NO. 92-219 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

DEBRA OKLAND, as Guardian Ad Litem 

for BERNIE OKLAND, a minor, 

Plaintiff and Respondent, 

KEITH DAVID WOLF, 

Defendant and Appellant. -. ; ,,>?.fm-t1; CLL 1, dF CUPn&t&E COURI 

ERA% OF MONTANA 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Paul C. Meismer, Anita Harper Foe, Garlington, 

Lohn & Robinson, Missoula, Montana 

For Respondent: 

Edward X. Duckworth, Attorney at Law, 

Ronan, Montana 

Submitted on Briefs: August 20, 1992 

Fif ed: 

~ecided: April 15, 1993 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Plaintiff brought this action on behalf of her eight-year-old 

son, Bernie Okland, for injuries sustained when the bicycle he was 

operating collided with the vehicle being driven by defendant Keith 

David Wolf. The jury returned a verdict, finding that both Wolf 

and Okland were negligent and that each was 50 percent responsible 

for the collision. The jury found that the reasonable amount of 

Okland's damages was $40,000. Pursuant to the jury's finding of 

comparative fault, the District Court entered judgment for 

plaintiff in the amount of $20,000, plus costs and statutory 

interest from the date of judgment. From this judgment, defendant 

appeals. We affirm the District Court. 

The issues raised by defendant on appeal are: 

1. Was there substantial evidence to support the jury's 

verdict? 

2. Was defendant entitled to judgment as a matter of law 

based on our decision in Ohon v. Parchen (1991) , 249 Mont. 342, 816 

P.2d 423? 

3. Was defendant entitled to a new trial because of an 

erroneous instruction given to the jury by the District Court? 

4. Was defendant entitled to a new trial based upon improper 

closing argument by plaintiff's attorney? 

FACTUAL BACKGROUND 

On July 3, 1990, eight-year-old Bernie Okland was operating 

his bicycle in a westerly direction in the alley between 13th 

Avenue and 12th Avenue in Polson. As he approached the alley's 

2 
intersection with 7th Street, he intended to make a right-hand turn 

and proceed in a northerly direction. However, he was traveling 

too fast, could not control his bicycle, and swerved into the 

southbound lane, where he collided with defendant Keith David 

Wolf's vehicle. 

Defendant was 15 years old at the time of his collision with 

Okland. He had received his driver's license 30 days prior to the 

accident. Immediately before the collision, he was proceeding in 

a southerly direction on 7th Street and conversing with his friend, 

who was a passenger in the vehicle. According to all witnesses, he 

was operating his vehicle at a speed of between 20 and 25 miles an 

hour, which was within the legal speed limit. He testified that he 

did not observe Okland until an instant before the collision. 

There was no evidence that defendant applied his brakes or swerved 

to take evasive action prior to the collision. 

As a result of Okland's collision with defendant, he sustained 

physical injuries and incurred medical expenses. 

On January 10, 1991, plaintiff filed an amended complaint 

alleging that the collision in which her son was injured was caused 

by defendant's negligence. In his answer, defendant admitted that 

the collision occurred, but denied that it was his fault and 

alleged that it was caused entirely by the negligence of Okland. 

The principals involved in the collision were deposed, as were 

the investigating officer and an off-duty officer who witnessedthe 

collision. Based on the testimony of these witnesses, defendant 

moved the District Court prior to trial to enter summary judgment 
holding that as a matter of law the collision in which Okland was 

injured was caused solely by his own negligence. That motion was 

denied by the District Court, and this case proceeded to trial 

before a jury of 12 people on December 18, 1991. On December 19, 

the jury returned its verdict, finding both parties negligent and 

apportioning responsibility forthe collision equally between them. 

The jury found that the total amount of damage sustained by Okland 

as a result of his collision with defendant was $40,000. 

Further facts will be discussed as necessary in the discussion 

of the issues raised by defendant. 

I 

Was there substantial evidence to support the jury's verdict? 

Defendant contends that the District Court erred when it 

denied his motions for summary judgment, a directed verdict, and 

judgment notwithstanding the verdict. 

In reviewing a denial of a motion for summary judgment, our 

scope of review is basically the same as when reviewing denial of 

defendant's motion for a directed verdict. Doll v. Major Muffler Centers, 

Inc. (1984), 208 Mont. 401, 416, 687 P.2d 48, 56. 

Our scope of review from denial of a motion for a directed 

verdict is the same as from denial of a motion for judgment 

notwithstanding the verdict. Nelson v. Flathead Valley Transit ( 1992 ) , 2 51 

Mont. 269, 274, 824 P.2d 263, 267. 
In Nelson, we explained the scope of review from an order 

denying a motion for judgment notwithstanding the verdict as 

follows: 

In considering a motion for judgment notwithstanding 

the verdict, the court must view all of the evidence in 

a light most favorable to the non-moving party. Nicholson 

v. United Pacific Insurance Company ( 1985 ) , 2 19 Mont . 3 2 , 7 10 P .2d 

1342. The motion may only be granted if it appears that 

the non-moving party cannot recover upon any view of the 

evidence, including legitimate inferences to be drawn 

from it. Larson v. K-Mart Corporation (1990) , 241 Mont. 428, 

787 P.2d 361. 

Nelson, 824 P.2d at 265. 

In Simclzzik v. Angel Island Community Association ( 19 9 2 ) , 2 5 3 Mont . 2 2 1, 

228-29, 833 P.2d 158, 162-63, we stated: 

We recently discussed our function in reviewing jury 

verdicts. See Silvisv. Hobbs (Mont. 1992), [251 Mont. 407, ] 

824 P.2d 1013, 49 St. Rep. 62. It is not the function of 

this Court to agree or disagree with the jury's verdict. 

Our function is to determine whether substantial evidence 

existed to support the verdict. In our examination, we 

review the facts in the light most favorable to the 

prevailing parties. If conflicting evidence exists, the 

credibility and weight given to the evidence is in the 

jury's province and we will not disturb the jury's 

findings unless they are inherently impossible to 

believe. Silvis, 824 P.2d at 1015-16, 49 St. Rep. at 

63-64. Our job is complete once we find substantial 

evidence in the record to support the jury's conclusion. 

With that scope of review in mind, we conclude that the 

following substantial evidence supports the jury's verdict: 

The street on which this accident occurred was the main artery 

from downtown Polson to the location of defendant's residence. 

Prior to the date on which the accident occurred, defendant had 

passed the intersection of the alley with 7th Street hundreds or 
thousands of times. The intersection is located in a residential 

area with homes on both sides of the street. Defendant was aware 

that it was common for children to be playing and biking in the 

area. He was also aware that because of the presence of children 

in the area, it was important to keep a lookout on both sides of 

the road. He acknowledged that he knew from the driver's education 

course he had just completed that drivers need to be especially 

alert for children because they are unpredictable and you never 

know what they are going to do. 

Defendant admitted that as he proceeded south on 7th Street he 

would have been able to see a substantial part of the alley where 

Okland was operating his bicycle, but testified that he and the 

passenger in his vehicle were chatting and that he did not see the 

bicycle until it was too late to take evasive action. He admitted 

that if he had looked in the direction of the alley and seen Okland 

coming, he could have either slowed down, braked, or swerved. 

Rick Hunter testified that he is employed as a detective by 

the Polson Police Department. He was off duty at the time of the 

accident. However, he witnessed the accident as a passenger in a 

third vehicle. 

The vehicle in which Hunter was traveling was proceeding in an 

easterly direction on 12th Avenue. His position was about one-half 

block north of the intersection of the alley and 7th Street. He 

was significantly further away from the alley than defendant. 

However, from that vantage point he was able to observe Okland 

operating his bicycle in a westerly direction in the alley. He 

6 
noticed that Okland did not have control of his bicycle. The bike 

was wobbling as if its rider was trying to make a turn, but was 

unable to do so. He was able to make these observations and 

conclude that a collision was going to occur from one-half block 

away. He testified that about two to three seconds passed from the 

point when he first saw Okland until the impact occurred. He had 

time to yell to the driver of his vehicle that there was going to 

be an accident. During that time, he did not see defendant make 

any effort to swerve. He did not see any brake lights applied, and 

he did not see any indication that defendant had observed the 

bicycle. 

Hunter also testified that he was familiar with the area where 

the accident occurred and that it is a thickly populated area 

where, on a summer evening, it was common to see children on bikes 

and pedestrians out walking. He testified that a driver in that 

area should certainly plan on children being present and take 

appropriate precautions. He stated that when he drives in that 

area, he scans both sides of the road as a precaution. 

Denman Lee, Ph.D., is a physics professor at Montana State 

University and an accident reconstruction expert. He testified, 

without objection by defendant, regarding his qualifications. Lee 

investigated the accident to determine defendant's sight distances 

as he proceeded in a southerly direction on 7th Street, and he 

determined how long Okland's bicycle should have been visible to 

defendant prior to the point where the collision occurred. He 

testified that, based upon the speed at which he concluded the 

7 
bicycle was traveling, defendant would have been able to observe 

the bicycle for at least 4 seconds prior to the collision if he had 

been driving at a speed of 20 miles per hour, and 3.6 seconds prior 

to the collision if he had been driving at a speed of 25 miles per 

hour. Lee also testified that including reaction time, it would 

have taken defendant approximately 2.3 seconds to bring his vehicle 

to a complete stop from a speed of 20 miles per hour, and 2.6 

seconds to bring his vehicle to a complete stop from a speed of 25 

miles per hour. In summary, he concluded that if defendant had 

seen what was there to be seen, he could have brought his vehicle 

to a complete stop prior to colliding with Okland's bicycle. 

The District Court properly instructed the jury that: 

Negligence is the failure to use reasonable care. 

Negligence may consist of action or inaction. A person 

is negligent if he fails to act as an ordinarily prudent 

person would act under the circumstances. 

In Paytze v. Sorellson (1979), 183 Mont. 323, 599 P.2d 362, we held 

that: 

Under Montana law, a motorist has a duty to look not 

only straight ahead but laterally ahead as well and to 

see that which is in plain sight. Furthermore, a 

motorist is presumed to see that which he could see by 

looking, and he will not be permitted to escape the 

penalty of his negligence by saying that he did not see 

that which was in plain view. Nissen v. Johnson (1959), 135 

Mont. 329, 333, 339 P.2d 651, 653; SoreIk v. Ryan (1955), 

129 Mont. 29, 281 P.2d 1028; Koppang v. Sevier (l938), 106 

Mont. 79, 75 P.2d 790. If a motorist does not keep a 

proper lookout, a jury may find him negligent. 

We conclude that under these circumstances there was 

sufficient evidence, when construed most favorably for the 
prevailing party, to support the jury's finding that defendant was 

negligent by failing to keep a proper lookout and have his vehicle 

under sufficient control to avoid his collision with plaintiff's 

son. 

Defendant also contends that even if there was evidence to 

support a finding that defendant was negligent, the District Court 

should have concluded that Okland's negligence was greater than 

defendant's as a matter of law. In support of this contention, 

defendant cites numerous statutes which he contends Okland violated 

by the manner in which he operated his bicycle. However, we find 

the circumstances in this case similar to those in Dillard v. Doe 

(1992), 251 Mont. 379, 824 P.2d 1016, where we recently held that 

when there is evidence of negligence by both parties, the 

respective degree of each party's negligence is not normally 

susceptible to apportionment as a matter of law. 

In Dillard, the plaintiff was walking along the highway in 

darkness, wind, and snow when he was struck by a snowplow. He sued 

the State of Montana based on the alleged negligence of the 

snowplow operator. The district court granted summary judgment to 

the State based on its conclusion that the plaintiff was negligent 

as a matter of law and that even if the snowplow operator was 

negligent, reasonable minds could not differ on whether the 

plaintiff's negligence exceeded that of the defendant. In 

reversing the judgment of the district court, we pointed out that: 

Ordinarily, issues of negligence are questions of 

fact not susceptible to summary adjudication. Brohrnan v. 
State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. 

Liability should not be adjudicated upon a motion for 

summary judgment where factual issues concerning 

negligence and causation are presented. Duchesneau v. Silver 

Bowcounty (1971), 158 Mont. 369, 377, 492 P.2d 926, 931. 

Dillard, 824 P.2d at 1018-19. 

We also relied on Reedv.Little (1984), 209 Mont. 199, 206-07, 680 

P.2d 937, 940-41, where we held that where there is evidence that 

one party to a lawsuit violated highway traffic statutes, and also 

evidence of negligence on the part of the other party, it is up to 

the jury to weigh and compare the negligence of both parties in 

reaching its verdict. Likewise, in this case, we hold that where 

there was evidence of negligence on the part of both parties, it 

was for the fact finder to determine the comparative degree of 

negligence. The District Court did not err by submitting the issue 

of comparative negligence to the jury. 

I I 

Was defendant entitled to judgment as a matter of law based on 

our decision in Okon v. Parchen (1991) , 249 Mont. 342, 816 P. 2d 423? 

Defendant contends that since he was operating his vehicle in 

his own lane of travel at a lawful speed, his only act or omission 

which contributed to the collision was his failure to anticipate 

that plaintiff would violate the law. His argument continues that 

since we held in Okon that it is not negligent to fail to 

anticipate the negligence of another, defendant was not negligent 

in this case. However, the facts in Okon are distinguishable from 
the facts in this case and we conclude that plaintiff's recovery is 

not barred by Okon. 

In Okon, the plaintiff, who was the favored driver, collided 

with the defendant in a Great Falls intersection when the defendant 

failed to yield the right-of-way. We held that the plaintiff was 

not negligent for failing to anticipate that the defendant would 

not yield to him. The difference in that case was that the 

plaintiff actually observed the defendant shortly prior to the 

collision and saw nothing that would indicate that defendant would 

not stop. There was no suggestion that the defendant's vehicle was 

out of control. The plaintiff then did the responsible thing, 

which was to look for traffic coming from the opposite direction. 

When he looked back in the defendant's direction, the collision was 

unavoidable. We noted that: 

Olson said that he saw Parchen's pickup truck, but 

thought Parchen was going to stop and looked away 

momentarily. A driver of a vehicle traveling on a street 

protected by a "yieldg1 sign has a right to rely upon the 

compliance of the driver of a vehicle which must yield 

with the yield right-of-way statutes. Olson cannot be 

contributorily negligent because his alleged failure to 

see Parchen's vehicle entering the intersection was not 

the proximate cause of the collision. 

In this case, defendant did not see Okland because he did not 

keep the lookout which we have held is required by law. If he had 

observed Okland prior to the collision, he would have noted, as did 

Officer Hunter, that Okland's bicycle was out of control and that 

there was no way he would be able to bring it to a stop at the 
intersection, or keep it in his own lane of travel. Under those 

circumstances, it would not have been reasonable for defendant to 

presume that Okland would comply with the rules of the road. 

In Okon, the plaintiff observed the defendant at the 

appropriate time and had no reason to believe he would not comply 

with the law. In this case, defendant failed to observe Okland at 

any time; if he had, he would have been aware that he was not in 

sufficient control to comply with the law. For these reasons, we 

conclude that Okon is not applicable to the facts in this case and 

does not bar judgment for plaintiff. 

I11 

Was defendant entitled to a new trial because of an erroneous 

instruction given to the jury by the District Court? 

Included among the original jury instructions proposed by 

plaintiff was Plaintiff's Proposed Instruction No. 28. It read as 

follows: 

It does not follow, merely because a party to this 

action has violated some statutory provision that you 

must find him to have been negligent. This is only 

evidence to be considered in determining whether there 

was negligence. 

During the settlement of instructions, that instruction was 

withdrawn by plaintiff. Defendant contends on appeal that he 

objected to the instruction. However, there is no record of any 

objection in the transcript provided to this Court. 

Somehow, the withdrawn instruction was included with the 

court's instructions which were read to the jury. After the court 
concluded reading those instructions, counsel for defendant asked 

to approach the bench where a discussion off the record was 

conducted. Following that discussion, the District Court Judge 

reported to the jury that he had inadvertently included Instruction 

No. 28 and that the attorneys had stipulated that it should be 

removed from the instructions. Both attorneys so stipulated. 

There is no further record of any objection to the procedure 

followed by the court, nor is there any indication in the record 

that defendant requested any relief, such as a mistrial or further 

clarification, based upon the District Court's inadvertent reading 

of the objectionable instruction. 

The District Court did give correct instructions to the jury 

regarding the effect of a statutory violation. Furthermore, 

counsel for defendant clarified the error during closing argument 

when he stated that: 

A violation of a law in the State of Montana isn't 

evidence of negligence. It is neslisence. The 

instruction the judge read, if you find from the evidence 

that the defendant or the plaintiff violated the law just 

read to you, you're instructed that such conduct was 

negligence as a matter of law. It is negligence. 

[Emphasis added.] 

The objectionable instruction was removed from those 

instructions which were submitted to the jury and was not sent to 

the jury room. 

However, on appeal defendant contends that since the 

inadvertent instruction was a misstatement of the law, defendant 

was prejudiced when it was read and on that basis the verdict for 

plaintiff should be reversed. 
While it does appear that the defense objected to the 

inadvertent reading of the incorrect instruction, it does not 

appear from the record that defendant had any objection to the 

solution that was arrived at by the District Court for dealing with 

the mistake. These circumstances are similar to those presented in 

Rasmrtssenv. Sibert (1969), 153 Mont. 286, 456 P.2d 835, where we held 

that the defendant waived any prejudice resulting from the mention 

of insurance by failing to request the appropriate relief prior to 

entry of the jury verdict. In that case, there was discussion 

outside the presence of the jury regarding the remark and no 

specific relief was requested by the defendant until after trial. 

The district court then granted a new trial based upon the 

prejudicial remark. We reversed the district court for the 

following reason: 

Here there was no objection or motion to strike the 

testimony, no request for admonition by the court, no 

motion for mistrial, and no request for a corrective jury 

instruction. Briefly stated, defendant did nothing. In 

so doing defendant took a calculated risk. He knew the 

words had been uttered. He knew that no issue had been 

raised thereon. He knew that the jury had not been 

admonished or instructedto disregard this testimony; and 

he knew that his case was being submitted to the jury on 

this basis. Under these circumstances, defendant's 

failure to object or request corrective action 

constituted a waiver of objection on this issue. It 

cannot be urged for this first time upon motion for a new 

trial following an adverse jury verdict. To hold 

otherwise would not only putthe trial court in error on 

an issue which had not been presented to it for ruling, 

but would permit a litigant to submit his case to the 

jury for a possible verdict in his favor, and in the 

event he was unsuccessful, would permit him another 

determination by another jury. [Citations omitted.] 

Rasmussen, 456 P.2d at 840. 
Likewise, in this case, defendant did not move for a mistrial 

or other corrective action. He chose to submit his case to the 

jury based on the posture that it was in. He is, therefore, 

precluded from requesting relief in the nature of a mistrial for 

the first time on appeal after receiving a verdict from the jury 

that he considers adverse. 

We conclude that the District Court did not err when it denied 

defendant's motion for judgment notwithstanding the verdict based 

upon the inadvertent instruction which was read to the jury. 

IV 

Was defendant entitled to a new trial based upon improper 

closing argument by plaintiff's attorney? 

On appeal, defendant contends that by discussing Okland's age 

during closing argument, plaintiff's attorney invited the jury to 

ignore the law and base its decision on sympathy, rather than the 

appropriate standard of care. However, there is no indication in 

the record that defendant ever objected to any remarks made by 

plaintiff's attorney, nor is there any indication in the record 

that defendant ever requested other relief or corrective action 

from the District Court as a result of those remarks. For the same 

reasons discussed in the previous issue of this opinion, defendant 

is not permitted to raise this issue for the first time on appeal. 

For the above reasons, the judgment of the District Court is 

affirmed. 
We concur: 

Justices 
Justice John Conway Harrison dissenting. 

I dissent. On the four issues presented by the appellant on 

appeal, I would find as to Issue 1 that there was not substantial 

evidence to support the jury's verdict; as to Issue 2, that the 

defendant was entitled to a judgment as a matter of law, based on 

our decision in Olson v. Parchen (lggl), 249 Mont. 342, 816 P.2d 

423; as to Issue 3, that the defendant is entitled to a new trial 

because the District Court gave the jury an erroneous instruction; 

and as to Issue 4, that the defendant is entitled to a new trial 

based on improper closing arguments by the plaintiff's attorney. 

As to Issue 1, which I think is clearly the deciding issue in 

this matter, the fact that the eight-year-old plaintiff came out of 

an alley on his bicycle, not under control, and swung into a lane 

of traffic where the defendant was legally driving his automobile, 

absolves the defendant of liability. The defendant was in no way 

found to be negligent by the officers who investigated this 

accident. Evidence introduced by the plaintiff that the defendant 

had only recently received his driver's license had absolutely 

nothing to do with the cause of this accident. 

This accident was observed by an off-duty police officer who 

was a passenger in a vehicle proceeding east along a street 

parallel to the alley and about half a block from the intersection 

of the alley and the street where the accident occurred. He saw 

the plaintiff come out of the alley, and observing that the bicycle 

appeared to be out of control, he concluded that an accident was 
about to occur. Officers responding to the accident were 

immediately at the scene. They took statements from everyone 

involved and produced not one iota of evidence that shows in any 

way that the defendant driver was negligent. 

The fact that an accident occurred does not raise an inference 

of negligence, nor is it evidence of failure to keep a proper 

lookout, if, indeed, that is what happened in this case. Wilson v. 

Doe (1987), 228 Mont. 42, 740 P.2d 687. 

Numerous times this Court has recognized that it is not 

negligence to fail to anticipate that an approaching vehicle with 

an obligation to yield will disregard all traffic laws and common 

sense and dash out into the path of a driver lawfully and carefully 

proceeding in his proper lane of travel. This is what I believe 

Olson stands for. See also Yates v. Hedges (1978), 178 Mont. 488, 

585 P.2d 1290, and Slagsvold v. Johnson (1975), 168 Mont. 490, 544 

P.2d 442. I1It is not negligence to fail to anticipate injury which 

can come about only as a result of the negligence of another.It 

Green v. Hagele (l979), 182 Mont. 155, 158, 595 P.2d 1159, 1161. 

Here, the jury was so instructed but obviously did not follow that 

instruction. 

As to Issue 2, my careful reading of the transcript in this 

case convinces me that no evidence was produced showing that an act 

or omission on the part of the defendant was the proximate cause of 

the accident or of the plaintiff's injuries. Therefore I would 

hold that under Olson, the District Court erred in not granting the 

defendant summary judgment, a directed verdict or judgment 
notwithstanding the verdict. 

With regard to the third and fourth issues, I am troubled by 

the District Court's reading of an improper instruction that may 

well have misled the jury and deprived the defendant of a fair 

trial, even though the instruction was withdrawn. Withdrawing the 

instruction at least called for a warning on the part of the 

District Court. I note that the error was called to the judge's 

attention. 

It is obvious to me that the instruction was intended to allow 

the plaintiff to avoid the effect of his negligence per se. In 

addition, even though the instruction had been withdrawn, the 

prejudice of the original error was magnified when the plaintiff's 

counsel, in his closing argument, encouraged the jury to ignore the 

plaintiff's negligence. It is my belief that this, in itself, 

warranted granting a new trial. 

I would reverse and remand to the District Court for a new 

trial. 
April 15, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

E. Craig Daue, Esq. 

Paul C. Meismer, Esq. 

GARLINGTON, LOHN, & ROBINSON 

P.O. Box 7909 

Missoula, MT 59807 

EDWARD K. DUCKWORTH 

Attorney at Law 

104 Highway 93 South 

Ronan, MT 59864 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: I 

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