No. 80-312 IN THE SUPREMF:COURT OF THE STATE OF MONTANA 1981

DAVID R. WAATTI, Plaintiff and Appellant,

VS

# . JACK M. DOLLAN, Defendant and Respondent.

Appeal from: DistrictCourt of the Eleventh Judicial District, In and for the County of Flathead. Honorable James Salansky,Judgepresiding. Counsel of Record: For Appellant: Hash, Jellison,O'Brien and Bartlett, Kalispell, Montana For Respondent: Murphy, Robinson,Heckathorn & Phillips,Kalispell, Montana

Submitted on briefs: May 15, 1981 Decided: July 9,1981 Filed: 

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# - 1981

ClerkMr. Chief Justice Frank I. Haswell delivering the Opinion of the Court.

In an actionby plaintiff for damages resulting from personal injuries suffered when thrown from a horse, the jury returned a verdict for defendant and judgmentwas entered thereon. Following denial of his post-trialmotions,plaintiff appeals from the judgment and denial of his motion for a new trial. The accident in question occurred about 1:00 p.m. onMay 31, 1975, on the Hubbard Dam road southwest of Kalispell, Montana. Plaintiff David Waatti was helping herd about 200 head of cattle from a ranch near Lonepine to a summer pasture near Bitterroot Lake. The cattlewere being driven in a northerly direction by several riders including Paul Heidegger, the owner of the cattle;Willard Hallstrom; and plaintiff Waatti. The accident occurred on a stretch of road bounded on the east by

a high 45-degreebank abutting the roadway and not separated from it by a ditch. The road at the accident scenewas wide enough for two cars to pass. DefendantJack Dollanwas driving his 1973 station wagon northerly in the same direction as the herd and approaching it from the rear. Heidegger and Hallstromwere working the back of the herd and plaintiff the front. Heidegger led Dollan's automobile through the herd until they reached a point where only 10 or 12 cows were in front of them. At this point, Heidegger returned to the rear of the herd. Plaintiff was aware that defendant's automobilewas traveling through the herd and started working his horse over to the east side of the road. Defendant testified that hewas traveling in lowgear at a speed of 3 or 

### 4miles an hour trying to get around a cow that was zigzaggingback and forth in frontof him. The right front of the car struck the horse plaintiff

was riding causing it to lunge onto the steep bank abutting the roadway. The horse was having difficulty getting its footing, made another lunge and plaintiff wasthrown backwards off the horse striking either the ground or defendant's automobile. Plaintiff testified that at the time of impact between the car and his horse, he was right next to the bank where itmet the roadway. After throwing plaintiff off, the horse scaled the bank, returned to the road and proceeded southerly through the herd. As a result of the accident,plaintiff received a broken shoulder,cracked ribs and other injuries. Plaintiff sued defendant for damages resulting from his injuries, alleging negligence on the part of defendant Dollan. Defendant denied negligence and proximate cause and affirmatively alleged contributory negligence by plaintiff Waatti. The accident occurred prior to enactment of Montana's comparative negligence statute. The case was tried to a jury onMarch 17 to 19, 1980, in the District Court of Flathead County. The jury returned a verdict fordefendant. In addition to finding a verdict in favor of defendant and against plaintiff on the typed verdict form, the jury included the following statement in the handwriting of and signed by the jury foreman on the bottom of the typewritten verdict form: "We,the Jury in the above-entitled action, find in favor of the defendant aswe find contributory negligence on the part of theplaintiff." Judgmentwas entered on the jury verdict. Plaintiffmoved for judgment notwithstanding the verdict on the issue of liability and a new trial on the issue of damages,or alternatively for a new trial on all issues. The basis of the motions wasthe giving of a jury instructionon contributory negligence and the insufficiencyof the evidence to support the verdict. Following the District Court's denial of his motions, plaintiff appeals from the judgment and denial of hismotions for a new trial. Plaintiff and appellant assigns the following issues for review on appeal: 1. Sufficiency of the evidence to support the verdict. 2. Giving defendant's proposed instructionno. 3. 3. Refusal to give plaintiff's proposed instruction

nos. 6, 9,and 11. Appellant's principal contention is that there is no evidence to support the jury verdict finding contributory negligence by defendant. He argues that the testimony conclusively establishes an absence of contributory negligence in thatplaintiff moved his horse to the far right of the roadway when he observed defendant's vehicle approaching; that he could notmove his horse farther because of the steep bank abutting the road; that defendant's car was two to three feet from the bank when its right front bumper struckplaintiff's horse; and that the roadwaywas sufficientlywide to permit two cars to pass. We disagree. A review of the evidence supports at the least an inference thatplaintiff and appellant was contributorily negligent in failing to keep his horse under proper control and in failing to assist defendant's car through the remainder of the herd after Heidegger's assistancewas discontinued. The testimony of Heidegger and plaintiff himself establish these permissible inferences creating a factual issue on contributory negligence which the jury resolved in favor of the defendantbyits verdict. We hold the evidence sufficient to support the verdict and the judgment entered thereon. Appellant further contends itwas reversible error to give defendant'sproposed instructionno. 3,reading as follows: "Contributory negligence isnegligence on the part of a claimantwhich contributed as a proximate cause to his injury. (Aperson who is contributorily negligent cannot recover for any injury or damage sustained by him.)" This instruction isMJIG instructionno. 4verbatim. No objections were made to the formor language of the instruction. The ground of the objectionwas "that there is no credible evidence in the record whatsoever indicating any negligence whatever on thepart of the plaintiff Dave~aatki in themanagement of his horse." On settlementof instructions, thedistrict judge indicated he was giving the instructionbecause he thought "there is still a jury question here." We agree there was a jury question under the evidence in the case for the reasons heretofore stated. Accordingly, therewas no error in giving this instruction on contributory negligence and its effect. Plaintiff and appellant assigns error in the District Court's failure to give his proposed instruction nos. 6, 9, and 11. These instructionsall relate to the issue of defendant's negligence. Since the jury based itsverdi.cton plaintiff's contributory negligence, the failure to give these instructions could not have affected the verdict. Assuming, arguendo, that failure to give these instructionswas error, the error was harmless in any event as it could notprejudice any substantial right of plaintiff and appellant. Rule 61,M.R.Civ.P.; Payne



### v. Sorenson (1979), 

### -Mont

# . ,599 P.2d 362, 36 St.Rep. 1610. Affirmed.

Chief JusticeWe Concur:,/P ..*,