Giles v. Flint Valley Forest Products

No. 13732
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978

JEFFREY A. GILES,
Plaintiff and Appellant and
Cross-Respondent,
-
-vs-
FLINT VALLEY FOREST PRODUCTS,
MONTANA STATE HIGHWAY COMMISSION,
a Body Politic and Members thereof
and H. J. ANDERSON, Montana State
Director of Highways,
Defendants and Respondents and
Cross-Appellants.

Appeal from: District Court of the Third Judicial District,
Honorable Robert Boyd, Judge presiding.
Counsel of Record:
For Appellant:
Daniels and Mizner, Deer Lodge, Montana
Ted L. Mizner argued, Deer Lodge, Montana
For Respondents:
Poore, McKenzie, Roth, Robischon & Robinson,
Butte, Montana
Garlington, Lohn and Robinson, Missoula, Montana
Gary Graham argued, Missoula, Montana

Submitted: October 16, 1978
Decided: : ;379
-
- - ?

Filed: J&p
- I
Mr. J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of
t h e Court.

P l a i n t i f f b r o u g h t a n a c t i o n i n t h e D i s t r i c t C o u r t of

t h e T h i r d J u d i c i a l D i s t r i c t , Powell County, t o r e c o v e r

damages f o r i n j u r i e s h e s u f f e r e d i n a motor v e h i c l e a c c i d e n t

o n J u n e 11, 1974. The a c c i d e n t o c c u r r e d a p p r o x i m a t e l y one

m i l e w e s t of G a r r i s o n J u n c t i o n a t t h e W a r m S p r i n g s i n t e r -
s e c t i o n where I n t e r s t a t e 90, a d i v i d e d f o u r - l a n e highway,

m e e t s a n u n d i v i d e d two-lane r o a d . A t t h e t i m e of t h e c o l l i -

s i o n p l a i n t i f f was t u r n i n g l e f t o f f 1-90 i n t h e t r a n s i t i o n

a r e a o n t o t h e f r o n t a g e r o a d a t t h e Warm S p r i n g s i n t e r s e c -

tion. H i s a u t o m o b i l e was s t r u c k by a l o a d e d l o g g i n g t r u c k

d r i v e n by Walter G r e i g Godkin, a n employee of d e f e n d a n t

F l i n t Valley F o r e s t Products. Godkin i g n o r e d s i g n s i n t h e

a r e a d i r e c t i n g t r a f f i c t o keep r i g h t and n o t t o p a s s , and a s

a r e s u l t , while improperly i n t h e l e f t l a n e , h i s t r u c k

struck p l a i n t i f f ' s vehicle. Plaintiff suffered severe

i n j u r y t o h i s l e f t l e g , which w a s n e a r l y s e v e r e d a t t h e

ankle.

P l a i n t i f f sued F l i n t V a l l e y f o r t h e i r a g e n t ' s a l l e g e d l y

n e g l i g e n t o p e r a t i o n of t h e l o g g i n g t r u c k w h i l e i n t h e c o u r s e

of h i s employment, and sued t h e S t a t e of Montana f o r t h e

a l l e g e d l y n e g l i g e n t c o n s t r u c t i o n , d e s i g n and marking of t h e

Warm S p r i n g s i n t e r s e c t i o n and t h e t r a n s i t i o n a r e a . On

motion t h e a l l e g a t i o n s r e g a r d i n g n e g l i g e n t d e s i g n and con-

s t r u c t i o n were dropped. Negligence as t o marking a l o n e was

contended a t t r i a l . The j u r y r e t u r n e d a v e r d i c t a g a i n s t

b o t h d e f e n d a n t s and awarded p l a i n t i f f $100,000. Both d e f e n -

d a n t s moved f o r judgment n o t w i t h s t a n d i n g t h e v e r d i c t and

d i r e c t e d v e r d i c t s a n d , i n t h e a l t e r n a t i v e , f o r new t r i a l .
 p l a i n t i f f a p p e a l s from an o r d e r o f t h e D i s t r i c t C o u r t

g r a n t i n g a new t r i a l t o d e f e n d a n t S t a t e of Montana. The

S t a t e c r o s s - a p p e a l s from t h e c o u r t ' s r e f u s a l t o d i s m i s s t h e

c a s e a g a i n s t i t , a motion on which w a s made a t t h e c l o s e of

p l a i n t i f f ' s case-in-chief. With r e s p e c t t o t h e a l l e g a t i o n s

on d e s i g n and c o n s t r u c t i o n , p l a i n t i f f a r g u e d d u r i n g o r a l

argument t h a t t h o s e c l a i m s were s t i l l b e i n g advanced and

t h a t t h e y s h o u l d b e c o n s i d e r e d by t h i s C o u r t . There was

t e s t i m o n y by t h e e n g i n e e r s t h a t went t o q u e s t i o n s of con-

s t r u c t i o n and d e s i g n n e g l i g e n c e , as w e l l a s t o t h e problem

of marking t h e a c c i d e n t a r e a .

I t s h o u l d be n o t e d t h a t d u r i n g t h e t r i a l d e f e n d a n t s

c l a i m e d t h e y were u n a b l e , a f t e r d i l i g e n t l y s e e k i n g , t o f i n d

Godkin, t h e d r i v e r of t h e F l i n t V a l l e y l o g g i n g t r u c k .

W i t h i n d a y s of t h e c o n c l u s i o n of t h e t r i a l , c o u n s e l f o r

F l i n t V a l l e y l o c a t e d Godkin, a c o n v i c t o u t on p a r o l e . He

now comes up w i t h a most a r t i c u l a t e s t a t e m e n t r e g a r d i n g t h e

c i r c u m s t a n c e s of t h e a c c i d e n t which had happened some y e a r s

b e f o r e on a s t r e t c h of r o a d which h e had d r i v e n ( e x a c t l y ,

according t o h i s a f f i d a v i t ) eleven t i m e s . In his affidavit,

Godkin e x p r e s s e s h i s w i l l i n g n e s s t o r e t u r n t o Montana f o r

t r i a l o r t o be deposed.
To g e t a new t r i a l where a d d i t i o n a l e v i d e n c e h a s come

t o l i g h t , t h e moving p a r t y must d e m o n s t r a t e , i n t e r a l i a ,

t h a t i t was n o t l a c k of d i l i g e n c e which f a i l e d t o t u r n up

t h e e v i d e n c e a t a n e a r l i e r time. See K e r r i g a n v . ~ e r r i g a n

( 1 9 4 3 ) , 115 Mont. 1 3 6 , 144-45, 139 P.2d 533, 535. W e find

t h i s e v i d e n c e d o e s n o t meet t h e s t a n d a r d s s e t i n ~ e r r i g a n o
t

w a r r a n t a new t r i a l .
P l a i n t i f f appeals t h e D i s t r i c t Court order g r a n t i n g a

new t r i a l , advancing a claim of i n v a l i d i t y f o r f a i l u r e t o
p a r t i c u l a r l y s p e c i f y t h e grounds t h e r e f o r a s r e q u i r e d by

Rule 5 9 ( f ) , M.R.Civ.P., and c o n t e n d i n g t h e c o u r t abused i t s

d i s c r e t i o n i n s o o r d e r i n g a new t r i a l . A s p l a i n t i f f re-

q u e s t e d and r e c e i v e d from t h e D i s t r i c t C o u r t a s t a t e m e n t o f

C e r t i f i c a t i o n of I s s u e s on Appeal, it a p p e a r s t h e f i r s t

c l a i m i s moot. The S t a t e c r o s s - a p p e a l s a l l e g i n g t h e D i s -

t r i c t Court erred i n f a i l i n g t o dismiss t h e a c t i o n a g a i n s t

i t a t t h e end of p l a i n t i f f ' s c a s e - i n - c h i e f . I n meeting

p l a i n t i f f ' s s t a t e m e n t of t h e i s s u e s , t h e S t a t e c l a i m s t h a t

t h e o r d e r g r a n t i n g a new t r i a l i s s u p p o r t e d by t h e e v i d e n c e .

The S t a t e a r g u e s a new t r i a l w a s c o r r e c t l y o r d e r e d f o r

four reasons:

1. P l a i n t i f f ' s attempt a t introducing i t s Exhibit #28,

a p e t i t i o n s i g n e d by t h e r e s i d e n t s of t h e Garrison-Warm

S p r i n g s a r e a p r o t e s t i n g t h e c o n d i t i o n s of t h e highway i n t h e

v i c i n i t y o f t h e a c c i d e n t , was harmful and p r e j u d i c i a l t o t h e

S t a t e such t h a t i t c o u l d n o t r e c e i v e a f a i r t r i a l .

2. The award of damages was e x c e s s i v e , g i v e n under t h e

i n f l u e n c e of p a s s i o n o r p r e j u d i c e , s u c h t h a t a new t r i a l was

properly ordered. S e c t i o n 93-5603(5), R.C.M. 1947.

3. The e v i d e n c e w a s i n s u f f i c i e n t t o s u p p o r t t h e v e r -

d i c t , e s p e c i a l l y i n l i g h t of t h e t e s t i m o n y g i v e n by a high-

way p a t r o l m a n t o t h e e f f e c t t h a t p l a i n t i f f w a s c o n t r i b u t o r i l y

n e g l i g e n t s u c h t h a t p l a i n t i f f ' s r e c o v e r y s h o u l d have been

barred.

4. T h e r e w a s e r r o r i n g i v i n g I n s t r u c t i o n Nos. 28, 30,

34, and 4 4 , e s p e c i a l l y t h e f i r s t two which employed d e s c r i p -

t i v e language, e.g., dangerous i n t e r s e c t i o n s , embodying

c o n c l u s i o n s which w e r e w i t h i n t h e p r o v i n c e of t h e j u r y a l o n e

t o make.
 In its Certification of Issues on Appeal, which the
State deems "irregular" but to which it says it does not
object, the District Court stated:
". . . the only reason for ...
granting a
new trial in this action is as follows:
"The Appellant's attempted [sic] to introduce
their [sic] Exhibit 28 ...[which] was not
listed in the pre-trial order as a proposed
exhibit. As such its attempted introduction
was an irregularity in the trial which pre-
vented the defendants from having a fair
trial, and is a grounds [sic] for a new trial
under Section 93-5603(1), R.C.M. 1947."
The purposes of requiring a statement of the reasons
are to narrow the issues on appeal and to obviate the need
for this Court to read the entire record to find the rationale
underlying the ruling. Rule 59(f), M.R.Civ.P., ~dvisory
Committee's note; Ballantyne v. The Anaconda Company (1978),
Mont. , 574 P.2d 582, 35 St.Rep. 172. These pur-
poses have been accomplished by the District Court's certi-
fication. In virtue of that certification of issues, we
need not entertain the last three of defendant's reasons in
support of the order for new trial.
Granting a new trial is within the sound discretion of
the trial court, and its order so granting a new trial will
be reversed only if manifest abuse of that discretion is
shown. Such an order will be upheld if it can be sustained
on any ground stated in the order or opinion accompanying the
order. Rule 59(f), M.R.Civ.P. The question thus is whether
the order may be sustained on that ground specified by the
District Court as the reason for granting the new trial.
Plaintiff argues that defendant suffered no prejudice,
such that it was denied a fair trial, because of plaintiff's
attempt to offer its Exhibit # 2 8 . The court refused to
admit the exhibit upon defendant's objection and further
refused to grant defendant's motion for a mistrial. The
jury at no time was allowed to view the exhibit. Counsel's

questions were brief and did not convey information calcu-
lated to prejudice the jury. Without the exhibit the jury,
at the conclusion of trial, had received evidence sufficient
to form the foundation for the belief that the intersection-
transition area was so confusingly marked as to have con-
tributed to the accident and thus to ascribe fault to the
State.
The State points to the District Court's certification
of issues as evidence enough of the prejudice which it
suffered by the attempted introduction of Exhibit # 2 8 ,
declaring that that alone demonstrates that the trial judge
believed the jury was unduly influenced and that the preju-
dice had not been cured, even with instructions. The peti-
tion, drafted and signed by local residents, says the State,
was likely of greater weight than the testimony of experts,
and even the attempt to introduce it would persuade the jury
to find against the State.
We find the above argument insufficient to warrant the
granting of a new trial in view of the fact here that it was
not admitted as evidence. We have said the following in
respect of granting a new trial:
". .. it is not every error or defect that
occurs during the course of a trial that
furnishes grounds for granting a new trial.
The court must disregard any error or defect
which does not affect the substantial rights
of the parties. (Rule 61, M.R.Civ.P.) To
authorize granting a new trial, the error com-
plained of must be an error 'materially af-
fecting the substantial rights of [the ag-
grieved party] ' (section 93-5603, R.C.M. 1947)
and the error must be of such character that
 refusal to grant a new trial 'appears to the
court inconsistent with substantial justice.'
(Rule 61, M.R.Civ.P.) In other words, if the
substantial rights of the aggrieved party are
not prejudiced, only 'harmless error' is
involved not authorizing a new trial to be
granted, Within these limitations, the trial
court has broad discretion to grant a new
trial and will not be reversed except for
abuse thereof. [Citations omitted.]" Martello
v. Darlow (1968), 151 Mont. 232, 235, 441 P.2d
175, 176.
As in Martello we find that, under the circumstances of this
case, the error did not affect the complaining party's
substantial rights. Therefore, the District Court abused
its discretion in granting a new trial on this ground alone.
Defendant's other issue bears brief consideration.
That issue is whether the District Court erred in failing to
dismiss the action against the State at the conclusion of
plaintiff's case-in-chief.
The State contends that plaintiff failed to prove
either negligence or proximate cause such that the State
could be chargeable for plaintiff's damages. Essential to
plaintiff's case, says the State, was proof that the State
was negligent in marking the highway at the site of the
accident - that such negligence was the legal (proximate)
and

cause of the accident in which plaintiff received his in-
juries. The States further contends that assuming arguendo
it was negligent in marking the area, that negligence alone
cannot be transformed into the requisite proximate cause.
At most, the State says, it furnished the conditions in
which the injury occurred by the subsequent independent act
of a third person, Flint Valley, and asks us to rely on
Boepple v. Mohalt (1936), 101 Mont. 417, 436, 54 P.2d 857,
862. Existence of conditions is not proximate cause; there-
fore, plaintiff's case fails for want of proof, according to
the State.
 Although t h e s e arguments a r e sound as f a r a s t h e y g o ,

t h e y f a i l t o go f a r enough. I t must be remembered, a s t h i s

Court r e c e n t l y s a i d , t h a t ". . . where one has n e g l i g e n t l y

c a u s e d a c o n d i t i o n o f d a n g e r , he i s n o t r e l i e v e d of r e s p o n -

s i b i l i t y f o r damage c a u s e d t o a n o t h e r m e r e l y b e c a u s e t h e

i n j u r y a l s o i n v o l v e d t h e l a t e r misconduct of someone e l s e . "

Halsey v. Uithof ( 1 9 7 5 ) , 166 Mont. 319, 327, 532 P.2d 686,

690. An i m p o r t a n t q u a l i f i c a t i o n of t h i s r u l e , however, was

s t a t e d immediately t h e r e a f t e r . "But, t h i s i s t r u e only i f

both n e g l i g e n t a c t s are i n f a c t concurring proximate causes

of t h e i n j u r y ; and it i s n o t t r u e i f t h e l a t e r n e g l i g e n c e i s

a n i n d e p e n d e n t , i n t e r v e n i n g s o l e c a u s e of t h e i n c i d e n t . "

H a l s e y , 166 Mont. a t 327, 532 P. 2d a t 690. I n deciding

Halsey, t h e Court e n t e r t a i n e d t h e s e thoughts:

" I n d e t e r m i n i n g whether t h e n e g l i g e n c e i n
c r e a t i n g a h a z a r d ( t h e t r u c k s t a l l e d on t h e
highway) was a p r o x i m a t e c a u s e of t h e a c c i -
d e n t , t h i s t e s t i s t o be a p p l i e d : Did t h e
w r o n g f u l a c t , i n a n a t u r a l c o n t i n u o u s sequence
of e v e n t s , which m i g h t r e a s o n a b l y be e x p e c t e d
t o f o l l o w , produce t h e i n j u r y ? I f s o , it i s
a c o n c u r r i n g p r o x i m a t e c a u s e of t h e i n j u r y
even though t h e l a t e r n e g l i g e n t a c t of a n o t h e r
[Walker and McWhirk] c o o p e r a t e d t o c a u s e i t .
On t h e o t h e r hand, i f t h e l a t t e r ' s a c t of
n e g l i g e n c e i n c a u s i n g t h e a c c i d e n t was of such
a c h a r a c t e r a s n o t r e a s o n a b l y t o be e x p e c t e d
t o happen i n t h e n a t u r a l sequence of e v e n t s ,
t h e n s u c h l a t e r a c t o f n e g l i g e n c e i s t h e inde-
p e n d e n t , i n t e r v e n i n g c a u s e and t h e r e f o r e t h e
s o l e proximate cause of t h e i n j u r y . (Cita-
t i o n s omitted. )

"Applying t h e f o r e g o i n g t e s t t o t h e i n s t a n t
s i t u a t i o n , it was r e a s o n a b l e t o f o r e s e e t h a t
t h e e a s t b o u n d d r i v e r s [Walker and McWhirk]
would see t h e t r u c k parked on t h e highway.
C o n s i d e r i n g Montana's c a s e law and t h e f e d e r a l
c o u r t views on o u r l a w , t h i s C o u r t a g a i n f i n d s
t h a t abstract foreseeability is not sufficient
t o m e e t t h e r e q u i r e m e n t s of p r o x i m a t e c a u s e .

"Applying J i m i s o n h e r e , a p p e l l a n t was n o t
obliged t o foresee o r a n t i c i p a t e t h a t e i t h e r
Walker o r McWhirk would come o v e r t h e h i l l a t
such speeds t h a t they could n o t s t o p w i t h i n
t h e a s s u r e d c l e a r d i s t a n c e ahead of them.
 Neither was appellant obliged to foresee that
Walker would continue over the hill without
braking after seeing the reflector at the top
and should have realized there might be trou-
ble on the other side. All of this leads to
the conviction that the district court should
have granted appellant's motion for a directed
verdict at the close of respondent's case-in-
chief." Halsey v. Uithof, 166 Mont. at 328,
532 P.2d at 690-91.
A case should be taken from the jury only when the
facts and reasonable inferences drawn from them, when viewed
in a light most favorable to the party against whom the
motion for a directed verdict is made, cannot sustain a
finding for the party against whom it is made. See e.g.,
Thomas v. Merriam (1959), 135 Mont. 121, 126, 337 P.2d 604
and cases cited therein. Here evidence supporting plain-
tiff's case was presented, and whether that evidence was
sufficient to sustain a prima facie case undoubtedly was
considered by the trial judge in making his ruling against
defendant. The court properly let the case go to the jury.
As to the other assertions of error made by the State,
the following is dispositive.
1. The State claims that the award of damages was
excessive, given under the influence of passion and preju-
dice. As noted in Brown v. Columbia Amusement Co. (1931),
91 Mont. 174, 193, 6 P.2d 874, no two cases are alike. The
rule is that given we have a justice system which confides
to juries the duty to determine the issues and to fix the
amount of compensation to be paid, unless the award is such
to shock the conscience and understanding, it must be ac-
cepted as conclusive. The award in the instant case is not
so shocking as to be deserving of vacation.
2. The States claims that the evidence was insuffi-
cient to support the verdict and that plaintiff's claim
should have been barred because of his contributory negli-
gence. he only testimony as to possible contributory
negligence was that given as mere speculation by the highway
patrolman who investigated the accident, but who did not
witness it. Again, it was the task of the jury to determine
if the factual circumstances were such that plaintiff could
be deemed contributorily negligent; it did not so find. It
concluded that plaintiff's testimony to the effect that he
did check his rear-view mirror for upcoming traffic, and
that he did signal so as to warn any upcoming traffic of his
intention to turn left, was believable.
3. The other objection centers on certain of the
instructions given the jury. The State particularly objects
to those numbered 28, 30, 34 and 44, putting emphasis on the
first two. The charge is that the instruction contained
language drawing conclusions which were within the province
of the jury to make. While these instructions are not

necessarily model, we do not find them to be so prejudicial
to defendant as to be made the basis for a new trial.
Again, error, to be made the basis for a new trial, must be
so significant as to materially affect the substantial
rights of the complaining party. See Martello v. Darlow,

supra.
The order of the District Court granting a new trial is
set aside and the verdict and judgment reinstated.
We Concur:

Chief Justice

2 ' . j; ,i L/- d,
Justices - I