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: District Court of the Eleventh Judicial District, 

In and for the County of Flathead. 

Honorable James Salansky, Judge presiding. 

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: ,fUL 9 - 1981 

Clerk 
Mr. Chief Justice Frank I. Haswell delivering the Opinion of 

the Court. 

In an action by plaintiff for damages resulting from 

personal injuries suffered when thrown from a horse, the jury 

returned a verdict for defendant and judgment was entered 

thereon. Following denial of his post-trial motions, plaintiff 

appeals from the judgment and denial of his motion for a new 

trial. 

The accident in question occurred about 1:00 p.m. on May 

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 cattle were 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-degree bank abutting the roadway and not separated 

from it by a ditch. The road at the accident scene was wide 

enough for two cars to pass. 

Defendant Jack Dollan was driving his 1973 station wagon 

northerly in the same direction as the herd and approaching it 

from the rear. Heidegger and Hallstrom were 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 automobile was 

traveling through the herd and started working his horse over 

to the east side of the road. Defendant testified that he was 

traveling in low gear at a speed of 3 or 4 miles an hour trying 

to get around a cow that was zigzagging back and forth in front 
of 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 it met 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 on March 17 to 19, 1980, in 

the District Court of Flathead County. The jury returned a 

verdict for defendant. 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 as we find contributory 

negligence on the part of the plaintiff." 

Judgment was entered on the jury verdict. Plaintiff moved 

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 was 
the giving of a jury instruction on contributory negligence 

and the insufficiency of the evidence to support the verdict. 

Following the District Court's denial of his motions, plaintiff 

appeals from the judgment and denial of his motions 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 instruction no. 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 that plaintiff moved his horse to the far right of the 

roadway when he observed defendant's vehicle approaching; that 

he could not move 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 struck plaintiff's 

horse; and that the roadway was sufficiently wide to permit two 

cars to pass. 

We disagree. A review of the evidence supports at the 

least an inference that plaintiff 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 assistance was 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 defendant by 
its verdict. We hold the evidence sufficient to support the 

verdict and the judgment entered thereon. 

Appellant further contends it was reversible error to 

give defendant's proposed instruction no. 3, reading as follows: 

"Contributory negligence is negligence on the 

part of a claimant which contributed as a proximate cause to his injury. (A person who is 

contributorily negligent cannot recover for any 

injury or damage sustained by him.)" 

This instruction is MJIG instruction no. 4 verbatim. No 

objections were made to the form or language of the instruction. 

The ground of the objection was "that there is no credible 

evidence in the record whatsoever indicating any negligence 

whatever on the part of the plaintiff Dave ~aatki in the management of his horse." On settlement of instructions, the district 

judge indicated he was giving the instruction because 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, there was 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 instructions all relate to the issue of defendant's 

negligence. Since the jury based its verdi.ct on plaintiff's 

contributory negligence, the failure to give these instructions 

could not have affected the verdict. Assuming, arguendo, that 

failure to give these instructions was error, the error was 

harmless in any event as it could not prejudice 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 Justice 
We Concur: 

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