NO. 87-499


### IN THE SUPREME COURT OF THE STATEOF MONTANA
1988

DONALDAND LOIS STOUT,husband andwife, andMAXAND MARIE McGRANN,husband and wife, Plaintiffsand Respondents,-vsTHEMONTANA POWER COMPANY, aMontana corporation,
Defendantand Appellant.

APPEAL FROM: District Court of the Tenth Judicial District, Inand for the County of Fergus, The Honorable Byron Robb, Judgepresiding.
COUNSELOF RECORD:
ForAppellant: Patrick T. Fleming, Butte,Montana
For Respondent:
R. Keith Strong; Church, Harris, Johnson & Williams, GreatFalls,Montana JohnR. Christensen, Stanford,Montana

Submitted onBriefs: July 21, 1988 Decided:October 17, 1988



# . ClerkMr. Justice William 

### E. Hunt, Sr., delivered the Opinion of the Court.

The Montana Power Company, defendant, appeals the jury verdict and decision of the District Court of the Tenth JudicialDistrict, Fergus County,denying defendant's motions for a directedverdict and fora judgmentnotwithstanding the juryverdict. We affirm. Montana Power Company raises the following three issues

on appeal: 1. Whether the District Court erred by denying defendant's motion for a directed verdict after the close of plaintiffs' cases. 2. Whether substantial evidence exists to support the jury verdict, finding defendant negligent in constructing, maintaining and inspecting the power equipment and service lines connected to Stouts'building. 3. Whether the District Court erred by denying defendant's motion for judgment notwithstanding the jury verdict. Donald and Lois Stout owned a building in Coffee Creek, Montana. They leased part of the building to Max and Marie McGrann, who used a portion of the building as a residence and another portion to operate their meat cutting business. Stoutsreserved aportion of thebuilding to use as a storage facility and post office. Montana Power Company owned the power equipment and service lines that delivered electricity to Stouts'building. On April 2, 1985, a fire completely destroyed Stouts' building and its contents. Stouts filed a lawsuit onJune 4, 1985 in the District Court of the Tenth Judicial District, Fergus County, alleging that defendant. failed to performproperly its duty of inspecting and maintaining its power equipment and service lines connected to their building in Coffee Creek and that the failure proximately caused the fire that destroyed their building, causing them financial loss. Shortly thereafter, McGranns filed a similar lawsuit in the

same action. The District Court consolidated Stouts' and McGranns' lawsuits for trial. The parties tried the lawsuits before a jury beginning September 28, 1987and continuing throughOctober 1,1987,at which time Stouts and McGranns rested. Defendantmoved for a motion for a directed verdict as to its alleged negligence. The District Court found that sufficient facts existed to permit the cases to go to the jury and denied the motion. Defendant rested without presenting any additional evidence. The jury returned a verdict on October 1, 1987 finding defendant negligent in constructing, maintaining and inspectingthe power equipmentand service lines connected to Stouts' building. On October 8, 1987,defendantmoved for a judgment in its favor notwithstanding the verdict. The District Court denied the motion and defendant then appealed to this Court. The first issue presented to this Court iswhether the District Court erred by denying defendant's motion for a directedverdict after the close ofplaintiffs' cases. The District Court, as well as this Court, must view a motion for a directed verdict in a light most favorable to the nonmoving party. Britton v. Farmers Insurance Group

(Mont. 1986), 721P.2d 303, 317, 43 St.Rep. 641, 656;Jacques

v. Montana Nat'l Guard (1982),199 Mont. 493, 504, 649 P.2d 1319, 1325;Weber v. Blue Cross ofMontana (19821,196Mont. 454, 462, 643P.2d 198, 202. Themotion is properly granted only if no evidence exists that would warrant submission to the jury. A directed verdict is not proper, therefore, whenthe inferences and conclusions drawn from the evidence presented coulddiffer among reasonablepeople. Britton, 721 P.2d at 317, 43 St.Rep. at 656;Jacques, 199Mont. at 504-05, 649 P.2d at 1325; Weber, 196 Mont. at 462-63, 643 P.2d at 202. The District Court found that sufficient evidence existed that was within the province of the jury. We agree. At the trial level, the primary issue presented was whether defendantwas negligent inmaintaining and inspecting the power equipment and service lines connected to Stouts' building. In denying the motion for a directed verdict, the DistrictCourt relied on Professor Bernstein's expert opinion

as to the cause of the fire; Marie McGrann's testimony that

on the day of the fire she saw a loosewire; and photographs of other service lines in the Coffee Creek area that are maintained by defendant. As the District Court properly noted, a jury was impaneled and when geniune questions of facts exist it is the jury's function to determine the facts. In this case, the jury was the proper body to determine the weight of Professor Bernstein's expert opinion; Marie McGrann's testimony; and the photographs of other service lines in the Coffee Creek area that appeared poorly maintained. The inferences and conclusions drawn from this evidence could differ among reasonablepeople, as evident by the jury's inferences and conclusions, which resulted in a verdict for StoutsandMcGranns,versus defendant's assertion that no evidence whatsoever exists that would establish negligence on theirpart. When requested to direct a verdict, a court must exercise the "greatest self-restraint in interferingwith the constitutionally mandated processes of jury decision. The message is to do so only in the clearest of cases. 

# .

# .." Jacques, 199 Mont. at 504, 649 P.2d at 1325 (quoting Karczewski 

### v. Ford Motor Co. (N.D. Ind. 19741, 382 F.Supp.1346, 1348, aff'd, 515 F.2d 511 (7th Cir. 1975)). After viewing the motion in a light most favorable to Stouts and McGranns, we affirm the District Court's finding that sufficient evidence existed to deny defendant's motion for a directed verdict after the close ofplaintiffs' cases. The second issue raised on appeal is whether substantial evidence exists to support the jury verdict finding defendant negligent in constructing, maintaining and inspecting the power equipment and service lines connected to Stouts' building. When presented with this issue, the law requires this Court to review the evidence in a light most favorable to the prevailing party. Wheeler v. City of Bozeman (Mont. 1988)

### , 757 P.2d 345, 347, 45 St.Rep. 1173, 1176; Kukuchkav. Ziemet (Mont. 1985), 710 P.2d 1361, 1363, 42 St.Rep. 1916, 1917; Gunnelsv. Hoyt (Mont.1981), 633P.2d 1187, 1191, 38 St.Rep. 1492, 1495. The evidence may be inherently weak and still he considered substantial. Wheeler, 757 P.2d at 347, 45 St.Rep. at 1176; Gunnels, 633P.2d at 1191, 38 St.Rep. at 1495. The record shows that Max and Marie McGrann testified that just prior to the fire their lights were flickering and their radio was making static. Lois Stout also testified that the lightswere flickering justbefore the fire started. Marlin Jegtvig, who hauls away meat by-products from McGranns' business once a week testified that on the day of the fire he made his routine stop atMcGranns' and witnessed arcing, a sustained luminous discharge of electricity across


### a gap, within the joints of the tin siding of the building. He informed Max and Marie McGrann, who both testified that they also observed the arcing. Marie McGrann then testified that she promptly called Montana Power Company so as to have the power turned off and that she had also noticed a loose swinging wire when she observed the arcing. Ron Brinkman, amember of the Coffee Creek Volunteer Fire Department, testified that he also observed a loosewire on the top roof knob, after Dick Ronish, another person at the scene of the fire,pointed it out tohim. The record also shows that Theodore Bernstein, a professor of electrical and computer engineering and who is frequently called to assess the cause of a fire, testified that after reading statements and depositions from people at the fire, studying photographs of Montana Power Company's service lines in the Coffee Creek area shortly after the fire, photographs of the equipment thatwas removed from the fire, and photographs of the fire scene, that in his expert opinion the firebegan when the upper roof knobpulled loose from the building and swung into the tin siding. He further testified that every time the roof knob would hit the tin siding the electricity would go from the pole to the siding via the wire and roof knob, and then to the ground. He testified that the temperature of the arcs range from two to four thousand degrees, or even higher. The fire ignited, in his opinion, when the electricity would cross over flammable materials in the building, such as wooden slats or beams. Defendant argues that Professor Bernstein's opinion regarding the cause of the firewaswrongbecause his opinion

wasbased on a roofknob coming loose,and Ronald Brinkman,a volunteer firemanat the sceneof the fire,testified that he did not see any loose roof knobs. Professor Bernstein also testified, however, that a roof knob from Stouts' building had signs of arcing, which would only occur if the knob had swung loose and hit the tin siding. When conflicting evidence exist, the credibility and weight given to the conflictingevidence is within the jury'sprovince. Wheeler, 757 P.2d at 347, 45 St.Rep. at 1176; Mountain West Farm Bureau Mutual Insurance Co. 

### v. Girton (Mont. 1985)

### , 697 P.2d1362,1363, 42 St.Rep. 500, 501. This Courtwill not reweigh conflicting evidence on appeal. We therefore hold that substantial evidence existed to support the jury verdict. The last issue raised on appeal iswhether the District Court erred by denying defendant's motion for judgment notwithstandingthe jury verdict. This motion, like a motion for a directed verdict, is properly granted only when no evidence exists to support a juryverdict. Wilkersonv. SchoolDist. No. 15,GlacierCty. (Mont. 1985), 700 P.2d 617, 622, 42 St.Rep. 745, 750-51. Gunlock v. Western Equipment Co. (Mont. 1985), 710 P.2d 714, 716, 42 St.Rep. 1882, 1884-85. In light of our previous discussion,we hold that the District Court properly denied defendant's motion for a judgment notwithstanding the verdict. Affirmed. n

We Concur: