EWING v ESTERHOLT
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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 Kalispell, Montana & Bartlett; Kenneth E. O'Brien, For Respondent : Keller & German; Robert S. Keller, Kalispell, Montana Submitted on Briefs: Decided: Filed: ,,blu ( December 8, 1983 June 7, 1984 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 , After a jury verdict 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 was e n t e r e d , m o t i o n of Montana. r e s p o n d e n t Ewing. Parcel Service, D e f e n d a n t s L a F e v e r and U n i t e d ( 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 west c o m b i n a t i o n n o r t h on U.S. s h o r e of Flathead Lake. E s t e r h o l t d r i v i n g a UPS v a n . the two vehicles traveling until descended, no-passing Appellant proceeded reached both the LaFever followed J u s t s o u t h o f Somers, Montana, up a t approximately ten they Highway 9 3 a l o n g t h e hill of began in this order, f i f t e e n miles p e r to crest vehicles a to the hill. pick up As hour they speed. A 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 increase his no-passing speed, zone to the pass Esterholt continued t o causing overtake LaFever him. to This proceed was into a 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 . rear of Esterholt's cab, he When L a F e v e r r e a c h e d t h e 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 , 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 the Esterholt 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 to negotiate the curve, and the truck o u t s i d e of traveling began too fast to slide t o the 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 i n t o evidence a diagram of t h e a c c i d e n t scene. introduced 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 patrolmen. On obtained the diagram by the E s t e r h o l t ' s v e h i c l e w e r e shown. i n t h e e a r l y p a r t of the investigating tire s k i d marks highway made by The s k i d m a r k s were p l a c e d 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 , was based a s p a r t of h i s c a s e i n c h i e f . on the diagram, the figures His and testimony distances contained in the patrolmen's notes, investigation of the accident scene. and his own 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 placed. the point where the skid marks were 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. marks Since he had already concluded that the skid 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 placement on the diagram. the tire mark 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 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, mistrial. Af t e r 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 testified, appellant's accident reconstruction expert 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 n e g l i g e n c e on t h e p a r t o f negligent and assessed the trial, LaFever, damages the jury found no but did find Esterholt 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 surprise change which of he testimony could not amounted have to accident and 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 . guarded 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 granting abuse a of new will trial the 1 6 3 Mont. Respondent moved 270 for a trial be that discretion." of (1973), discretion a t new reversed amounted to and order manifest Haynes v . County of Missoula 278, P.2d a t trial 517 only its for enumerated i n S e c t i o n 25-11-102(3), testimony court based MCA, " [A] c c i d e n t 370 on the 375. grounds t h a t t h e change i n or surprise o r d i n a r y prudence could n o t have guarded a g a i n s t which ..." 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, 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 movantls own inattention or of 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 9 3 P. 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 are absent from this case. First t h e above c r i t e r i a 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 appellant's exercising ordinary a t t o r n e y found ordinary care. prudence, arguing that t h e m i s t a k e by e x e r c i s i n g such i t was n o t o r d i n a r y p r u d e n c e , However, 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 but 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 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 . issue of this combination to case was capsize. what The caused the testimony at change. The The u l t i m a t e truck-trailer 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. verdict is a Whether the mistake brought about the question that could not be answered with certainty, as many factors contribute to a jury verdict. pointed out by As 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. this However, it is not from the affidavit alone that 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 percentages of liability. the jury is dealing with As noted above, the impact of the surprise on the presentation of respondent's case was great, a fact which was acknowledged by during discussions held in chambers. counsel for appellant 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 a is proper statement submitted t o the jury. upon which a the law and court bases "Ordinarily a party Cremer Rodeo Land and L i v e s t o c k 1199 a t 1200, 38 S t . R e p . S k a g g s ( 1 9 4 9 ) , 1 2 3 Mont. However as absolute. pointed has Inc. 574 at 308 a t 313, out in to Cremer 1 9 8 1 ) , 627 P.2d citing Meinecke v. 213 P.2d Cremer, jury right the case." (Mont. 576, the on this 237 a t 240. is rule not S u h r v. S e a r s Roebuck a n d Company ( 1 9 6 9 ) , 3 4 4 , 450 P.2d 8 7 . a s f a c t a matter the been 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. 1 5 2 Mont. have decisions its 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 v. should However, t h i s i s n o t t h e o n l y f a c t o r trial instructions. of evidence, "Any i n s t r u c t i o n w h i c h a s s u m e s legitimately i n c o n t r o v e r s y , a s shown b y is erroneous." Demaree v. Safeway S t o r e s , ( 1 9 7 3 ) , 1 6 2 Mont. 47 a t 5 4 , 5 0 8 P.2d 570 a t 575. The District i n s t r u c t i o n no. Court ruled that appellant's proposed 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 i n s t r u c t i o n was doubt. The s u b m i t t e d was theory that upon which Esterholt was this 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. instructions 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 given i n s t r u c t i o n no. by 7 was the District identical a p p e l l a n t ' s p r o p o s e d n o . 11. Court. t o the The court's f i r s t s e n t e n c e of 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 constitute negligence. could have found negligent. We and the driver's control does not From these instructions the jury in fact did therefore conclude find Esterholt 100% 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 ordinary automobile accident case. in an 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 instruction would have part. been Giving error, and the proposed 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 immediately before trial. name was not disclosed until 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 O'Donnell's testimony. to the content of Mr. 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. 491, 402 P.2d See, Krohmer v. Dahl (1965), 145 Mont. 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 scientific the 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 injured?" not been 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 accident. the 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 . also presented showing his work years to the estimate expectancy the trial, 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 two life of his T e s t i m o n y was which a d d e d o v e r work 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 . computed life expectancy 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, point in would point out time that he under have the is how l o n g from t h a t continued working. facts of this case We must 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, 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, respondent's particular b e c a u s e of but also into the future. 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. accuracy is up to the jury to decide. Its Given the nature of respondent's business and the fact that it was a Subchapter S corporation, the corporate profits trial would judge felt the testimony on aid respondent's lost earnings. the jury in determining 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 respondent's motion for a new trial is affirmed. We concur: Chief us tick 1 granting
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