Plourd v. Southern Pacific Transportation Co.

534 P.2d 965, 272 Or. 35, 1975 Ore. LEXIS 402
CourtOregon Supreme Court
DecidedMay 1, 1975
StatusPublished
Cited by17 cases

This text of 534 P.2d 965 (Plourd v. Southern Pacific Transportation Co.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Plourd v. Southern Pacific Transportation Co., 534 P.2d 965, 272 Or. 35, 1975 Ore. LEXIS 402 (Or. 1975).

Opinions

TONGUE, J.

This is an action for damages for personal injuries sustained by a brakeman on a freight train. It is the second time that this case has come before this court. In a previous decision we set aside a jury verdict in favor of the plaintiff because of errors in the trial of the case and remanded it for a new trial. 266 Or 666, 513 P2d 1140 (1973). The case was then retried before a jury, which again returned a verdict in favor of the plaintiff. Defendant again appeals, charging further errors in the retrial of the case. We affirm.

With the exception of some new evidence, as dis[37]*37cussed below, the facts of the case are set forth in our previous decision and need not be repeated.

1. The trial court did not err in admitting evidence of earnings of other employees and computations based upon such evidence.

Defendant’s first contentions are that the trial court erred “in receiving computations of the present value of the 1973 earnings of other railroad employees projected over plaintiff’s working life expectancy” and “in receiving testimony that the earnings of other employees in 1972 and 1973 were evidence of income which would have been available to plaintiff.”

In the appeal to this court following the first trial of this case the defendant did not assign as error the admission of evidence of the earnings of other employees, but complained of the admission of a computation by plaintiff’s expert witness showing the present value of the future wages of another brakeman on the same division of the railroad with six months less seniority. In considering the admissibility of that evidence in our first decision in this case we pointed out (at 681-82) that in our previous decision in Conachan v. Williams, 266 Or 45, 511 P2d 392 (1973), we had held (at 59) that any evidence which would “indicate fairly the capacity of the plaintiff to earn money in his usual vocation” should be admitted. In Conachan we also recognized (at 61) that most courts now apparently hold that on the question of earning capacity it is proper to consider, under some circumstances, employment for which plaintiff was qualified at the time of his injury and the usual compensation paid for such employment. We also held in that case, however (at 65), that although a trial judge has considerable latitude in the admission or rejection of such evidence, there should be a showing as a foundation for the admission of such evidence that circumstances are sufficiently similar so as to [38]*38provide a proper basis for an informed decision by the trial judge whether such evidence has sufficient probative value so as to be properly admissible.

On the application of these rules to the testimony as offered by the plaintiff on the first trial of this case, the majority of this court held that the trial court erred in admitting that computation. The reason stated by the majority (266 Or at 687) for that holding was that the admissibility into evidence of that computation must be based upon the following assumption:

“* * * [TJhat because there is similar seniority, there is sufficient similarity between earning capacities to make what the other workman earned relevant. The error in that assumption is that plaintiff’s demonstrated earning capacity is at variance with such an assumption. Without any showing why plaintiff earned less (i.e., temporary illness, injury, etc.), the jury is allowed to assume that in the future plaintiff will earn as much as the other workman. This is not a valid assumption in the face of proof of what they actually earned and in the absence of proof why plaintiff in the past has been earning less.”

Thus, the primary question to be decided in determining whether it was error to receive similar computations and testimony on the retrial of this case is whether evidence was offered by plaintiff to show why he earned less than the employees whose earnings were used as the basis for such computations and why it was reasonable for the jury to assume that had he not been injured his earnings in the future would have been comparable to their earnings. In other words, was sufficient evidence offered by the plaintiff on the retrial of this case to satisfy the requirement of similarity in circumstances as a matter of a foundation for the admissibility of such evidence?

Upon examination of the record on the retrial of [39]*39this case we find that the evidence offered by plaintiff of the earnings of other employees, upon which the computations of plaintiff’s expert were based, consisted of the earnings of eight other brakemen, or brakemen-condnctors, who were employed on the same division of defendant’s railroad and whose seniority dates were closest to that of the plaintiff. Three employees with the next greater seniority were included, as well as five with the next lesser seniority.

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Plourd v. Southern Pacific Transportation Co.
534 P.2d 965 (Oregon Supreme Court, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
534 P.2d 965, 272 Or. 35, 1975 Ore. LEXIS 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plourd-v-southern-pacific-transportation-co-or-1975.