                                       No. 81-106
                IN TEE SUPREME COURT OF THE STATE OF MONTANA

                                           1982

VIOLETTE MOEN, Individually and as
Personal Representative,

                               Plaintiff and Appellant,


PETER KIEWIT    &    SONS' CO., a Corp.,

                               Defendant and Respondent.


                                      No. 82-29
VIOLETTE MOEN,
                    Claimant and Ap2ellant,


DECKER COAL COMPANY, Employer,
    and
ELQLOYERS MUTUAL LIABILITY INSURANCE COMPANY
OF WISCONSIN,
                    Defendant and Respondent.


Ai~pealsfrom:       District Court of the Thirteenth Judicial District,
                    In and for the County of Yellowstone, The Honorable
                    William J. Speare, Judge presiding. Also, Workers'
                    Compensation Court, Hon. Timothy Reardon, presiding.

Counsel of Record:
          For Appellant:
                    Hoyt   &   Trieweiler, Great Falls, Montana
          For Respondent :

                    Crowley, Haughey, Hanson, Toole & Dietrich;
                    L. Randall Bishop, Billings, Montana


                                      Submitted:    July 9, 1982
                                        Decided:    December 13, 1982

Filed:   4EC13 1982
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

     These cases have been consolidated for consideration,
as both cases involve claims for an employee's death by
heart attack.   We affirm the lower courts in both cases.
     In Case I, Supreme Court No. 82-29, claimant Moen appeals
from the order of the Workers' Compensation Court, granting
defendant's motion to quash her petition for a hearing.     Claimant

Moen presents two issues to this Court:
     (1) Whether defendant's motion to quash was procedurally

acceptable.
     (2) Whether newly discovered evidence supports Violette

Moen's request for a new hearing.
     The defendant argues that this case is res judicata.
     In Case 11, Supreme Court No. 81-106, plaintiff Moen
appeals from an adverse jury verdict in the Thirteenth
Judicial District Court, Yellowstone County, in her negligence

action for the wrongful death of her husband.   Moen raises
the following issues for review:
     (1) Did the District Court err by not allowing Mike

Moen's widow to testify regarding her telephone conversation
with Mike Moen the night before his death?
     (2) Did the District Court err by allowing James

McCarthy to testify regarding what Mike Moen did not say
before Moen left for the hospital?
     (3) Was the jury properly instructed?
     Defendant cross-appeals, contending that the ~istrict
Court erred in not granting its motion for directed verdict.
     Virgil (Mike) Moen was 53 years old and had worked as
an oiler for Decker Coal Company for three years, when, on
Saturday, November 1, 1975, an overtime day, he suffered a
heart attack which led to his death in the Sheridan, Wyoming,

hospital, early the next morning.
     Moen had stayed in Decker Friday night instead of
returning to Great Falls, as he usually did, to spend the
weekend with his family.   On Saturday morning, shortly after
8:00 a.m. at the request of his supervisor, Delmar Rradway,

Moen returned to the Decker mine to work overtime steam
cleaning the engines and transmissions of a number of large
Terex scrapers.   There were nine scrapers, but two were
being repaired, and the testimony conflicts as to whether

Moen cleaned seven or nine.    Because the morning was frosty,
Moen was not able to start steaming until about 10:00 a.m.

Co-workers testified that a conscientious worker, such as
Moen was admitted to be, ordinarily would take 30 to 45 minutes
to clean each scraper, yet Moen was finished by noon.

According to Bradway, who was the only employee working
with Moen in the afternoon, the two men worked from about
1:00 to 3:30 p.m. steam cleaning the batteries and radiators
of the same scrapers, with Moen driving the pickup upon
which the steamer rode, and Bradway, the supervisor, doing

the steaming itself.   Other workers declared they had never
seen Bradway do dirty work while a worker sat in the truck
and that it was contrary to union policy and rules.
     About 3:30 p.m., as Bradway was leaving, he noticed
Noen standing beside the raised hood of his pickup; Bradway
asked if anything was wrong.   He noticed that Moen was

changing oil, and when Moen answered no, he was all right,
Bradway departed.   Bradway also testified that Moen never
complained of pain or exhibited any signs of illness.
Moen's time card for November 1, 1975, is signed; the space
wherein an employee must indicate an on-shift accident is
marked "no" and initialed with Moen's initials.
     James McCarthy, a close friend and co-worker of Moen's
at Decker Coal, also runs the Decker store and post office,
some five miles below the mine.    He testified that about
3:50 or 4:50 p.m., Moen appeared at his store and the two
men talked about going into town (Sheridan, Wyoming, about
30 miles away).   McCarthy stated that he excused himself to
continue working on a pump in the cellar, but Moen sought
him out:
           "There was a knock on the door, and I came
           up from the cellar. And he asked me if I
           would drive him to town; never again stating
           there was anything the matter with him but
           he just didn't feel that--you know he wanted
           to go to town. I says, 'I'll be with you in
           about ten minutes, as soon as I put the web
           back into the pump.' So it must have been
           about 20 minutes later that I came up. Never
           even checked on him, went into the bathroom
           and cleaned up and came out to go with him,
           and he was gone.
           "9. The last time that you saw him did he
           appear to you to be seriously ill?
           "A. No. I will say this, he was pale. In
           other words, he didn't look like the regular
           Mike full of vim and vigor."
     Moen drove himself to Memorial Hospital in Sheridan,
arriving about 5:30 p.m.     He told the attending physician
that at about 2:00 p.m. that day he had begun to feel severe
pain in the left side of his chest, with pain radiating down
his left arm.   The pain increased in intensity for about 15
minutes, then continued at about the same intensity.    Moen's
condition was diagnosed as acute interior myocardial infarction.
Treatment failed to relieve Moen's pain, which continued
severe until, after administration of morphine, he fell
asleep at about 10:OO p.m.    At about 2:30 a.m., nurses noted
a "dusky" coloring often associated with "pump failureN--
inability of the heart to perform due to the extent of
muscle tissue impairment--and, following a breakdowr, of the
normal sinus pattern, Moen died at 3:35 a.m.
     Mike Moen's widow, Violette Moen, filed a claim for

workers' compensation on September 27, 1976.          Decker Coal
Company denied the claim on the grounds that there was no

causal relationship between Mike Moen's employment and his
fatal heart attack.         Following hearing and briefing, on
January 29, 1979, the Workers' Compensation Court found
Decker Coal Company liable to Mike Moen's widow for benefits.
During that trial in the Workers' Compensation Court, Delmar
Bradway was asked whether or not the work involved in steam
cleaning equipment was more or less taxing than an oiler's
ordinary work.      Bradway replied:

            "A. It is easier than the regular ordinary
            duties in this case because he didn't have
            to climb around or do anything like that.        . ."
Somewhat later in that trial, the following dialogue occurred:
            "Q. During that day [November 1, 19751 did
            you see Mike do any running?
             "A.   No, I never noticed any.

             "Q. Any climbing?
            "A. NO, he was dcing the steaming because
            the transmissions are low and their engines
            are fairly low because he was doing the steam-
            ing from the ground, and to cover that many
            engines in this time, why you just can't do
            too good a job on anything else.
            "Q. Was there any occasion for him to climb
            stairs?
             '*A. None. "

     This Court reversed on appeal, holding that claimant
had not met her burden of proving Mike Moen's death had been
the result of "a tangible happening of a traumatic nature
from an unexpected cause or unusual strain."          Moen v. Decker
Coal Co. (1979),            F o t.
                             4n        ,   604 P.2d 765, 36 St.Rep.

2220.

        On January 23, 1978, Violette Moen brought a negligence

action against Peter Kiewit and Sons (Kiewit), seeking
compensatory and punitive damages for the death of her
husband.   Kiewit is a large, Wisconsin-based corporation,
which managed the Decker Coal Co. mine and provided certain
supervisory personnel at the time of Mike Moen's death.
Violette Moen charged that Kiewit, through its supervisor,

Bradway, deliberately refused to provide first aid and
medical care to Mike Moen when he was having a heart attack.

She charged that, instead, the Kiewit supervisor kept Mike
Moen working and compelled him to drive himself to the
hospital, and that such negligence had caused Mike Moen

suffering, and led to his death.   A jury trial resulted in a
verdict for Kiewit on January 29, 1981.   Plaintiff Moen
appeals.
     Certain testimony of Delmar Bradway in the negligence
trial differed from his testimony in the original trial in
the Workers' Compensation Court.    In the earlier trial, as
noted above, Bradway stated that Mike Jloen's regular work as

an oiler was more difficult than steam cleaning because
steam cleaning required no climbing around.    The second
action against Peter Kiewit (Bradway's employer) included
the following testimony by Bradway:
           "Q. Now, Mr. Bradway, you stated that Mike
           didn't have to do any climbing or anything
           except standing on the ground to steam clean.
           Then, I believe you said that he had to get
           up in order to clean the front engine by
           climbing up--
           "A.   Climbing in the operator's cab."
     When questioned about earlier statements that Moen's
job had been "strictly on the ground," Bradway answered:
           "A. I never thought about getting that side
           on the front, never gave one thought of it.
           Rut he was hired to do the job, and that was
           part of the job to do."
Bradway's testimony in the second action also established

that although Mike Moen did not start steam cleaning the
scraper engines and transmissions until 10:OO or 10:30 a.m.,
he had finished them by noon.

     On July 8, 1981, Violette Moen petitioned the Workers'
Compensation Court for a hearing.       She alleged that new
evidence brought out in the negligence action established
that Mike Moen had done "at least 8 hours of hard, dirty
work in less than 4 hours," and "had to exert and strain

himself in an unusual manner in order to accomplish the work
he did in the morning of November 1, 1975."      Mrs. Moen

maintained that this exertion was the "unusual strain" which
precipitated the "tangible happening of a traumatic nature,"
i.e., the heart attack which caused Mike Moen's death.
     Decker Coal Company moved to quash Violette Moen's
petition.     The Workers' Compensation Court granted the
motion on January 11, 1982, and dismissed the petition with
prejudice, finding "no purpose in granting another hearing

when it is likely that the result will remain the same."
Violette Moen appeals.
Case I   -   Supreme Court No. 82-29.
     Claimant Moen first argues that the Workers' Compensation
Court erred in considering defendant's motion to quash
because no procedural rule governing the Workers' compensation
Division permits a defendant to file such a motion.      Defendant's

argument is that this Court should take a broad view of
these uncharted administrative waters, and permit such a
motion unless it is specifically prohibited.
     Proceedings in the Workers' Compensation Court are
governed not by the Rules of Civil Procedure, but by the

Montana Administrative Procedure Act (MAPA).      Dumont v.
Wickens Bros. Const. Co. (1979),          Iont    .        , 598 P.2d
1099, 36 St.Rep. 1471; section 39-71-2903, FCA.             Sections 2-
4-201 and-202, MCA, provide for agencies to adopt rules of
practice and procedure.       Pursuant to those statutes, the
Department of Administration has set out procedural rules
for the Workers' Compensation Court.        S 2.52.201, et seq.,

Administrative Rules of Montana (A.R.M.).

     Claimant Violette Moen would have this Court view her
petition and defendant's motion to quash in the light of the
Workers' Compensation Court rule on answers,          §   2.52.202,
A.R.M.   (formerly Rule 2).    This rule does not provide for

any motions other than a motion for a more detailed petition.

We do not believe the Workers' Compensation Court was so
limited.   §   2.52.224, A.R.M., governing rules compliance

(formerly Rule 21) states:
           "If a party neglects or refuses to comply
           with the provisions of this sub-chapter, the
           Court may dismiss a matter with or without
           prejudice, grant an appropriate order for a
           party, or take other appropriate action. How-
           ever, the Court may, in its discretion and
           in the interests of justice, waive irregulari-
           ties and noncompliance with any of the provi-
           sions in the sub-chapter."
     Clearly, the Workers' Compensation Court is granted
broad discretion in determining whether to entertain faulty
motions and petitions.
     Here, claimant filed a petition for rehearing (nominally

a petition for hearing) well beyond the 20 days allowed in
5 2.52.222, A.R.M.    (formerly Rule 19).        Yet the court chose
to consider the merits of the petition, because claimant
alleged that new material evidence had been discovered.
Defendant moved to quash the petition.       Again the court
chose to exercise its discretion under       §   2.52.224, A.R.M.,
and consider the motion despite the fact that the rules do
not explicitly provide for such a motion.
        W f i n d no a b u s e o f d i s c r e t i o n i n t h e c o u r t ' s d e c i s i o n
         e

t o c o n s i d e r t h e motion t o quash.               The c o u r t concluded t h a t

i t would be u n j u s t t o f o r c e Decker Coal t o d e f e n d a g a i n

t h r o u g h a new t r i a l , and a motion t o q u a s h p r o v i d e d t h e most

e f f e c t i v e means o f d i s m i s s i n g t h e p e t i t i o n .     The Workers'

Compensation C o u r t , w h i l e n o t governed by t h e Rules of

C i v i l P r o c e d u r e , may be guided by them, and t o t h e e x t e n t

t h a t reference t o those r u l e s lies within t h e d i s c r e t i o n t h e

c o u r t may e x e r c i s e under       §   2.52.224,       A.R.M.,        such r e f e r e n c e

i s acceptable.

        V i o l e t t e Moen a l s o a r g u e s t h a t t h e Workers' Compensation

C o u r t e r r e d i n g r a n t i n g Decker C o a l ' s motion t o quash on t h e

merits.        She m a i n t a i n s t h a t t h e v a r i a t i o n s i n Bradway's

t e s t i m o n y a r e s u f f i c i e n t t o j u s t i f y a new t r i a l under K a r t e s

v. K a r t e s ( 1 9 7 7 ) , 175 Mont. 210, 573 P.2d 191; and S t a t e v .

Lewis      ( 1 9 7 8 ) , 177 Mont. 474, 582 P.2d 346.

        S e c t i o n 25-11-102,         MCA, p r o v i d e s t h a t a former v e r d i c t

o r d e c i s i o n may be v a c a t e d and a new t r i a l g r a n t e d upon

a p p l i c a t i o n i f t h e s u b s t a n t i a l r i g h t s o f t h e a p p l i c a n t were

m a t e r i a l l y a f f e c t e d by



                 " ( 4 ) newly d i s c o v e r e d e v i d e n c e m a t e r i a l f o r
                 t h e p a r t y making t h e a p p l i c a t i o n which h e
                 c o u l d n o t , w i t h r e a s o n a b l e d i l i g e n c e , have
                 d i s c o v e r e d and produced a t t r i a l ,          . . ."
See a l s o X a r t e s v. K a r t e s , s u p r a .       This decades-old standard

h a s been f l e s h e d o u t by c a s e law e s t a b l i s h i n g t h a t t h e

d e c i s i o n t o g r a n t o r deny a new t r i a l i s w i t h i n t h e sound

d i s c r e t i o n of t h e t r i a l c o u r t , F r e d e r i c k s e n v. F r e d e r i c k s e n

 (1980) ,             Mont.                605 P.2d 1135, 1137, 37 St.Rep.

1 9 1 , 193, and w i l l n o t be o v e r t u r n e d a b s e n t a showing o f a

m a n i f e s t abuse o f t h a t d i s c r e t i o n .        G i l e s v. F l i n t Val.
Forest Products (1979),      Mont.      , 588 P.2d 535, 538,
36 St.Rep. 23, 26.   To warrant the granting of a new trial
on the ground of newly disc~veredevidence, it must appear
to the court that there is a reasonable probability that,
upon a retrial, the evidence proposed will change the result.
Gould v. Lynn (1930), 88 Mont. 501, 505, 293 P. 968, 970.

     Here, the Workers' Compensation Court clearly indicated

its belief that there was no reasonable probability that the
new evidence would change the result upon retrial.   Its
rationale was set forth at length in the January 11, 1982,
order granting Decker Coal's motion to quash.   The court

recognized that some disparity existed between Delmar Bradway's
testimony at the Workers' Compensation Court trial and that
in District Court, but the "new evidence [was] really cumulative
and not so substantial as to overturn the decision" rendered
by this Court in Moen v. Decker Coal Company, supra.       The
order stated:

          "All of the facts concerning the events of
          that morning are in the workers' compensa-
          tion trial transcript with the exception
          of the fact that Mr. Moen had to climb up on
          the machines in order to steam parts of the
          engine. Any other facts relating to Mr.
          Moen's exertions on that morning could have
          been readily adduced under cross-examination,
          as they were in the district court proceeding.
          In addition, claimant would have to present
          medical testimony linking the exertions of
          Mr. Moen in the morning to his heart attack
          in the afternoon. Dr. Fletcher, claimant's
          medical expert, has already testified that
          arteriosclerosis was probably the cause of
          the myocardial infarction. In light of these
          facts, the Court sees no purpose in granting
          another hearing when it is likely that the
          result will remain the same."
We note that while a judge cannot as confidently predict the
probable result of a retrial by jury, the judge here would
be hearing the cause upon retrial, and is in a far better

position to assess claimant Moen's chances to prevail upon
retrial.

      We find that the Workers' Compensation Court did not
abuse its discretion in granting Decker Coal's motion to
quash.      There is ample evidence on the record to support the
court's conclusion that there was still not sufficient
evidence linking Mike Moen's exertion on the job to his

heart attack and death.
      Claimant would have this Court add the new information
to the facts presented at the initial trial, and conclude
that Moen v. Decker Coal Company, supra, would have been
decided differently by this Court.      But the test set forth
in Gould v. Lynn, supra, is not whether the original trial

would or might have been decided differently, but whether

- new evidence will probably change the result if a new
the -

--trial   - granted.
          is           The lower court concluded the result
would probably be the same.       Substantial evidence supports
that conclusion, and we will not set it aside.
      Decker Coal Company maintains that the matter should be

res judicata, as the Workers' Compensation Court concluded in
its order granting Decker Coal Company's motion to quash.
      This Court has recently emphasized that the Workers'

Compensation Court is entitled to finality as to its judgments
in the same manner as district courts.      McMahon v. Anaconda
Company (1981),          Mont .      - P.2d         , 38 St.Rep.
1233.      Under section 25-11-102, MCA, that finality does not
extend to motions for new trial on the grounds therein
enumerated, whether the motions are made in the district
courts or the Workers' Compensation Court.
          The Workers' Compensation Court'acted within its
statutory and administrative authority in deciding to
consider Decker Coal's motion to quash on its merits, and
did not abuse its discretion in granting the motion.
     Aff irmed.
Case I1   -   Supreme Court No, 81-106.
     Plaintiff Violette M0en argues that the District Court
committed reversible error when it excluded, as inadmissible
hearsay, her testimony that Mike Moen called her the night
before his heart attack, and told her he had to stay in
Decker Saturday to steam clean.     This evidence conflicts
with Bradway's testimony that he did not ask Mike Moen to

steam clean until Saturday morning, after he noticed Moen's
truck still parked by Moen's trailer.     Plaintiff's sole
purpose in introducing this evidence is to impeach the

credibility of Delmar Bradway as to other matters.     There
is no causal connection between the time Bradway asked Mike
Moen to work overtime and Mike Moen's heart attack and
death, nor does plaintiff allege that there is.
     We do not find the District Court erred in excluding
Violette Moen's testimony.     One cannot impeach a witness on
a collateral matter.     State v. Harvey (1979),     Mont.

-
-
    , 603 P.2d 661, 666, 36 St.Rep. 2035, 2040; Tigh v.
College Park Realty Co. (1967), 149 Mont. 358, 364, 427 P.2d
57, 61; McCormick, Handbook - - - -of Evidence, S 47 at
                            of the Law
98-99 (2d ed. 1972).      Here, the question of when Bradway
asked Mike Moen to work overtime is neither relevant nor

material to the issue in controversy, - whether Kiewit,
                                      viz.,
through Bradway, negligently failed to provide help to a
worker stricken by a heart attack.
     Furthermore, as Kiewit points out, the impeachment
value of Violette Noen's testimony depends upon the jury
believing the truth, not of Violette Moen's claim that her

husband had called and said he had to work Saturday, but of
Mike Moen's statement that he had been told on Friday that

he had to work Saturday.     The testimony clearly - hearsay
                                                   is
under Rule 801(c), M.R.Evid.      The testimony is not saved by
being a statement of Mike Moen's state of mind, his intent,
and hence an exception to the hearsay rule under Rule 803 (3),
M.R.Evid.     Mike Moen's state of mind was irrelevant to the
matter in controversy, the alleged negligence of Kiewit.
When intention or state of mind is nct at issue, the hearsay
exception does not apply.     See Ross v. Industrial Accident

Board (1938), 106 Mont. 486, 495-496, 80 P.2d 362, 364-365.
The District Court properly refused to allow plaintiff's
hearsay evidence in support of plaintiff's attempted impeach-
ment of Bradway on a collateral matter.
     Plaintiff Moen also charges that the District Court
erroneously permitted James McCarthy to testify as to what

Mike Moen did not do and did not say during the time he
later claimed to be suffering the heart attack.     Mike Moen
stopped at the Decker store after leaving work Saturday
afternoon at a b o ~ t4:00 P.M.   He spoke with his close friend,
James McCarthy, first suggesting he and McCarthy go to town
together, then, about an hour iater, asking McCarthy to
drive him to town.    McCarthy testified that Mike Moen had
never stated anything was the matter with him, although he
was pale and "didn't look like the regular Mike full of vir.

and vigor."
     Plaintiff Moen argues that McCarthy's testimony was
introduced "for the purpose of proving that if Moen made no
complaint to McCarthy, then there was nothing wrong with him
at the time."    She argues that Mike Moen's silence was
treated as an admission without certain foundational require-
ments having been met.     Plaintiff Moen relies upcn In Re
Neilson's Estate (1962), 57 Cal.2d 733, 371 P.2d 745, 22
Cal.Rptr. 1, in which the court held that, before a person's

failure to respond to a statement could be offered as an
implied admission, the offeror must establish that:     (a)

the statement must be one which would normally have elicited
a reply; (b) the person who would normally reply must be
shown to have understood the statements; (c) it must be
rational to infer that the person's silence indicated his
acceptance of the statement as an admission.

     We do not find that McCarthy's testimony implies an
admission by Mike Moen that he was not ill.    Nor do we find
the situation in the case at bar mandates the exclusi~nof
McCarthy's testimony.   There was no statement by McCarthy
for Mike Moen to admit or deny; nor was the evidence of

Noen's silence intended as proof that he was not ill.

Cardiac experts testified that a man suffering a heart
attack would not necessarily be incapable of moving about,
talking or driving a vehicle.   McCarthy's testimony was
significant only insofar as it tended to prove, not that Mike
Moen was - suffering a heart attack, but that he was
         not
keeping it to himself, and that, by implication, he may have

done so at the Decker mine as well.   This evidence is consistent

with Bradway's testimony that Moen neither complained of
pain nor appeared ill, and tends to absolve Kiewit of a duty
to render direct aid to Mike Moen.
     This Court has consistently held that the question of
admissibility of evidence in every case must be left largely
to the sound discretion of the trial court, subject to
review only in case of manifest abuse.   Cech v. State (1979),
     Mont.     , 604 P.2d 97, 102, 36 St.Rep. 2185, 2192;
Gunderson v. Brewster (1970), 154 Mont. 405, 466 P.2d 589.
We find that the trial court did not abuse its discretion in

allowing James McCarthy's testimony into evidence.
     Finally, plaintiff Moen maintains that the trial court
erred in refusing several of her offered instructions.
     The court rejected Moen's instruction that violation of
~ertainfederal laws regarding arrangements fcr medical

assistance constituted negligence per-
                                  - se, but that there was

no liability unless the violation was a legal cause of
plaintiff's injury.    A separate instruction stating the laws

was given.   The court also rejected plaintiff's instruction
that federal law requires that a worker not be left alone in
a hazardous area.     Plaintiff relies upon language in an old
case, Daniels v. Granite Bi-Metallic Consolidated Mining Co.
(1919), 56 Mont. 284, 184 P. 836, for the rule that violation
of mining rules and regulations renders defendant liable for
"damages proxinately caused by the unauthorized act    . . ."
     Daniels is not applicable here, where there is not

sufficient evidence to suggest any rational connection
between alleged violations of mining regulations by Kiewit
and Mike Moen's death.    Bradway's uncontradicted testimony
establishes that he was with Moen from 1:00 to 3:30 P.M.,
Saturday afternoon; Moen told the physicians in Sheridan his
chest pain began at 2:00 p.m.    The fact that Moen worked by
himself in an arguably hazardous area within a couple of

hundred yards of others during the morning hours may establish
a violation of a regulation.    It does not suggest any connection
with Moen's fatal heart attack later in the day.    Si~tilarly,
although Bradway may have contravened union rules by steam

cleaning the scraper batteries and radiators hinself in the
afternoon, while Moen drove the truck, there is nc automatic

causal relation between the viclation and Moen's heart
attack.   Plaintiff would have this Court find that the
evidence that Bradway steam cleaned while Ploen drove the
truck in the afternoon is sufficient to warrant the instruction.
The implication plaintiff seeks to pull from the testimony
is that Bradway knew Moen was ill, but refused to treat him

or let him seek treatment until the scrapers were finished,
and that such neglect contributed to Moen's death by delaying
his treatment.    We do not find that the evidence supports
the implication.
     In the first place, Bradway's co-workers testified

Bradway was, if anything, overcautious, a "sweater," not a

person to deal casually with an emergency.    Bradway himself
was trained in first aid and qualified to drive the ambulance.
Bradway's testimony established that weekly safety meetings
(sone of which Moen attended) stressed the need for employees
to report illness or injury to supervisors, and indicated
the constant availability of ambulance and driver, s h ~ u l d
they be needed.    It was obviously cormon knowledge at the
Decker mine that the ambulance could be rcanned at any time
for emergency transportation to the hospital and that
November 1, 1975, was no exception.    Yet, the record shows

that for over an hour from the time he himself claimed his
pain beqan, Moen continued to work with Bradway without

reporting his ccndition.   He signed himself out after work,
indicating no injury on shift, and drove to the Decker stcre
to seek McCarthyls company going to Sheridan, rather than
requesting an ambulance from Kiewit at the Decker mine.     The

only evidence that Moen may have believed aid was unavail-
able was plaintiff's testimony that Mike Moen told her over
the telephone from the Sheridan hospital that there had been
no one around to help him.
        W e f i n d t h a t t h e D i s t r i c t C o u r t committed no e r r o r i n

r e f u s i n g t h e above i n s t r u c t i o n s ; t h e r e was i n s u f f i c i e n t

evidence t o r e q u i r e t h e i r inclusion.                    Furthermore, t h e

d i f f e r e n c e between t h e " l e g a l c a u s e " r e f e r r e d t o i n t h e

o f f e r e d i n s t r u c t i o n , and t h e " p r o x i m a t e c a u s e " r e f e r r e d t o

i n D a n i e l s , s u p r a , c o u l d have c o n f u s e d and m i s l e d t h e j u r y .

        P l a i n t i f f Moen a l s o u r g e s t h i s C o u r t t o f i n d r e v e r s i b l e

e r r o r i n t h e D i s t r i c t Court's r e j e c t i o n of h e r i n s t r u c t i o n s

on "chance o f s u r v i v a l " and " l e g a l c a u s e . "

        I n b o t h c a s e s r e l i e d upon by p l a i n t i f f t o s u p p o r t h e r

"chance of s u r v i v a l " i n s t r u c t i o n argument, t h e r e w a s e v i d e n c e

t h a t t h e d e f e n d a n t had f a i l e d t o r e c o g n i z e o r t o t a l l y d i s -

r e g a r d e d a known d u t y and by h i s " n e g l i g e n t a c t i o n o r i n a c t i o n "

d e s t r o y e d whatever chance t h e d e c e d e n t might have had t o

survive.         See Hicks v. U n i t e d S t a t e s ( 4 t h C i r . 1 9 6 6 ) , 368

F.2d 626 ( s u r g e o n ' s n e g l i g e n t f a i l u r e t o i d e n k i f y and remove

a bowel o b s t r u c t i o n ) ; Gardner v. N a t i o n a l Bulk C a r r i e r s ,

Inc.     ( 4 t h C i r . 1 9 6 2 ) , 310 F.2d 284, c e r t . d e n .          372 U.S.        913,

83 S.Ct.       728, 9 L.Ed.2d            721 ( r e f u s a l o f s h i p ' s m a s t e r t o

a l t e r course t o search f o r missing seaman).

        The D i s t r i c t C o u r t a l s o r e j e c t e d p l a i n t i f f ' s o f f e r e d

i n s t r u c t i o n no. 19:

                 "A l e g a l c a u s e of an i n j u r y i s a c a u s e which i s
                 a s u b s t a n t i a l f a c t o r i n bringing about t h e in-
                 jury. "

T h i s i n s t r u c t i o n h a s been a d o p t e d i n C a l i f o r n i a .      See C a l i f o r n i a

J u r y I n s t r u c t i o n s C i v i l , B A J I No. 3.76        ( 6 t h ed. 1 3 7 7 ) ; W.

P r o s s e r , Sandbook - -e- -o f T o r t s
                         o f t h Law                           §    4 1 ( 4 t h ed.    1971).

P l a i n t i f f u r g e s i t s a d o p t i o n by t h i s C o u r t .

        W e do n o t f i n d t h a t e i t h e r "chance o f s u r v i v a l " i n s t r u c t i o n s

o r " l e g a l c a u s e " i n s t r u c t i o n s a r e improper i n Montana.                 But

we do f i n d t h a t n e i t h e r i n s t r u c t i o n was a p p r o p r i a t e under t h e
facts of this case, and the District Court did not err in
rejecting them.   Both instructions depend upon plaintiff's
allegation that Kiewit neglected a duty to Mike Moen, either
to recognize his condition and provide direct aid or to have
personnel available to render aid if Moen himself sought it.
There is simply not sufficient evidence, or, in fact, any
substantial evidence to support these allegations.     The
record strongly supports defendant's pssition that Moen was
not left alone in the afternoon, that he did not make his
condition known to and seek help from Bradway, who was
trained in first aid and would have helped him, or from
anyone else at the Decker mine.     Plaintiff's theory of the
case is not supported by evidence sufficient to give force
to her argument that the disputed instructions should have
been adopted.
     There was no error in the District Court's rejection of
the "chance of survival" instruction and the "legal cause"
instruction offered by plaintiff.
     Kiewit cross-appeals from the District Court's denial of
its motions for directed verdict.
    When a defendant moves for a directed verdict the trial
court must consider only the evidence introduced by the
plaintiff, in the light most favorable to plaintiff, and may
not withdraw the case from the jury unless a recovery cannot
be had upon any view that can be drawn reasonably from the
facts the evidence tends to establish.     Pickett v. Kyger
(1968), 151 Mont. 87, 99, 439 P.2d 57, 63.    Plaintiff's
case depedds primarily upon the evidence that Rradway, not
Moen, did the steam cleaning in the afternoon and that Moen
told his wife there was no one at work to help him when he
suffered his heart attack.   While that evidence is weak,
a jury could conceivably have fou~ldthe evidence established
K i e w i t ' s negligence.         Therefore, t h e D i s t r i c t Court properly

r e j e c t e d K i e w i t ' s motions f o r d i r e c t e d v e r d i c t .

        Affirmed.




W e Concur:




          Chief J u s t i c e
