### 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

# 1419%Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court.

Plaintiff brought this action torecover 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 atthe intersection of North Orange Street and WestBroadway inMissoula, Montana. Stenberg, the plaintiff and appellant, was a policeman operating a police patrol car atthe 

### timeof the accident. Prior tothe accident Stenberg had been writing a parking ticket ata location south of where the collision occurred. Atthat 

### timehe received a call informing him of a disturbance ata local secondhand store. During trial the plaintiff described what happened next, as follows: "When I received the call, I leftthe 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

### wasquiteheavy during the lunch hour and I was pretty much inthe flow of traffic going across the bridge. I got to the north end of the Orange Streetbridge and the trafficwas heavy atall the intersections and on 

### the streets, so I had togo on across the centerline to get into the intersection. I entered the intersection, the lightwas red but allthe vehicles 

### were stopped. I got about half-way through the next block, traffic was stopped atthe intersection and again I had togo tothe leftbecause of the cars that

### were stopped. Atthe 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. Hehad the green light inhis favor. His testimony indicates that he did not hear the siren or see the emergency lights on thepatrol car. Other eyewitnesses gave conflicting testimony as totheaudibility and visibility of the patrol car's emergency equipment. As the Nee1 automobile entered the intersection 

### it was hitmidway on thepassenger sideby the front of the patrol car. As a result of the accident Stenberg suffered a pinched nerve inthe neck. This has resulted in severe, incapacitating, intermittentpain. Stenberg brought this suittorecover his damages arising from the accident. The jury returned a verdict indefendant's favor

# . Stenberg 

### raises four issues on appeal: 1. Whether the DistrictCourt erred in instructing the jury on the standard of care applicable to the plaintiff? 2. Whether the District Court erred in instructing the jury toapply the law of contributory negligence rather than the law of comparative negligence? 3. Whether the DistrictCourt erred inrefusing to give two of plaintiff's proposed instructions? 4. Whether the DistrictCourt erred innot granting the plaintiff's motion for a new trial? Stenberg contends that the trial court erred by giving court's instruction no. 15which instructed the jury as to standard of care applicable toboth parties. This instruction reads: "The legal standard of care governing the conduct of motor vehicle operators isunvarying, and 

### rests alike upon alldrivers at

### all 

### times. The standard of care 

### is the conduct of an ordinarily prudent 

### ---- 

### -- person inthe same or similar circumstances; in 

### ---- other words, ordinary care. Ordinary care, as the 

### termisused in these instructionsmeans that degree of carewhich a reasonable prudent person would use 

### -- 

### - -- - or exercise unaer the same or 

### similarcircumstances, - 

## --- inrelation tothe same or similarmatters toavoid injury, and it implies the use of such care as is fairly commensurate with the danger tobe avoided when measured by the standards of common prudence and experience."And, generally speaking, negligence is, therefore, the want of ordinary care, the failure todo 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 inthe doing of some actwhich the law forbids, or inthe failure todo thatwhich 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 instructionwas 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 forthinsubstantialpart inthe court's instruction no. 16. The instruction reads inpart: "(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 safeoperation; "3. Exceed the speed 

### limits so long ashe does not endanger lifeor property; "4. Disregard regulations governing direction of movement orturning in specified directions. "(c) The exemptions herein granted toan authorized emergency vehicle shall apply only when such vehicle ismaking 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 infront of the vehicle. "(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the 

### -- duty to drivewith 

## -- due regard for the safety of allPersons, 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 statuterelieves the driver of an authorized emergency vehicle from the duty of exercisingordinary 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. 1v. Morgan (1977), 221 Kan. 271, 559 P.2d 1141. 

### In Shawnee the courtwas faced with a factual situation very much like thatpresented by the instant case. The court had to determine the duty imposed by a Kansas statutewhich 

### is identical to section 61-8-107(4), MCA, in allmaterial 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 exst

### - 

## --- ing facts and circumstances. The facts and circumstances include theprivileges and immunities granted by statute. The 

### test for due care (ordue regard as 

## ----- used inthe statute), 

### - as applied 

### -- tothe driver of an emergency vehicle, 

### iswhether with the privileges - 

### -- and immunities providedby statutehe 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, inessence, that alldrivers 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 tothejury. The statutemay 

### wellhave been intended toprotect 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 ininstructing the jury to apply the law of contributory negligence rather than the law of comparative negligence. Section 27-1-702, MCA, 

### sets forthMontana'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 

### isprescribed therein, takes effect on the firstday 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), 

### L3g.3 169 Mont. 466, 548 P.2d M, thisCourt affirmed a District Court's grant of summary judgment indefendant's favor. The holding was based on the defendant's lack of duty tothe plaintiff. This Court went on, however, toconsider whether the new comparative negligence statutewas tobe retroactively applied. This Court said: "The order of the district court granting summary judqment 

### is affirmed, as 

### is the districtcourt's conclusion that the Montana comparative negligence lawSection 58-607.1. R.C.M. 1947 [now 527-1-702,

- -- . . .- - - - - 

## ~. 

# m], shallnot apply ---- to a cause of action arising prior toJuly 1, 1975." 169 Mont. at475-76. ----- (Emphasis added.) These observations from the Dunham case control the present case. The District Court did not err in instructing the jury toapply the law of contributory negligence rather than the law of comparative negligence. Stenberg next contends that the trialcourt erred in refusing togrant plaintiff's proposed instruction no. 12. This instruction read, "You are instructed thatwhen interpreting -6-statutesparticular expressions qualify those which 

### are general." This was taken from section 1-3-225, MCA. According toplaintiff's contention, the instructionwas necessary in order that the jury could properly interpret the court's instructions no. 16and no. 18, which were both taken from two otherMontana statutes. Section 26-1-201, MCA, states that allquestions of 

### law, including the construction of statutes, 

### are tobe decided by the court. Section 26-1-202, MCA, states that questions of fact aretobe decided by the jury, where the trial 

### is by jury. Consequently, 

### it was not the jury's function tointerpret any statutes, and 

### it was not error torefuse plaintiff's proposed instruction no. 12. Stenberg alsocontends that the trial court erred 

### in refusing togrant plaintiff's proposed instruction no. 22. This proposed instruction stated: "You 

### are instructed if you find for the Plaintiff 

### ----- on thequestion of liabilityyou may then consider 

### -- what damages, ifany, the Plaintiff has sustained inrelation tothe enjoyment of hobbies; towhat extent, if any his saidinjuries disabled the Plaintiff and prevented him from engaging inhis 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 errormaterially 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 thejury 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 indenying his motion for a new trial. In addition tothe issues which have been discussed above, Stenberg alleged inhis 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 trialjudge to order a

new trial pursuant tomotion. This is a matter within the trial court's discretion if there 

### is an insufficiency of evidence tosupport a jury verdict. Campeau v. Lewis (1965), 144Mont. 543, 547, 398 P.2d 960. However, a new trialmay 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 thepresent case, various witnesses estimated that Stenberg

### 's speed immediately prior to the accident

### was between 25 

### milesper hour and 50 miles per hour. There 

### is no dispute that the intersectionwas busy, that Stenberg had todrive the police car across the centerline to get into the intersection, and that Stenberg entered the intersection against

a red light. While these actions areauthorized for drivers of authorized emergency vehicles by section 61-8-107, MCA, Stenberg was 

### still required toexercise 

# ".



# . . due regard for the safety of allpersons 

# . . ." 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 indenying the motion for a new trial. Affirmed.

Chief Justice

### We Concur:

Justices