### No. 12376 INTHE 

### SUPRLWE COURT 

### OF THE 

### STATE OF MONTANA

DORIS HALSN, Administratrix of the Estate of Richard Halsey, Deceased, 

### et al., Plaintiffs and Respondents,

ALBERT H. 

### UITHOF, d/b/a GOLDEN 

### STATE TRANSPORT, Defendant and Appellant.

Appeal from: District Court of the Ninth JudicialDistrict, Honorable 

### R. D. 

### McPhillips, Judge presiding. Counsel of Record: For Appellant: 

### Jardine, Stephenson, Blewett and Weaver, Great Falls,

Montana Jack L. Lewis and John H. 

### Weaver argued, Great Falls,

Montana For ~espondents: Hoyt and Bottomly, Great Falls, Montana Richard V. 

### Bottomly appeared and John C. 

### Hoyt argued,

Great Falls, Montana

Submitted: November 15, 

### 1974 Decided: FE$ 

### r4

## ;:,Ts id -4 +Mr. Justice John Conway Harrison delivered the Opinion of the Court

# . In this action defendant Albert H. Uithof secured a jury verdict in his favor aftera nine day trial arising from

an automobile accident which occurred in Glacier County. Subsequently the district court of Glacier County granted plaintiffs

a new trial. From this order granting a new trial, defendant appeals.Suit was initiated by Richard Halsey, against one David McWhirk, driver of the truck that hit Halsey's truck, and Albert N. Uithof, owner of a truck stalled on the highway, torecover damages for injuries sustained asa consequence of a bizarre series of motor vehicle accidents. Prior to trial, Halsey died of his injuries; hiswidow was substituted asplaintiff. During the trial, plaintiff settledwith McWhirk for $100,000. the Here, due to/complexity and the volumes of factspresented, it is desirable to list the people involved and their position.: Anderson-------- Montana Highway Patrolman. Bryant---------- Passenger inMcWhirk truck. Byington-------- Driver of disabled Uithof truck. Halsey---------- Plaintiff and driver of second westbound truck topass the disabled truck. Harris---------- Truck driver who came upon disabled truck early in the morning. Hermance-------- Driver of firstwestbound truck topass disabled truck, just before the accident. McWhirk--------- Driver of eastbound truck involved in accident with Halsey. Uithof---------- Defendant and owner of disabled truck. Uphams---------- Man and wife who were in eastbound car rear ended by Walker vehicle. r&alkers--------- Man and wife and child invehicle which hit the Upham vehicle. Early in the morning December 22, 1970, 

### a loaded tank truck 

### owned by Uithof and driven by Byington, stalled some 804feet east and downhill from the top of Whiskey John hilllocated west of Browning, Montana. The weather was below zero, snow

was blowing over theroad into the ditches, there 

### were some ice spots on the stretchof road but for the most part the road was hare. After the truck stalled, Byington checked astowhy it stalled and found a broken clutch. He attempted torepair the clutchwithout success. Atabout 3:15 a.m. a fellowtrucker, Harris, stopped and tried unsuccessfully torepair theUithof truck. Harris offered totake Byington intoEast Glacier, Montana, the next town 

### west, but Byington stayed with the truck continuing totrytorepair it. Two hours later, atabout 5:00 a.m., he caught a ride intoEast Glacier with the firstvehicle going either direction after the Harris truck departed. AtEast Glacier he called a mechanic. When his truck stalled, Byington set out three reflectors towarn oncoming traffic. One reflector

was placed some 250 feet

### west and infront of the stalled truck. Hedid not put out red flagswhich he had ina kit inthe truck. The truck had previously been repaired atCut Bank, Montanra, so themechanic he calledwas atCut Bank, some 40 miles east of the stalled truck. That mechanic suggested he contact a mechanic inEast Glacier firstand thiscontact was made between thehours of 7:00 and 8:00 a.m. Atabout 8:00 a.m. Eyington and themechanic went out and attempted torepair the truck without

success. Byington then returned toEast Glacier where he again called themechanic inCut Bank atabout 9:45 a.m., requesting that he come out toservicethetruck. The mechanic leftCut Bank at10:OO a.m. and arrived inEast Glacier an hour later where he picked up Byington and took him back tothe stalled truck. After trying unsuccessfully torepair thetruck, they sentword intoBrowning, thenearest town, tocallthe highway patrol or the sheriff for assistance. By this timeof day, between 11:OO

### a.m. and 12:OO noon, the east-west traffic on the highway had begun to increase. Atabout 11:30 a.m. Eyington and the mechanic went into Browning where Byington contacted the citypolice and had them callHighway Patrolman Anderson, and atabout the same timehe again called Cut Bank toget a wrecker from the GetterTrucking Co., tocome and remove the stalled truck. Heremained in Browninguntil the wrecker from Cut Bank arrived atabout 1:30 p.m.; he then went back tothe truck only tofind that a series of accidents had occurred. Highway Patrolman Anderson who was stationed inEast Glacier, received a callnotifying him of the disabled truck at about 11:45 

### a.m. He arrived atthe truck location about 12:15 p.m. and tried todirect traffic for ten or fifteenminutes without too much success. Before leaving the scene he moved the reflector placed by Byington 

### west of the stalled truck, toa point on the hillcrestwhere he feltit would warn eastbound traffic. Neither Byington orAnderson put out any flags, although both the truck and the patrol car

### were equipped with them. Atabout 12:30 p.m. Anderson went into Browning, some three to four 

### mileseast of the stalled truck, toget assistance to flag traffic until the wrecker could arrive. During the next fifteentotwenty minutes the scene on the east slope of Whiskey John hillchanged. First, on the scene coming over the hillcrest from the west came the Upham car containing Mr. and Mrs. Donald Upham. They were driving a 1968 Rambler. They had started from East Glacier and prior to leaving had been informed by a son that there was a stalled truck on the road between there and Browning. They described the road conditions asgood, considering that 

### it was wintertime, and they drove 

### ata speed of from 55 to 60miles per hour, before coming totheLocation of the stalled truck. Upon coming over the crest of the hillthey saw the reflector placed by Anderson and slowed down toabout 25 miles per hour. When they got some 100 feet down from the crest of the hill, they saw a westbound truck driven by Hermance going around the stalled truck further down the hill, so they stopped in their lane, the eastbound lane, to letthe Hermance truck pass the stalled truck. Just atthat time, theWalker car came over the hill traveling east and ran into the rear end of the stopped Upham car. The Uphams saw theWalker 

### car, knew it 

### was going tohit thern, so they were able tobrace themselves and thereby avoided serious injury. Walker was returning from the

### west toBrowning with his wife and son. He testified he had been driving about 60milesper hour but that atthe crest of the hillhe saw the reflector and slowed down. Atabout the 

### timeof the rear end accident between the Upham car and theWalker car, the Hermance truck was abreast of the two cars and initsproper lane. It went tothe crest of the hill, stopped and, according tothe driver Hermance, he turned on his lights and blinkers and then tried to stopa truck driven by McWhirk which was coming over the crest of the hill eastbound atfrom 45 to 60 miles per hour. McWhirt denied that Hermance's warning lightswere on, but acknowledges that Hermance did wave athim. McWhirt's father-in-law Bryant, also a trucker, was a passenger inMcWhirt's truck. They saw the reflector as they passed over the crest of the hillbut said it was lying down on the highway. They observed both lanes of the highway blocked

so McWhirt attempted to go tothe north side of the highway and

use the borrow pit, but indoing so his trailer skidded into a third westbound truck driven by Halsey, which was the immediate

aause 

### of Halsey's injuries and resulting death.One other eastbound vehicle, referred to as the pickup with two young men in it, arrived either just before the McWhirtHalsey accident or just after, but except for helping out after the accident they were not involved. The issues assigned for this Court's consideration are several, but the primary issue is whether or not the trial court erred in entering an order granting a new trial. Other issues

are: 1. May a district court entertain and grant a motion for new trialwhen the motion fails to state "with particularity the grounds therefor" asrequired by Rule 7(b)(1),M.R.Civ.P.? 2. Should the defendant's motion for a directed verdict have been granted? 3. If any error or defect occurred attrial, was such

error or defect of a nature which affected the substantial rights of plaintiff so that thejury verdict in favor of defendant was inconsistent with substantialjustice? In other words, did the district court

## , ingranting new trial, fail adhere the requirements of Rule 61, M.R.Civ.P.? For the past several years this Court has been calling the attention of the bench and bar toits concern with the failure of trial courts to statereasons for the granting of new trials. Beebe v. Johnson, Mont

# . , 526 P.2d 128, 31 St.Rep. 702; Haynes 

### v. County of Missoula, 163Mont. 270, 517 P.2d 370, 30 St.Rep. 1083; Campeau v. Lewis, 144Mont. 543, 398 P.2d 960. Here, plaintiff's motion for a new trial was merely set forth in the conclusionary language of section 93-5603, R.C.M. 1947. That motion stated: "In the alternative, the plaintiff moves the court for an order vacating and setting aside the verdict of the jury and granting plaintiff a new trial inthe above-entitled cause upon the following grounds, to

### wit:"(1) Irregularities intheproceedings of the court, orders of the court and abuse of discretion on the part of the court by which plaintiffs were prevented from having a fairtrial. "(2) Insufficiency of the evidence tojustify the verdict or other decision, orthat it is against the law. "(3) Error in law occurring atthe trial and excepted toby the plaintiff.'' This wording is almost an exact reproduction of the wording of subsections 1, 6 and 7, section 93-5603, R.C.M. 1947, which details the causes for which a new trialmay be granted. Rule 7(b)

## , M.R.Civ.P. provides that such motions shall "statewith particularity the grounds therefor 

## * 

## * 

## *." Rule 59, M.R.Civ.P., provides for the granting of such a motion. Hereafter a statement of the grounds in the language of the statutewillbe insufficient for the granting of a new trial. While motions substantially identical tothismotion have been previously presented tothisCourt and the contents have not been challenged or found insufficient, inview of the fact that Rule 59, M.R.Civ.P., 

### is inthe process of being changed torequire trialcourts to statewith particularity the grounds for granting

a new trial, the timehas come to require a similar requirement be placed on themoving party. Rule 7(b)(1)

## ,M.R.Civ.P., requires thatthe grounds forany motion, including a motion for new trial, be stated with particularity: "(1) An applicationtothe court for an order shallbe by motion which, unless made during a hearinq or trial, shall be made inwriting, shall statewith particularity the qrounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if themotion 

### is stated ina written notice of the hearing of the motion." (Emphasis supplied.) This Court inMartello v. Darlow and Lovely, 151Mont. 232, 235, 441P.2d 175, speaking of section 93-5603, R.C.M. 1947, said:"To authorize granting a new trial, the error complained of must be an error 'materially affecting the substantialrights of [the aggrieved party]' (section 93-5603, R.C.M. 1947) and the error must be of such character that refusal togrant a new trial 'appears to the Court inconsistent with substantial justice.' (Rule 61, I4.R.Civ.P.) In other words, if the substantial rights of the aggrieved party arenot prejudiced, only 'harmless error' is involved not authorizing a new t r i a l t obe granted. Within these limitations, the trial court has broad discretion toqrant a new trial and willnot be reversed except for abuse thereof. [Citing cases]

### " Here, we find themotion for a new trialwas inadequate and defective in its essential respects inthat it failed to meet the recognized statutoryrequirements. Appellant's issue two questions whether ornot appellant

was entitled to a directed verdict because of independent intervening causes. Appellant argues that even if Byington orUithof were negligent, that such negligence, if any, was not the proximate

cause of theMcWhirk-Halsey accident in that it was superceded by the intervening negligence of Walker and McWhirk; that the stalled truck did nothing more than furnish a condition by which the injury occurred as the result of a subsequent independent act of

a third person; and the factthat Byington failed toset flags 100 feet infront of his stalled vehicle was atmost a remote cause, for the accident occurred more than 100 feet in front of the stalled truck. Appellant further argues thatWalker and McWhirk were negligent in that they were driving too fast tostopwithin their clear range of vision which, allegedly, was 645 feet from the stalled truck. Further, that Byington's failuretoanticipate Waiker and McWhirk's negligence isnot negligence on the part of Byington. The question then is: Was there an independent intervening act? Respondent argues that any intervening actmust he thewrongful act of another, and that no negligence was shown by McWhirk; further, that Byington did not have to foresee the exact consequences of the accident, but that some injury would

occur from the stalledvehicle, and that there can be more than one proximate cause of an injury and if the intervening acts

are forseeable toa reasonable man, then it isnot an independent intervening cause. We agree with the proposition that where one has negligently caused a condition of danger, he is not relieved of responsibilityfor damage caused toanother merely because the injury also involved the later misconduct of someone else. But, this is true only if both negligent acts arein fact concurring proximate causes of the injury; and it 

### isnot true if the later negligence 

### is an independent, intervening sole cause of the incident. Boepple v. Mohalt, 101Mont. 417, 54 P.2d 857. Indetermining whether the negligence increating a hazard (thetruck stalled on the highway) was a proximate cause of the accident, this test is tobe applied: Did the wrongful act, ina natural continuous sequence of events, which might reasonably be expected tofollow, produce the injury? If so, it 

### is a concurring proximate cause of the injury even though the later negligent act of another [Walker and McWhirk] cooperated tocause it. On the other hand, if the latter's actof negligence incausing the accident was of such a character as not reasonably tobe expected tohappen inthe natural sequence of events, then such later actof negligence 

### isthe independent, intervening

cause and therefore the sole proximate cause of the injury. 

### Jimison v. United States, 267 F.Supp. 674; Sumner v. Amacher, 150 Mont. 544, 437 P.2d 630; DeVerniero v. Eby, 159Mont. 146, 496 P.2d 290; Ford 

### v. Rupple, 161Mont. 56, 504 P.2d 686; Brandenburger

v. Toyota Motor Sales, Mont, 

# - - , 513 P.2d 268; 30.St.Rep. 808.

### Applying the foregoing test to the instant situation, it was reasonable to foresee that the eastbound drivers [Walker and McWhirk] would see the truck parked on the highway. Considering Montana's case law and the federal court views on our law, this Court again finds that abstract foreseeability is not sufficient to meet the requirements of proximate cause. Applying Jimison here, appellant was not obliged to foresee or anticipate that either Walker or McWhirk would come over the hill at such speeds that they could not stop within the assured clear distance ahead of them. Neither was appellant obliged to foresee that Walker would continue over the hill without braking after seeing the reflector at the top and should have realized there might be trouble on the other side. All of this leads to the conviction that the district court should have granted appellant's motion for a directed verdict at the close of respondent's case-in-chief. We have reviewed the various other issues raised by appellant but confine our decision to issues one and two as controlling. Accordingly, the order of the court granting respondent a new trial is vacated and set aside. The jury verdict in favor of appellant and the judgment are affirmed.

Justic We copcur: * -CI

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