NO. 85-149
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
WILLIAM A. KUKUCHKA,
Plaintiff and Appellant,
MICHAEL W. ZIEMET, and DOES I
through V., inclusive,
Defendant and Respondent.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Alfred B. Coate, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kelly & Halverson, P.C.; Sheehy, Prindle & Finn,
Patrick L. Prindle, Billings, Montana
For Respondent:
Crowley Law Firm; Steven Lehman, Billings, Montana
Submitted on Briefs: Oct. 10, 1985
Decided: December 20, 1985
Filed:
Clerk
Kr. Justice William E . Hunt, Sr., delivered the Opinion of
the Court.
The appellant, William Kukuchka, brought an action in
the District Court of the Sixteenth Judicial District of the
State of Montana against the respondent, Michael Ziemet, for
negligence in the operation of a motor vehicle. Trial by
jury resulted in a finding of no negligence. A motion for a
new trial was denied. This appeal followed.
We affirm.
The issue presented for review is whether the jury
verdict is supported by substantial credible evidence.
At between 12:00 midnight and 12:30 a.m. on May 10,
1981, the appellant and a companion were walking in a
westerly direction along First Avenue in Ingomar, Montana.
They were in the right lane on the side of the road and not
facing the traffic in that lane. The appellant was on the
right, the companion was to his left. The respondent was
driving a vehicle in the same westerly direction. The
vehicle struck the appellant from behind.
First Avenue, at the point where the accident occurred,
was unpaved and was without sidewalks or streetlamps. At the
time of the accident, it was dark, cloudy, and damp in
Ingomar.
The respondent was driving at between 5 and 15 miles per
hour. Although the respondent's headlamps were on and aimed
properly, he did not see the appellant or the appellant's
companion until he was 5 to 10 feet from them. He then saw
only " s h a d o w s . ' V h e companion jumped to the left and the
appellant was struck by the center of the vehicle, fell on
the hood, and rolled off. The appellant did not recall the
clothes worn but the respondent testified that the
pedestrians were wearing dark clothes and his headlamps did
not "illuminate" them.
The appellant's testimony placed him at the far right
edge of the road. The appellant argues that in order for him
to have been struck hy the center of the vehicle the
respondent would have to have been driving off of the road.
The first issue is whether the jury verdict is supported
by substantial credible evidence. This Court will not
disturb a judgment on appeal where substantial evidence to
support the judgment appears on the record and this is
especially true when the District Court has upheld the
sufficiency of the evidence on a motion for a new trial.
Keil v. Glacier Park Inc. (1980), 188 Mont. 455, 461, 614
P.2d 502, 505. The evidence wil-1-be viewed in a light most
favorable to the prevailing party and, if the evidence
conflicts, the credibility and weight given to the evidence
is the province of the jury and not this Court. Mountain
West Farm Bureau Mutual Insurance Company v. Girton (Mont.
1985), 697 P.2d 1362, 1363, 42 St.Rep. 500, 501. A verdict
will be changed only when it can be shown with reasonable
conviction that the jury violated the law, gave way to
passion, prejudice, or partiality, made a mistake of law or
fact, or acted carelessly or perversely. Dieruf v. Gollaher
(1971), 156 Mont. 440, 446, 481 P.2d 322, 325. Only when
there is a complete absence of probative facts does error
occur. Griffel v. Faust (Mont. 1983), 668 P.2d 247, 249, 40
St.Rep. 1370, 1373. Substantial evidence is evidence such as
will convince reasonable persons and on which such persons
may not reasonably differ as to whether it establishes the
prevailing party's case, and, if all reasonable persons must
conclude that the evidence does not establish such case, then
there is not substantial evidence. Cameron v. Cameron
(1978), 179 Mont. 219, 228, 587 P.2d 939, 944-945.
In viewing the record in a light most favorable to the
prevailing party and in leaving the credibility and weight of
the evidence to the jury, the record discloses probative
facts that could convince reasonable persons that the
respondent was not negligent. The respondent was traveling
at a reasonable rate of speed. His headlamps were on and
aimed properly. The appellant and his companion were walking
on the road, facing away from traffic, and wearing dark
clothes on a dark night. We hold that the substantial
evidence test is met.
Relevant to this issue is whether there is negligence as
a matter of law in this case. The appellant refers to the
case Aemisegger v. Herman (Mont. 1985), 697 P.2d 925, 42
St.Rep. 420 as being comparable here and as support for
negligence was a matter of law. This argument is without
merit as applied. to the facts in this case. In Aemlsegger
there was negligence as a matter of law because the person
driving the vehicle struck from behind by the other vehicle
was lawfully on the road, properly stopped, did nothing to
cause, and could do nothing that would have avoided the
accident. There was no question of comparative negligence in
Aemisegger. Here, however, the appellant was walking in the
road, facing away from traffic, and wearing dark clothes on a
dark night. A question of comparative negligence exists. It
would be error to find negligence as a matter of law in this
case as the degree of negligence is a question of fact for
the jury. See, Reid v. Little (Mont. 1984), 680 P.2d 937,
940, 41 St.Rep. 644, 648.
Affirmed.
F e Concur:
l
Mr. J u s t i c e Frank B. Morrison, Jr. c o n c u r s a s f o l l o w s :
I concur i n t h e r e s u l t f o r t h e r e a s o n t h a t t h e p l a i n t i f f
d i d n o t move f o r a d i r e c t e d v e r d i c t on l i a b i l i t y n o r d i d t h e
plaintiff request the court t o i n s t r u c t t h e jury that the
d e f e n d a n t was n e g l i g e n t a s a m a t t e r o f law. I feel that
under t h e evidence i n t h i s case, and under t h e a p p l i c a b l e
law, t h e d e f e n d a n t was n e g l i g e n t a s a m a t t e r o f law b u t I
f e e l t h a t I have no c h o i c e , g i v e n t h e s t a t e o f t h i s r e c o r d ,
b u t t o vote f o r an affirmance.
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