No. 79-94 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

ANDREW J. STENBERG, 

Plaintiff and Appellant, 

VS . 

TODD WILLIAM NEEL, 

Defendant and Respondent. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula. 

Honorable John Henson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Goldman and Goldman, Missoula, Montana 

Jon Oldenburg argued, Missoula, Montana 

For Respondent: 

Garlington, Lohn and Robinson, Missoula, Montana 

Candace Fetcher argued and Gary Graham argued, 

Missoula, Montana 

Submitted: May 29, 1980 

Decided: July 14, 1980 J()L 14 19% 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Plaintiff brought this action to recover damages for 

personal injuries sustained in an automobile accident. Plaintiff 

appeals from a judgment on jury verdict and the denial of a 

motion for a new trial. 

This action arose out of an April 14, 1975, traffic 

accident at the intersection of North Orange Street and 

West Broadway in Missoula, Montana. Stenberg, the plaintiff 

and appellant, was a policeman operating a police patrol car 

at the time of the accident. 

Prior to the accident Stenberg had been writing a parking ticket at a location south of where the collision occurred. 

At that time he received a call informing him of a disturbance 

at a local secondhand store. During trial the plaintiff 

described what happened next, as follows: 

"When I received the call, I left the area of 

Second and Hickory and I turned on my pursuit 

lights and my overhead lights and my siren. I 

turned northbound on Orange Street off of Second 

Street and proceeded across the bridge. The 

traffic was quite heavy during the lunch hour and 

I was pretty much in the flow of traffic going 

across the bridge. I got to the north end of the 

Orange Street bridge and the traffic was heavy 

at all the intersections and on the streets, so I 

had to go on across the centerline to get into 

the intersection. I entered the intersection, the 

light was red but all the vehicles were stopped. I 

got about half-way through the next block, traffic 

was stopped at the intersection and again I had 

to go to the left because of the cars that were 

stopped. At the intersection I entered the intersection and that's when 1 was involved in the 

accident." 

Neel, the defendant, was driving his automobile east on 

Broadway when the accident occurred. He had the green light 

in his favor. His testimony indicates that he did not hear 

the siren or see the emergency lights on the patrol car. 

Other eyewitnesses gave conflicting testimony as to the 
audibility and visibility of the patrol car's emergency 

equipment. As the Nee1 automobile entered the intersection 

it was hit midway on the passenger side by the front of the 

patrol car. As a result of the accident Stenberg suffered a 

pinched nerve in the neck. This has resulted in severe, 

incapacitating, intermittent pain. 

Stenberg brought this suit to recover his damages arising 

from the accident. The jury returned a verdict in defendant's 

favor . 

Stenberg raises four issues on appeal: 

1. Whether the District Court erred in instructing the 

jury on the standard of care applicable to the plaintiff? 

2. Whether the District Court erred in instructing the 

jury to apply the law of contributory negligence rather than 

the law of comparative negligence? 

3. Whether the District Court erred in refusing to give 

two of plaintiff's proposed instructions? 

4. Whether the District Court erred in not granting the 

plaintiff's motion for a new trial? 

Stenberg contends that the trial court erred by giving 

court's instruction no. 15 which instructed the jury as to 

standard of care applicable to both parties. This instruction 

reads : 

"The legal standard of care governing the conduct 

of motor vehicle operators is unvarying, and rests 

alike upon all drivers at all times. The standard 

---- of care is the conduct -- of an ordinarily prudent 

person ---- in the same or similar circumstances; in 

other words, ordinary care. Ordinary care, as the 

term is used in these instructions means that degree 

of care which a reasonable prudent person would use -- - -- - 

- or exercise unaer --- the same or similar circumstances, 

in relation to the same or similar matters to avoid 

injury, and it implies the use of such care as is 

fairly commensurate with the danger to be avoided 

when measured by the standards of common prudence 

and experience. 
"And, generally speaking, negligence is, therefore, 

- the want - of ordinary care, the failure to do what -- a reasonable and prudent person would ordinarily 

have done under - the circumstances of -- the situation, 

or the doing what such a person under the existing 

circumstances would not have done. 

"Negligence may also consist in the doing of some 

act which the law forbids, or in the failure to do 

that which the law commands. 

"In this action any negligence is of no consequence 

unless it was a proximate cause of the injuries and 

damages complained by the plaintiff ." (Emphasis 

added. ) 

Stenberg contends that the instruction was incorrect, 

because of certain language which appears in section 61-8-107, 

MCA. This statute grants certain privileges to the operators 

of authorized emergency vehicles. Section 61-8-107, MCA, was 

set forth in substantial part in the court's instruction no. 

16. The instruction reads in part: 

"(b) The driver of an authorized emergency vehicle 

may : 

"1. Park or stand, irrespective of the provisions 

of this act; 

"2. Proceed past a red or stop signal or stop sign, 

but only after slowing down as may be necessary for 

safe operation; 

"3. Exceed the speed limits so long as he does not 

endanger life or property; 

"4. Disregard regulations governing direction of 

movement or turning in specified directions. 

"(c) The exemptions herein granted to an authorized 

emergency vehicle shall apply only when such vehicle 

is making use of audible and visual signals meeting 

the requirements of 532-21-132, except that an 

authorized emergency vehicle operated as a police 

vehicle need not be equipped with or display a red 

light visible from in front of the vehicle. 

"(d) The foregoing provisions shall not relieve 

the driver of an authorized emergency vehicle from 

the -- duty to drive with -- due regard for the safety of 

all Persons, nor shall such provisions protect the 

driver from. the consequences- of his reckless disregard for the safety of others." (Emphasis added.) 

Stenberg contends that the statute relieves the driver 

of an authorized emergency vehicle from the duty of exercising 
ordinary care, and, instead, imposes a lesser duty. 

Therefore, Stenberg argues, instruction no. 15 constituted 

reversible error, because it imposes a duty of ordinary care 

upon both parties. 

Section 61-8-107, MCA, has not been construed by this 

Court. Other jurisdictions have, however, had occasion to 

construe and apply nearly identical statutes. Schatz v. 

Cutler (D. Vt1975), 395 F.Supp. 271. Shawnee T.P. Fire 

Dist. No. 1 v. Morgan (1977), 221 Kan. 271, 559 P.2d 1141. 

In Shawnee the court was faced with a factual situation 

very much like that presented by the instant case. The court 

had to determine the duty imposed by a Kansas statute which 

is identical to section 61-8-107(4), MCA, in all material 

respects. The court said: 

"Even though the use of the word 'reckless' suggests 

an element of wantonness, we believe --- it was the 

intent of -- the legislature to charge - the driver of 

- an emergency vehicle with --- due care under the exsting facts and circumstances. The facts and circumstances 

include the privileges and immunities granted by 

statute. ----- The test for due care (or due regard as 

used in the statute), - as applied -- to the driver of 

- 

an emergency vehicle, is whether with -- the privileges 

and immunities providedby statute he acted as a -- 

reasonably careful driver." 559 P.2d at 1147. - 

(Emphasis added.) 

We agree. The driver of an authorized emergency vehicle 

is charged with a duty of due care under the circumstances, 

and the circumstances include the privileges granted by 

section 61-8-107(2), MCA. In the present case, instruction 

no. 15 stated, in essence, that all drivers must use ordinary 

care under the circumstances. Instruction no. 16 gave the 

privileges provided to Stenberg under the terms of section 

61-8-107. Consequently, the instructions correctly presented 

the law to the jury. The statute may well have been intended 

to protect the driver of an emergency vehicle, but it does 

-5- 
not relieve him of exercising ordinary care. No error 

was committed by giving instruction no. 15. 

Stenberg next contends that the District Court erred 

in instructing the jury to apply the law of contributory 

negligence rather than the law of comparative negligence. 

Section 27-1-702, MCA, sets forth Montana's law of 

comparative negligence. The effective date of this statute 

was July 1, 1975, although it was passed by the legislature 

on March 17, 1975. Section 1-2-201(1), MCA, provides that 

"Every statute, unless a different time is prescribed therein, 

takes effect on the first day of July following its passage 

and approval." A different time is not prescribed by section 

27-1-702, MCA. 

In Dunham v. Southside National Bank of Missoula (1976), 

L3 g.3 169 Mont. 466, 548 P.2d M, this Court affirmed a District 

Court's grant of summary judgment in defendant's favor. The 

holding was based on the defendant's lack of duty to the 

plaintiff. This Court went on, however, to consider whether 

the new comparative negligence statute was to be retroactively 

applied. This Court said: 

"The order of the district court granting summary 

judqment is affirmed, as is the district court's 

conclusion that the Montana comparative negligence 

law - - - . . Section .- - - - - 58-607.1. ~. R.C.M. 1947 [now 527-1-702, m] , shall not apply ---- to a cause of action arising 

prior to July 1, 1975." 169 Mont. at 475-76. ----- (Emphasis added. ) 

These observations from the Dunham case control the 

present case. The District Court did not err in instructing 

the jury to apply the law of contributory negligence rather 

than the law of comparative negligence. 

Stenberg next contends that the trial court erred in 

refusing to grant plaintiff's proposed instruction no. 12. 

This instruction read, "You are instructed that when interpreting 

-6- 
statutes particular expressions qualify those which are 

general." This was taken from section 1-3-225, MCA. According 

to plaintiff's contention, the instruction was necessary in 

order that the jury could properly interpret the court's 

instructions no. 16 and no. 18, which were both taken from 

two other Montana statutes. 

Section 26-1-201, MCA, states that all questions of law, 

including the construction of statutes, are to be decided by 

the court. Section 26-1-202, MCA, states that questions of 

fact are to be decided by the jury, where the trial is by 

jury. Consequently, it was not the jury's function to interpret 

any statutes, and it was not error to refuse plaintiff's 

proposed instruction no. 12. 

Stenberg also contends that the trial court erred in 

refusing to grant plaintiff's proposed instruction no. 22. 

This proposed instruction stated: 

"You are instructed ----- if you find for the Plaintiff 

-- on the question of liability you may then consider 

what damages, ifany, the Plaintiff has sustained 

in relation to the enjoyment of hobbies; to what 

extent, if any his said injuries disabled the 

Plaintiff and prevented him from engaging in his 

usual hobbies such as fishing, playing baseball, 

hunting, and any other recreational activities." 

(Emphasis added. ) 

The failure to give this instruction does not constitute 

reversible error. "Reversible error is error materially 

affecting the substantial rights of the aggrieved party. 

Rule 14, M.R.App.Civ.P," Ehni v. N.P. and White Pine Co. 

(1969), 152 Mont. 373, 381, 450 P.2d 882. In the present case 

the jury found in favor of the defendant. The jury did not 

reach the issue of damages. Consequently, no reversible error 

can be predicated on damage instructions. 

Stenberg's final contention is that the District Court 

erred in denying his motion for a new trial. In addition to 
the issues which have been discussed above, Stenberg 

alleged in his motion for new trial that there was insufficient evidence to support a determination by the jury that 

he was contributorily negligent. 

Rule 59, M.R.Civ.P. permits the trial judge to order a 

new trial pursuant to motion. This is a matter within the 

trial court's discretion if there is an insufficiency of 

evidence to support a jury verdict. Campeau v. Lewis (1965), 

144 Mont. 543, 547, 398 P.2d 960. However, a new trial may 

not be granted by the trial court when there is substantial 

evidence to support the verdict. "The court's discretion 

is exhausted when it finds substantial evidence in the 

record to support the verdict." Hinton v. Peterson (1946), 

118 Mont. 574, 578, 169 P.2d 333. 

In the present case, various witnesses estimated that 

Stenberg ' s speed immediately prior to the accident was between 

25 miles per hour and 50 miles per hour. There is no dispute 

that the intersection was busy, that Stenberg had to drive 

the police car across the centerline to get into the intersection, and that Stenberg entered the intersection against 

a red light. While these actions are authorized for drivers 

of authorized emergency vehicles by section 61-8-107, MCA, 

Stenberg was still required to exercise ". . . due regard 

for the safety of all persons . . ." There was sufficient 

evidence from which a jury could find that Stenberg failed to 

exercise the required standard of care. The trial court did 

not abuse its discretion in denying the motion for a new trial. 

Af f irmed. 

Chief Justice 
We Concur: 

Justices