Wollaston v. Burlington Northern, Inc.

No. 14795
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980

HAROLD WOLLASTON,
Plaintiff and Appellant,
VS.

BURLINGTON NORTHERN, INC.,
a Delaware Corporation, and
SANDERS COUNTY, MONTANA,

Defendants and Respondents.

Appeal from: District Court of the Fourth Judicial District,
Honorable Jack L. Green, Judge presiding.
Counsel of Record:
For Appellant:

Smith, Connor, Van Valkenburg & Larrivee, Missoula,
Montana
Paul Smith argued, Missoula, Montana
For Respondents:
Garlington, Lohn and Robinson, Missoula, Montana
Robert Sheridan argued, Missoula, Montana
Kroschel, Peterson and Koolen, Billings, Montana

Submitted: February 22, 1980
Decided: JUN 17 lw,
i[\$:
Filed: ._- -- -

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the Court.

This is an appeal from a judgment in favor of Sanders
County, Montana, upon a jury verdict in the Fourth Judicial
District, Sanders County, arising out of a train-vehicle collision
in which the plaintiff, Harold Wollaston, was injured.
The collision occurred on January 19, 1974, at a grade
crossing approximately one mile east of Thompson Falls,
Montana. The plaintiff, Harold Wollaston, was operating a
1967 Pontiac in a northerly direction on the high school
road which crosses over the Burlington Northern tracks. At
the same time, a freight train operated by the defendant,
Burlington Northern, in a westerly direction was nearing the
crossing. The collision occurred at approximately 11:30
a.m. At the point of the collision, there is a single
track which crosses the high school road. Standard cross-
buck signs protected the crossing on either side. There was
no other alarm or signal device.
The grade crossing was established pursuant to an
easement agreement between Sanders County and Northern
Pacific Railway (now merged in Burlington Northern, Inc.) in
1959. The easement agreement provided that the county was
to maintain the crossing and road, and that the county would
pay for automatic protection required if the county, the

railroad or the State of Montana ever found that they were
needed.
At the time of the collision, Wollaston was 17 years old.
The collision occurred on a clear day in January. There was
no posted speed limit on the approach road which is 200 feet
in length from Highway 200 to the single track crossing. A

speed tape of the train showed it to be going approximately
60 miles per hour before the collision.
Wollaston was severely injured. He brought suit against

both Sanders County and Burlington Northern, Inc. Before the
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trial, however, settlement was reached between Burlington
Northern, Inc., and Wollaston, and the trial proceeded
against Sanders County alone. Sanders County defended on
the ground of contributory negligence, which issue is proper
since the accident occurred prior to July 1, 1975, the
effective date of the comparative negligence statute.
Dunham v. Southside National Bank Of Missoula (1976), 169
Mont. 466, 548 P.2d 1383.
The appellant Wollaston presents the following issues
for review:
1. Should the appellant, a minor, be held to the same
standard of care as an adult in the operation of his motor
vehicle?
2. Should the trial court have instructed the jury
that contributory negligence was not a bar to recovery if
Sanders County was guilty of reckless or wanton misconduct?
3. Did the District Court err in refusing to strike the
testimony of witness Joe Sol relative to his opinion as to the
cause of the accident?
4. Did the District Court err in allowing evidence of lack
of prior accidents at the crossing?
5. Did the District Court err in its instruction relating
to the county's duty to maintain roadways?
6. Did the District Court err in refusing part of appellants
exhibit no. 5 and in refusing to allow appellant's witnesses to

testify regarding the State's recommendation for protection at
the crossing?
7. Did the District Court err in failing to give appellant's

requested instructions as to the source of satisfaction of any
judgment obtained against Sanders County?
8. Was the statement to the jury regarding Burlington
Northern's settlement in error?
 Issue no. 1.
At the outset of the trial, the District Court granted
the request of Sanders County to grant an order - limine
in
which prevented Wollaston from introducing any evidence that
minors are held to a lesser standard of care than adults in
the operation of motor vehicles. We hold that a youth
driving an automobile is held to the same standard of care
as an adult, that is to the degree of care that would be
exercised by a reasonable and prudent operator under the
same circumstances. In Montana, " [tlhe general rule is that
after a child has reached the age of fourteen years he is
presumed, as a matter of law, to be capable of contributory
negligence." Sherris v. Northern Pac. Ry. Co. (1918), 55
Mont. 189, 194, 175 P. 269, 270. See also, E. I. Du Pont
&. , .
De & Company v. Edgerton (8th Cir. 1956), 231 ~ . 2 d

430, 435. Nothing in the licensing statutes relating to
drivers and operators of motor vehicles distinguishes between
adults and minors who are licensees and many states considering
the matter have adopted the rule we proclaim here. Prichard
v. Veterans Cab Company (1965), 487- Gal-Rptr. 904, 408
P.2d 360; Williams v. Esaw (1974), 214 Kan. 658, 522 P.2d
950; Tipton v. Mullinix (Okla. 1973), 508 P.2d 1072; Restatement
(Second) of Torts S283A, Comment C.
Issue no. 2.
Plaintiff, at the close of his case, moved the District
Court that the pleadings be amended to conform to the evidence
to include the allegation that Sanders County was grossly
negligent. The court reserved ruling on the motion. Later,
it refused plaintiff's proposed instruction no. 53, which
would have told the jury that contributory negligence was
not a bar to recovery for injuries caused by the reckless or
wanton misconduct of Sanders County. Wollaston claims error
in the refusal of this instruction.
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 Montana follows the rule that contributory negligence
of a plaintiff is no bar to his recovery for injuries caused
by the reckless or wanton misconduct of the defendant.
Mihelich v. Butte Electric Ry. Co. (1929), 85 Mont. 604, 281

Appellant further cites Mallory v. Cloud (1975), 167
Mont. 115, 118, 535 P.2d 1270, 1272, for authority to the
effect that if the wantonness or recklessness of a defendant is
a question of fact, it is improper to remove that issue from
the jury .
Wollaston relies on the number of letters from 1970
until the date of the accident from various persons and
public bodies asking the County Commission of Sanders County
to install warning devices at the crossing; from the testimony
of persons who orally requested the County Commission to
install such signals; and the testimony of Wesley Stearns
that the crossing was hazardous or dangerous; that Sanders
County had the ability to appropriate money for the costs
of signal installation; that Sanders County never established
a stop sign at the crossing, nor set a speed limit on trains
passing over the crossing; and other factors.
The transcript does not reveal the objections made to
proposed instruction no. 53, nor the reasons for which the
court refused the same. However, the proferred instruction
included the following language:
"For a defendant to have caused plaintiff's
injuries by reckless or wantonness conduct,
it is sufficient if the facts and circumstances
are such that the consequences attributable
to the wrongful conduct charged are within
the field of reasonable anticipation; that such
consequences might be the natural and probable
results thereof, though they may not have been
specifically contemplated or anticipated by
the person so causing them."
 In Hannigan v. Northern Pacific Railway Company (1963), 142
Mont. 335, 347-48, 384 P.2d 493, 499, we defined reckless and wanton
conduct as follows:
". .. In the LeCompte case, this court quoting from
38 Am.Jur., Negligence, 5178, pp. 855, 856, stated:
"'A defendant's act is properly characterized as
willful, wanton, or reckless, within the meaning of
the foregoing rule, only when it was apparent, or
reasonably should have been apparent, to the defendant
that the result was likely to prove disastrous to
the plaintiff, and he acted with such indifference
toward, or utter disregard of, such a consequence that
it can be said he was willing to perpetrate it.'"
Under that rule, the proferred instruction no. 53 incorrectly
defined reckless and wanton misconduct, and was properly denied.
Implicit in the appellant's contention respecting this
proferred instruction is the argument that the court should
have granted the motion of the appellant made at the close
of appellant's case in chief to amend the pleadings to conform
to the proof. The record shows that a motion was made to
amend, "in tht respect the county was guilty of gross negligence,
or willful and wanton misconduct." The reasons given at the
time of making the motion were that there were two instances
where letters from the Burlington Northern had requested of
Sanders County some response as to whether they desired
to have signals installed at the crossing; another, that a
group of citizens had appeared before the county commissioners
asking that such signals be installed but that these requests
were ignored or not acted upon by Sanders County. The court
reserved ruling on the motion, and asked counsel not to let
the court forget to rule on it before the case got to the
jury. However, no further motion or discussion appears in
the record on this motion.
Because their record is devoid of any ruling on the
motion to amend the pleadings, and because the court's
ruling on the proferred contributory negligence instruction
may have been on t h e ground t h a t t h e i n s t r u c t i o n w a s i n s u f f i c i e n t

a s a m a t t e r of l a w , w e w i l l deem t h a t t h e motion t o amend

t h e p l e a d i n g s was d e n i e d by t h e c o u r t . I n J o y v. L i t t l e

( 1 9 5 8 ) , 134 Mont. 82, 90, 328 P.2d 636, 640, w e s a i d t h a t

t h e b e t t e r p r a c t i c e i s f o r a p a r t y who d e s i r e s t o have h i s

p l e a d i n g s amended t o conform t o proof a d m i t t e d w i t h o u t

o b j e c t i o n i s t o have t h e amendment a c t u a l l y made. We also

s a i d i n t h a t c a s e t h a t amendment w i l l n o t be p e r m i t t e d when

t h e e f f e c t i s t o d e p a r t from t h e o r i g i n a l c a u s e of a c t i o n o r

t o make a new c a s e and one d i f f e r e n t from t h a t a l l e g e d i n

t h e p l e a d i n g s . W e h e l d i t may b e done o n l y t o c o r r e c t t h e

pleading i n c e r t a i n of its p a r t i c u l a r s , but leaving t h e case

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

a c t i o n o r defense.

However, Joy v . L i t t l e , s u p r a , w a s d e c i d e d b e f o r e t h e

a d o p t i o n i n Montana of t h e F e d e r a l Xules o f C i v i l P r o c e d u r e

(Ch. 1 3 , Laws o f Montana 1 9 6 1 ) . In e f f e c t , t h e r u l e s provide

f o r notice pleadings. Rule 1 5 ( b ) , M.R.Civ.P., provides t h a t

i s s u e s n o t r a i s e d i n t h e p l e a d i n g s , i f t r i e d by e x p r e s s o r

i m p l i e d c o n s e n t , are t r e a t e d a s though p l e a d e d , and motion t o

amend p l e a d i n g s t o conform t o t h e e v i d e n c e and t o r a i s e such

unpleaded i s s u e s may be made a t any t i m e . W o l l a s t o n ' s motion

i n e f f e c t r a i s e d a new i s s u e of a f f i r m a t i v e d e f e n s e , which can

b e done under Rule 1 5 ( b ) . Moore's F e d e r a l P r a c t i c e Vol. 3, §

1 5 . 1 3 ( 2 ) , a t 15-165, r e l . 41-8/78). Wollaston would be e n t i t l e d

t o t h e amendment, and t o i n s t r u c t i o n s t h e r e u n d e r , u n l e s s t h e r e

w a s no e v i d e n c e t o s u p p o r t t h e motion t o conform.
A s w e examine t h e e v i d e n c e , w h i l e t h e r e w a s s u f f i c i e n t

e v i d e n c e o f n e g l i g e n c e on t h e p a r t o f S a n d e r s County t o s u b m i t

t h a t i s s u e t o t h e j u r y , w e f i n d as a m a t t e r of law t h a t t h e

e v i d e n c e was l a c k i n g t o i n d i c a t e t h a t S a n d e r s County was i n -

d i f f e r e n t t o o r u t t e r l y d i s r e g a r d e d t h e consequences t o t h e

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plaintiff, the elements necessary to constitute willful,
wanton or reckless negligence. In that situation there was
no abuse of discretion by the District Court in refusing to
change or add a legal theory of defense after the introduction
of all the evidence. Caddy-Imler Creations, Inc. v. Caddy (9th
Cir. 1962), 299 F.2d 79, 84.
Thus the decision of the District Court not to allow
the amendment to the pleadings here rested within its sound
discretion, and will not be set aside by us unless we find
it clearly erroneous. We find no such clear error here.
Issue no. 3.
The District Court refused to strike the evidence of
highway patrol sergeant Joe Sol that the incident occurred
because Wollaston failed to yield the right of way at the
grade crossing. The contention that the District Court
erred is based on two grounds, (1) that the opinion reached
the ultimate fact to be determined by the jury, and (2) that
Wollaston was deprived of full examination by virtue of the
fact that officer Sol had lost the notes made by him at the
time that he investigated the accident.
We have held in Montana that the opiEion cf the
investigating patrolman as to the cause of the accident, on
the basis of failing to yield the right of way, is admissible.
Rude v. Neal (1974), 165 Mont. 520, 530 P.2d 428, 432.
Under Rule 704, M.R.Evid., testimony from an expert is not
objectionable because it embraces the ultimate issue to be
decided by the trier of fact. The question here is whether
the patrolman should have been allowed to give his opinion
as to the cause of the accident in view of the fact that he
lost notes which he had made during the investigation. In
that connection, we look at Rule 705, M.R.Evid., with respect
to this point:
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 "The expert may testify in terms of opinion or
inference and give his reasons therefor without
prior disclosure of the underlying facts or data,
unless the court requires otherwise. The expert
may in any event be required to disclose the
underlying facts or data on cross-examination."
Rule 705, makes a substantive change in the method of
questioning experts and obtaining their opinions. As the
commission comment noted following this rule, it avoids the
traditional requirement for a hypothetical question to the
expert. As a matter of fact, under the first sentence of
the rule, the expert can give his opinion "without prior
disclosure of the underlying facts or data" unless the court
otherwise requires. Plainly under this section, Sol's
testimony respecting his opinion was admissible, irrespective
of what underlying facts or data may have buttressed his
opinion. It is then a matter for a cross-examiner to determine
the underlying facts based on which the expert bases his
opinion and expose the weaknesses, if any, in those underlying
facts for the consideration of the jury. Here the jury was
made quite aware by the cross-examiner that the patrolman
had lost his original notes, and that he was basing his
opinion on his recollection, photographs and documents he
examined during the trial. The intent of Art. VII, M.R.Evid.,
Opinions and Expert Testimony, is to make persons possessed
of specialized knowledge helpful in assisting the trier of
fact to understand the evidence. As long as the cross-
examiner is given adequate opportunity to bring forth for
the jury's consideration the weaknesses of any assumptions
or facts underlying the opinion, the weight to be given the
expert's testimony even on the ultimate issue, is now for
the jury to determine. In that situation, we do not find
prejudicial error here as to the testimony of the highway
patrolman.
 Issue no. 4.
The District Court had made an order granting plaintiff's
motion - limine to exclude evidence of the absence of
in
previous accidents at the crossing on the condition that
Sanders County could use such evidence in their defense if
Wollaston created an issue of whether "everyone should have
known the crossing's dangerous condition". During the
trial, the court allowed Russell Kartse to testify that
there has never been any previous accidents at the crossing.
Wollaston had called Dr. William D. Berg to testify as
an expert witness concerning the need for additional protection
at this grade crossing. On his cross-examination by Sanders
County, it was developed that one of the factors he would
look for in determining whether a crossing was dangerous is whether
there had been prior accidents. Sanders County now claims
that the lack of prior accidents became an issue because of
this testimony, which went in without objection.
Sanders County is in the position of having created the
issue through cross-examination to fit within the exception
provided by the District Court in its order - limine.
in
Ordinarily we would not give weight to that sort of legal
maneuvering, but irrespective of the court's order -
in
limine, it appears that whether there have been prior accidents
at this crossing is relevant to the issue that additional production
was needed. The appellant here seeks to hold Sanders County
liable on the ground that it did not provide additional
protection for the crossing and was negligent or grossly
negligent in not so providing. It is clear that whether
there had been accidents at the grade crossing would be
relevant to the issue of the need for such additional protection.
Under Rule 402 of the Montana Rules of Evidence, "[all1
relevant evidence is admissible". The evidence was admissible
here regardless of the order - limine.
in
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 Issue no. 5.
Wollaston claims error in the giving by the District
Court of the following instruction:
"A county or other governmental entity is under
no duty to keep its streets and roads clear of
snow and ice or to use sand or other abrasive
substance unless the condition caused by the
snow or ice constitutes an unusual or dangerous
obstruction to travel."
Wollaston's objection was that the instruction did not
provide an accurate statement of the law as related to this
case.
The question presented is whether we should pin any
liability on the county either under its contract to maintain
the crossing, or under its duty as a governmental entity,
for failure either to sand the surface of the grade crossing
or remove the accumulated ice. As to the agreement to "maintain"
the grade crossing, we would determine that the duty under
that agreement does not extend further than the ordinary
duty of a governmental entity with respect to accumulations
of snow and ice.
Wollaston claims that there was "black ice" on the
surface of the roadway leading to the crossing. The patrolman
testified that he observed some ice, which was melting at
the time that he arrived at the accident scene, perhaps an
hour later. Wollaston's vehicle left skidmarks of 20 feet
to the point of collision, not unusual in view of his speed
of 15 to 20 miles per hour approaching the intersection. Nothing

in the evidence specifically indicates that the icy condition
of the surface brought about the collision with the train.
The instruction given by the court follows the duty
required of a municipality as set forth in O'Donnell v. City

of Butte (1922), 65 Mont. 463, 475-476, 211 P. 190. In
Luebeck v. Safeway Stores, Inc. (1968), 152 Mont. 88, 93,
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 /

446 P.2d 921, 924, this Court held that where danger created
by the elements such as the forming of ice and the falling
of snow are universally known, or actually known, there is
no liability on the part of a landowner. Because Luebeck did
not relate to a governmental agency, no reference is made in
that case to the O'Donnell case. In the O'Donnell case, it
was stated that the dangerous, unusual, or exceptional
conditions which required sanding or other actions by the
governmental entity meant conditions so different in character
from those ordinarily brought about by the winter weather
prevalent in a given locality, as to create an interference
in travel. We find no vice in the instruction given by the
court in this case, because under the facts shown, we do not
determine that the county violated the standard of ordinary
care in its maintenance of the grade crossing, whether as a
matter of fact or a matter of law.
Issue no. 6.
This issue relates to the refusal by the District Court
of some evidence, and the admission of other evidence, which
went to the issue of the need for flashing lights and crossing
gates at this grade crossing.
John Fisher called on behalf of the plaintiff testified
that as an employee of the Forest Service, he had taken a
traffic count at this crossing by using mechanical recorders

in October 1973. His exhibit one and his personal testimony
showed there were 425 vehicles per day at that time. his
information was transmitted by the Forest Service to the
mayor of Thompson Falls, but not to Sanders County.
The court admitted the first four pages of exhibit 5,
which was the State of Montana's ailr road Crossing Protection
Policy but refused the last two pages of that exhibit on the
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ground that the hazard rating for the crossing in 1977 was
not necessarily connected to the hazard rating in 1974, the
time of the accident.
The ~istrictCourt has allowed respondents exhibit no.
2, a letter from the Department of Highways dated July 24,
1974, stating that the crossing in question had a hazard
index of 116.4. The effect of this letter would be that
since the hazard index did not exceed 200, no other signals
were required at the grade crossing. It was contended
however, that this exhibit should not have been admitted
because the letter was not received by the county until six
months after the date of the accident. The 425 car count
found by the Forest Service would have established a hazard
index at the crossing of 438. The court refused a hypothetical
question to a witness (Morgan) based on the assumption of
either 250 or 425 daily car counts as to the need for additional
protection of the crossing. Morgan was an employee of the
Montana State Highway Department whose job was to establish
priorities for upgrading railroad crossings under a Montana
safety program. If Morgan had been allowed to testify, he
would have stated that the crossing warranted additional
signals under Montana's policy on January 19, 1974. The
letter from the Montana State Highway Department dated July
24, 1974, was from Jack R. Beckert, the administrator of the
engineering division, to the county commissioners. The
letter indicated that the crossing had a hazard index of
116.4 and additional signals were not warranted according to
Montana's Protective Policy.
The court at first had refused to admit exhibit two,
the letter, on the basis that the hazard index therein was
not based on actual count. Later, when another witness was
testifying, it admitted the exhibit as a business record
between the State Highway Department and the county.
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 All of the testimony that related to hazard indices
and the adversary contentions with respect to those indices
arise because of the passage of the Federal Highway Safety
Act of 1973. We discussed some of the implications of this
act, insofar as the railroad's duty at a crossing is concerned,
in Runkle v. Burlington Northern Inc. (Cause no. 14629,
Decided June 16, 1980). There we stated that the Federal
Highway Safety Act of 1973 represents an effort by the
federal government to improve the safety of grade crossings,
and to provide funding for the same. The act does not
lessen in any degree the duty, statutory or common law, of a
railroad, and in this case, the county which by contract was
bound to maintain a good and safe crossing.
By virtue of section 61-8-202, MCA, the Montana State
Highway Department was required to adopt a manual on specifications
for a uniform system of traffic control devices throughout
the state. Under this statute, and subsequent studies, the
Department has promulgated the Manual for Uniform Traffic
Control Devices (MUTCD). Unless an order by an authorized
public entity has been issued to a railroad or to some other
entity to provide certain signals at grade crossings or
other traffic control devices, the Manual does not have the
force and effect of law. Williams v. Maley (19671, 150
Mont. 261, 267, 434 P.2d 398, 401. In this case the court
by instruction defined ordinary care, and by further instructions
told the jury that public authorities have the duty to exercise
ordinary or reasonable care to plan and design the highways to
make them reasonably safe for the traveling public; and further
that the duty of the county in maintaining the crossing was
commensurate with the increased hazard occasioned by any ob-
structions so that it was the duty of the county to exercise
ordinary care under the circumstances shown. In his personal
testimony before the court, witness Morgan had informed
the jury that when an intersection had attained a hazard
index in excess of 200, that number would under the Manual
require additional grade crossing protection. He further
testified that this crossing had a hazard index of 258, and
if 425 cars were crossing daily, a hazard index of 438.
These were factors, therefore, which the jury could consider
in determining whether or not the county exercised ordinary
care in failing to provide additional signals or devices at
the crossing. The claimed errors under this issue were
therefore not prejudicial to Wollaston's case, since they
were only cumulative on one side or the other of the issue.
Issue no. 7.
The court instructed the jury as follows:
"You are instructed that you are not to con-
sider in what manner the defendant Sanders
County meets its obligation as to judgment
if rendered against it in this case."
That instruction was offered by Wollaston, after the
court had refused the earlier instructions from Wollaston on
the same subject. Wollaston claims that his first such in-
struction should have been given. In general it would have
told the jury that the county could have satisfied any
judgment against it out of insurance, its general funds,
property taxes, or proceeds from the sale of bonds.
Wollaston contends that the jury should have been given
the first instruction so that the "juror-taxpayer" problem
would be eliminated in that the jury would put aside the
fact that they were taxpayers if they were informed that
insurance was a possible method of satisfying the judgment.
Wollaston's proposed instruction followed section 2-9-
316, MCA, as to methods or political subdivisions to satisfy
final judgments. However, the method of satisfying a judgment
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is not a concern of a jury determining liability and fixing
damages. The instruction given by the court properly informed
the jury that it should not concern itself on that point.
Any further instruction about possible sources of payment of
a judgment might have led the jury into speculation on
issues not properly before the jury as a trier of fact. The
court properly instructed the jury on this point, and the
presumption is that the jury followed the proper instructions
of the court in reaching its determination. Staggers v. United
States Fidelity & Guaranty Co. (1972), 159 Mont. 254, 496 P.2d

Issue no. 8.
With respect to the settlement by Burlington Northern
with the plaintiff, the District Court advised the jury as
follows:
"You are advised that the Burlington Northern
Railroad was a Defendant in this case and
that the Plaintiff settled with the Burlington
Northern before this case came to trial on
November 14, 1978. You are to decide the
issues presented to you in this case without
regard to that, and you shall award the plaintiff
those damages, if any, he is entitled to according
to the instructions and proof in this case."
Wollaston objects that the statement given by the
District Court did not include his proposal for a statement
that would have told the jury "if you find for the plaintiff
in this case, and determine damages against Sanders County,
the court shall reduce those damages by the amount provided
in the agreement between the plaintiff and the Burlington
Northern railroad." In Bohrer v. Clark (1978), - Mont .
, 590 P.2d 117, 125, 35 St.Rep. 1878, we held that
whether to reveal to the jury the terms of settlement and
the fact that the court will make a deduction of the settlement
from any eventual award were matters that should be left to
 the discretion of the trial court. We also held that the
trial court's decision would not be disturbed unless it
clearly appeared that a fair trial had been jeopardized. In
this case, the statement on its face is fair and it cannot
logically be claimed that the statement as given jeopardized
Wollaston's fair trial. The presumption is, as we have said
above, that the jury followed the instructions of the court.
Staggers, supra.
CONCLUSION
Since we find no reversible error, the judgment of the
District Court is affirmed.

Justice
We Concur:

/ I.'
Justices