No. 91-294
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
DOROTHY NELSON, as Guardian Ad Litem
for JILLENE NELSON, a handicapped person,
Plaintiff and Appellant,
-vs-
FLATHEAD VALLEY TRANSIT and SANDRA CANNON,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John H. Bothe and Laurie Wallace, Bothe &
Lauridsen, Columbia Falls, Montana.
For Respondents:
William G. Sternhagen, Keller, Reynolds,
Drake, Sternhagen & Johnson, Helena, Montana.
Submitted on briefs: October 24, 1991
Decided: January 16, 1992
Justice R. C. McDonough delivered the Opinion of the Court.
Jillene Nelson (Nelson) brought a negligence action, in the
Eleventh Judicial District, Flathead County, against Flathead
Valley Transit after she was injured in a collision between the van
in which she was a passenger and a snowplow. A jury verdict and
judgment were entered in favor of Flathead Valley Transit. Nelson
appeals the denial of her motion for judgment notwithstanding the
verdict or, in the alternative, a new trial. We affirm.
The following issues are presented for review:
1) Did the District Court err by denying Nelson's motion for
judgment notwithstanding the verdict?
2) Did the District Court abuse its discretion by denying Nelson's
motion for a new trial?
Flathead Valley Transit is in the business of transporting
passengers for hire. Sandra Cannon, was an employee of Flathead
Valley Transit and was driving a van in that capacity when she had
a collision with a snowplow. Jillene Nelson was a passenger in the
van and was injured in the collision.
There is a factual dispute regarding where the two vehicles
were, in relation to the center line, prior to the collision.
Cannon testified that the snowplow was in the middle of the road
when she first saw it approximately 90 feet away. Cannon, heading
southbound on the road, perceived that she would be unable to pass
between the northbound snowplow and the shoulder of her lane. In
response, it is her testimony that she applied the brakes, lost
control of the vehicle and struck the snowplow that had by now
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moved to the far right shoulder of the opposite lane.
The snowplow driver, James Hansen, testified that prior to the
collision he had been plowing the shoulder of the road and that he
was not in the middle of the road as Cannon claims. The
investigating officer on the scene offered testimony that it
appeared that the snowplow had been moving along the shoulder prior
to the collision. The officer cited Cannon for either over driving
existing road conditions or failure to keep to the right side of
the roadway. The record provides limited information regarding the
citations, though it appears through Cannon's testimony that she
contested the citations and lost.
At the close of the defendant's case, Nelson made a motion for
directed verdict which was denied and the case was sent to the
jury. The jury returned a verdict for the defendant. Nelson made
motions for judgment notwithstanding the verdict, or in the
alternative, a new trial. The court denied the motions and Nelson
appeals.
I.
Did the District Court err by denying Nelson's motion for
judgment notwithstan-ding the verdict?
In considering a motion for judgment notwithstanding the
verdict, the court must view all of the evidence in a light most
favorable to the non-moving party. Nicholson v. United Pacific
Insurance Company (1985), 219 Mont. 32, 710 P.2d 1342. The motion
may only be granted if it appears that the non-moving party cannot
recover upon any view of the evidence, including legitimate
inferences to be drawn from it, Larson v. K-Mart Corporation,
(1990), 241 Mont. 428, 787 P.2d 361.
Nelson contends that no evidence exists in any light that
would support the conclusion that Cannon did not breach an
obligation to Nelson. Section 69-11-107, MCA, is cited as the
standard of care owed Nelson by Cannon in their respective
capacities as common carrier and passenger. Specifically, Cannon is
held to a standard of utmost care and diligence in the safe
carriage of her passengers. Nelson argues that the issuance of
citations and Cannon's admission that she was found guilty of
driving charges relating to the collision, established a breach of
the above duty and negligence as a matter of law. We note that
despite Nelson's heavy reliance on this argument, the record
provides scarce information regarding the citations, the actual
charges and the legal proceedings following their issue. On the
basis of the scant record, we conclude the trial court did not err
in denying the motion for judgment on this point.
Nelson next contends that Cannon's breach of duty was the
proximate cause of the accident and her injuries. Proximate cause
was defined in the appellant's proposed instruction and submitted
to the jury as:
whenever it appears that the act or omission played a
substantial part in bringing about or actually causing
the injury or damage; and that the injury or damage was
either a direct result or a reasonably probable
consequence of the act or omission.
Question number 1 of the special verdict form asked:
Were the Defendants guilty of negligence which was a
legal cause of the Plaintiff's injuries and damages?
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While the instructions delineate between the issues of negligence
and proximate cause, the jury was not asked to provide separate
answers to the two issues. In the instant case, it is possible
that the jury found of negligence but no causation. Without
knowing which specific element(s) the jury found lacking,
negligence and/or proximate cause, the verdict must be affirmed if
there is any evidence to support the jury's findings on either one,
To grant judgment notwithstanding the verdict there must be a
lack of substantial evidence to support the judgment. Funk v,
Robbin (1984), 212 Mont. 437, 689 P.2d 1215. A colloquy between
appellant's attorney and the judge following the motion fox
directed verdict brings out clearly that there was supporting
evidence and after examining the record, we find that the jury
could determine that the snowplow may have been in the middle of
the road and precipitated the collision. The transcript provides:
The Court: You do admit, don't you, that there is a
factual dispute between the parties as to where the
Hanson vehicle was, when Miss Cannon first saw him in
relation to the center line?
Mr. (Attorney): Factual--Well, I suppose created by the
Defendant.
The Court: By her testimony?
Mr.(Attorney): That is correct.
The Court: Yes, and so, is it not conceivable that
panicking or otherwise, she hit the brakes to avoid a
collision with him, and then lost control as a result and
wham?
Mr. (Attorney) I suppose.
:
The Court: I mean, that is a plausible conclusion that
the jury could reach, in light of her testimony?
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Mr. (Attorney): I suppose.
Nelson now argues that the jury could not reach the conclusion
suggested by the court because it may not give any weight to
testimony that is contradicted by undisputed physical facts. In
Burns v. U & R Express (1981), 191 Mont. 343, 624 P.2d 487, we held
that "undisputed physical facts control over testimony when
physical facts admit of only one interpretation". The physical
facts Nelson refers to are the tracks of the snowplow that
allegedly follow the shoulder of the road.
The testimony of the investigating officer suggests that the
snowplow was on the shoulder prior to the collision. However, no
testimony was elicited from the officer regarding the basis of his
suggestion nor the distance or length of time the snowplow had been
traveling on the shoulder prior to the collision.
The snowplow driver, Hansen, testifies that he looked back and
saw his marks along the shoulder. However, Hansen called a sand
truck and the area was sanded before the investigating officer
arrived. No further evidence on the 'tracks' of the snowplow was
offered. A single photograph was admitted into evidence but
provides no further information in this regard. We are left with
Hansen's word against Cannons and an unclear picture of what the
physical facts are. Because the physical facts are unclear, we
decline to hold that they are controlling over the testimony of
Cannon.
The factual dispute regarding the cause of the accident was
properly before the jury. "The jury is the judge of the
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credibility of the witnesses and the weight to be given testimony."
See Burns at 346. The verdict is supported by evidence. The
ruling of the District Court denying the motion for judgment
notwithstanding the verdict is affirmed.
11.
Did the District Court abuse its discretion by denying
Nelson's motion for a new trial?
Nelson contends that the District Court abused its discretion
by failing to grant her motion for a new trial. Section 25-11-102,
MCA, provides the grounds for which a new trial may be ordered.
Nelson bases her motion on the following subsections:
(1) irregularit-yin the proceedings of the court.... or
any order of the court or abuse of discretion by which
either party was prevented from having a fair trial;
(6) insufficiency of the evidence to justify the
verdict ... ;
(7) error in law occurring at the trial and excepted to
by the party making the application.
The decision to grant a new trial is within the sound discretion of
the trial judge and will not be disturbed absent a showing of
manifest abuse. Zeke's Distributing Co. v . Brown-Forman Corp.
(1989), 239 Mont. 272, 779 P.2d 908.
Nelson argues that the trial court abused its discretion by
denying the motion for directed verdict and that a new trial should
be ordered. When reviewing the denial of a motion for a directed
verdict, only substantial evidence in the record supporting the
jury's finding is required. State v. Laverdure (1990), 241 Mont.
135, 785 P.2d 718. Essentially, the scope of our review and the
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province of the jury are the same as for a motion for judgment
notwithstanding the verdict. For reasons stated above regarding
the motion for judgment notwithstanding the verdict, the District
Court did not abuse its discretion in denying Nelson's motion for
a directed verdict.
Nelson's second ground for a new trial is that there is an
insufficiency of evidence to justify the verdict. Again, Nelson
relies on the physical facts and the alleged improbability of
Cannon's testimony. For reasons previously discussed, we disagree
and find that the verdict was supported by the evidence.
Finally, Nelson argues that there is clear error of law in
jury instruction No. 24 and the special verdict form questions
regarding the issue of joint and several liability. However, the
jury found no liability whatsoever, and the special verdict forms
instructions were such that the jury never dealt with the issue of
joint and several liability. Affirmed.
We Concur:
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Justice Terry N. Trieweiler dissenting.
I dissent from the opinion of the majority.
I believe that the plaintiff was entitled to a directed
verdict on the issue of negligence as a matter of law. I base that
conclusion on our prior decision in Aetna Life & Cas. hw. Co. v. Johnson
(1984), 207 Mont. 409, 673 P.2d 1277, where we held that collateral
estoppel bars litigation of an issue in a civil trial that has been
previously litigated in a criminal trial.
In this case, defendant Sandra Cannon stated in her own
testimony that she was charged with careless driving by the
investigating highway patrolman. She pled not guilty to that
offense. She testified that she and the investigating officer
appeared before a judge and that after testimony was heard she was
found guilty.
Careless driving is prohibited by 5 61-8-302, MCA, which
provides as follows:
A person operating or driving a vehicle of any character
on a public highway of this state shall drive it in a
careful and prudent manner so as not to unduly or
unreasonably endanger the life, limb, property, or other
rights of a person entitled to the use of the street or
highway.
Based on the rule of collateral estoppel, defendant Cannon was
prohibited from denying her violation of that statute in this
subsequent civil action. Her violation of that statute was
negligence as a matter of law. See Roberts v. Burlington Northem R.R.
(1976), 171 Mont. 143, 556 P.2d 1243. The jury should have been so
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instructed and the issue of proximate cause submitted separately to
the jury.
In our decision in Aetrta Life & Cas. Ins. Co. V. Johnson, we discussed
the following California authority with approval:
In Teitelbaum Furs, Iitc. v. Dominion Insurance Company (1962),
58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439, the
California Supreme Court found that I t . . .any issue
necessarily decided in a prior criminal proceeding is
conclusively determined as to the parties if it is
involved in a subsequent civil action." 25 Cal.Rptr. at
562, 375 P.2d at 442. Justice Traynor's comments explain
the basis for this rule:
..
# I 1 . To preclude a civil litigant from relitiga-
ting an issue previously found against him in a criminal
prosecution is less severe than to preclude him from
relitigating such an issue in successive civil trials,
for there are rigorous safeguards against unjust
conviction, including the requirements of proof beyond a
reasonable doubt (Code Civ.Proc. 5 2061) and of a
unanimous verdict (Pen. Code. 5 1164), the right to
counsel (InreJames, 38 Cal.2d 302, 240 P.2d 596), and a
record paid for by the state on appeal (Cal. Rules of
Court, rule 33). Stability of judgments and expeditious
trials are served and no injustice done, when criminal
defendants are estopped from relitigating issues
determined in conformity with these safeguards.
25 Cal.Rptr. at 561, 375 P.2d at 441.
The California Court held that three questions were
pertinent to determine the applicability of collateral
estoppel. They are:
I#. . . [l] Was the issue decided in the prior
adjudication identical with the one presented in the
action in question? [2] Was there a final judgment on
the merits? [3] Was the party against whom the plea is
asserted a party or in privity with a party to the prior
adjudication? . .
.I* 25 Cal.Rptr. at 560, 375 P.2d at
440.
AehzaLife&Cas., 207 Mont. at 412-13, 673 P.2d at 1279.
After discussing the California decision, we held that:
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[Clollateral estoppel will bar litigation of an issue in
a civil trial that has previously been litigated in a
criminal trial when the requirements of Teitelbaum Furs, Inc.,
have been met. The authority discussed above is
persuasive and represents a growing trend indicative of
our holding.
As discussed in Teiielbaum Furs, Inc., supra, the rigorous
safeguards against an unjust criminal conviction,
especially the requirement of proof beyond a reasonable
doubt as opposed to the preponderance of the evidence,
make collateral estoppel between criminal and civil
trials less severe than between successive civil trials.
Furthermore, application of collateral estoppel promotes
expeditious trials and stability of judgments. We will
not show such lack of faith in the criminal judicial
system to allow an issue fully and fairly litigated in a
criminal trial to be completely relitigated in a
subsequent civil trial.
AeinaLife&Cas., 207 Mont. at 414, 673 P.2d at 1280.
All of the requirements set forth in TeitelbaumFurs and adopted
in Aeina Life & Casualty are present in this case: (1) in the previous
adjudication it was determined that the defendant violated a motor
vehicle statute which established her negligence as a matter of
law; (2) there was a final judgment on the merits: and (3) the
party against whom collateral estoppel is being asserted was the
party in the prior adjudication.
The interest of our courts in expeditious trials and stability
of judgments is just as present in this case as it was in Aehia Life
& CKXUdty. Defendant Cannon had her day in court when she denied
being guilty of the motor vehicle violation with which she was
charged. A judge who listened to the evidence determined that she
was guilty, and she should not have been given a second opportunity
to relitigate the same issue in the subsequent civil proceeding
filed against her.
For these reasons, I conclude that defendant Cannon was
negligent as a matter of law and that a directed verdict should
have been entered against her on that issue at the conclusion of
the evidence. I would reverse the judgment in favor of the
defendants.
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