In Eslinger, supra, we concluded:
"The sudden emergency doctrine admonition
contained in Kudrna [v. Comet Corporation
(1977), 175 Mont. 29, 572 P.2d 1831 ...
is well taken and now, in view of this
jurisdiction's adoption of the doctrine
of comparative negligence, we would at
this time admonish the trial courts that
the instruction not be given in an
ordinary automobile accident case. It is
 unnecessary and confusing. The ordinary
rules of negligence are applicable and
afford a sufficient gauge by which to
appraise conduct. 195 Mont. at 302, 636
P.2d at 260.

"Before an instruction on the doctrine of
sudden emergency is given, the evidence
should be sufficient to support a finding
that: (1) the claimed emergency actually
or apparently existed; (2) the perilous
situation was not created or contributed
to by the person confronted; (3)
alternative courses of action in meeting
the emergency were open to such person or
there was an opportunity to take some
action to avert the threatened casualty;
and (4) the action or course taken was
such as would or might have been taken by
a person of reasonable prudence in the
same or similar situation." 195 Mont. at
300-301, 636 P.2d at 259.
The trial judge here did not feel the second element
above was present. In fact, as we noted before, LaFever's
negligence or lack thereof was still very much in dispute.
In this situation the sudden emergency instruction would
have amounted to a comment on the evidence as it implied no
negligece on LaFever's part. Giving the proposed
instruction would have been error, and it was properly
refused.
The remaining issues concern the testimony of Dennis
OIDonnell, an economist who testified to present and future
economic damages on behalf of respondent. Appellant first
contends that Mr. O'Donnell should not have been permitted
to testify because his name was not disclosed until
immediately before trial. We find it unnecessary to discuss
this issue in view of the fact we are upholding the trial

court's granting of a new trial. Appellant will have time
to prepare for the testimony of O'Donnell before the new
trial.
 Appellant next objects to the content of Mr.
O'Donnell's testimony. First he contends it was error for
Mr. O'Donnell to measure respondent's work life expectancy
from the date of trial instead of the date of the accident.
Second he contends it was error for Mr. O'Donnell to base
his estimate of respondent's lost earnings on profits of the
corporation in which respondent was the majority
shareholder.
In Montana, damages may be awarded for detriment which
has accrued up to the time of trial and detriment which is
"certain to result in the future." Section 27-1-203, MCA.
This Court has long held that the loss of future earning
capacity is such a future detriment which may be compensated
for by money damages. Salvail v. Great Northern Railway
(1970), 156 Mont. 12, 473 P.2d 549. However, the nature of
such damages makes their amount difficult to ascertain, as
they are designed to compensate for what would have probably
occurred in the future. Absent a crystal ball, the course
of future events remains a mystery.
To reduce the inherent uncertainty of future damages,
this Court has allowed testimony from various economic
experts and the use of mortality and actuarial tables to aid
jury determinations. See, Krohmer v. Dahl (1965), 145 Mont.
491, 402 P.2d 979; and Cornel.1 v. Great Northern Railway
(1920), 57 Mont. 177, 187 P. 902. This is consistent with
the rule that competent evidence must be introduced to prove
damages, the award must not be based on mere conjecture and
2%
speculation. Bush v. Chilcott (1922), 64 Mont. 3 4 6 , a P.
@sf
w. However, there is nothing magical about this type of
evidence, and it does not preclude the elicitation of other
relevant evidence which may show the scientific opinion
e i t h e r l i b e r a l or conservative.
The u n d e r l y i n g damage q u e s t i o n p o s e d t o t h e j u r y h e r e
was b a s i c a l l y , "How l o n g would r e s p o n d e n t h a v e worked i f h e
had not been injured?" Respondent presented scientific

e v i d e n c e of h i s work l i f e e x p e c t a n c y computed p r o s p e c t i v e l y
f r o m t h e d a t e of the accident. In addition, he presented

t e s t i m o n y t h a t g i v e n t h e n a t u r e o f h i s j o b and p e r s o n a l i t y ,
h e would h a v e o u t d i s t a n c e d t h i s m e a s u r e m e n t . T e s t i m o n y was

also presented showing his work life expectancy computed
p r o s p e c t i v e l y f r o m t h e d a t e of the trial, which a d d e d o v e r

two years to the estimate of his work life expectancy
computed f r o m t h e d a t e o f t h e a c c i d e n t . Appellant objected

t o t h i s t e s t i m o n y c o n t e n d i n g t h a t t h e work l i f e e x p e c t a n c y
m u s t be m e a s u r e d from t h e d a t e o f t h e a c c i d e n t . We agree

w i t h t h i s c o n t e n t i o n i n t h a t i t i s t r u e r e s p o n d e n t ' s damages
f o r l o s s o f e a r n i n g c a p a c i t y began a c c r u i n g on t h e d a t e o f
the accident. The q u e s t i o n , however, is how l o n g from t h a t

point in time would he have continued working. We must
point out that under the facts of this case appellant
m i s t a k e n l y r e l i e s on t h e u n f a i l i n g a c c u r a c y o f t h e work l i f e

charts. T h i s t e s t i m o n y m u s t be weighed a g a i n s t a l l o t h e r
e v i d e n c e b e a r i n g on how l o n g r e s p o n d e n t would h a v e worked.
It must be remembered t h a t damages are allowed n o t
o n l y up t o t h e time o f trial, but also into the future.

S e c t i o n 27-1-203, MCA. H e r e t h e r e was c o m p e t e n t t e s t i m o n y
that, b e c a u s e of respondent's particular circumstances, he

would h a v e c o n t i n u e d w o r k i n g n o t o n l y up t o b u t p a s t t h e
d a t e o f t r i a l had h e n o t b e e n i n j u r e d . Therefore h i s a c t u a l
work l i f e e x p e c t a n c y c o u l d more a c c u r a t e l y b e m e a s u r e d f r o m
the trial date. The weight to be accorded this estimate is
left to the discretion of the jury. The judge properly
allowed the testimony.
Lastly we come to Mr. O'Donnell's testimony on the
amount of lost earnings. Again we note that this evidence
on damages is open to attack on cross examination. Its
accuracy is up to the jury to decide. Given the nature of
respondent's business and the fact that it was a Subchapter
S corporation, the trial judge felt the testimony on
corporate profits would aid the jury in determining
respondent's lost earnings. The trial judge is vested with
a large amount of discretion in determining what testimony
is to be allowed by expert witnesses. Krohmer, supra. We
find no abuse of discretion here.
The judgment of the District Court granting
respondent's motion for a new trial is affirmed.

We concur:

1
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