No. 12376 

IN THE 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 Judicial District, 

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 after a 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, to recover 

damages for injuries sustained as a consequence of a bizarre series 

of motor vehicle accidents. Prior to trial, Halsey died of his 

injuries; his widow was substituted as plaintiff. During the 

trial, plaintiff settled with McWhirk for $100,000. 

the 

Here, due to/complexity and the volumes of facts presented, 

it is desirable to list the people involved and their position.: 

Anderson-------- Montana Highway Patrolman. 

Bryant---------- Passenger in McWhirk truck. 

Byington-------- Driver of disabled Uithof truck. 

Halsey---------- Plaintiff and driver of second westbound 

truck to pass the disabled truck. 

Harris---------- Truck driver who came upon disabled truck 

early in the morning. 

Hermance-------- Driver of first westbound truck to pass 

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 in vehicle 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 804 
feet east and downhill from the top of Whiskey John hill located 

west of Browning, Montana. The weather was below zero, snow 

was blowing over the road into the ditches, there were some ice 

spots on the stretch of road but for the most part the road was 

hare. After the truck stalled, Byington checked as to why it 

stalled and found a broken clutch. He attempted to repair the 

clutch without success. At about 3:15 a.m. a fellow trucker, 

Harris, stopped and tried unsuccessfully to repair the Uithof 

truck. Harris offered to take Byington into East Glacier, 

Montana, the next town west, but Byington stayed with the truck 

continuing to try to repair it. Two hours later, at about 5:00 

a.m., he caught a ride into East Glacier with the first vehicle 

going either direction after the Harris truck departed. At East 

Glacier he called a mechanic. When his truck stalled, Byington 

set out three reflectors to warn oncoming traffic. One reflector 

was placed some 250 feet west and in front of the stalled truck. 

He did not put out red flags which he had in a kit in the truck. 

The truck had previously been repaired at Cut Bank, Montanra, so the mechanic he called was at Cut Bank, some 40 miles 

east of the stalled truck. That mechanic suggested he contact a 

mechanic in East Glacier first and this contact was made between 

the hours of 7:00 and 8:00 a.m. At about 8:00 a.m. Eyington and 

the mechanic went out and attempted to repair the truck without 

success. Byington then returned to East Glacier where he again 

called the mechanic in Cut Bank at about 9:45 a.m., requesting 

that he come out to service the truck. The mechanic left Cut 

Bank at 10:OO a.m. and arrived in East Glacier an hour later 

where he picked up Byington and took him back to the stalled truck. 

After trying unsuccessfully to repair the truck, they sent word 

into Browning, the nearest town, to call the highway patrol or 

the sheriff for assistance. By this time of day, between 11:OO 
a.m. and 12:OO noon, the east-west traffic on the highway had 

begun to increase. 

At about 11:30 a.m. Eyington and the mechanic went into 

Browning where Byington contacted the city police and had them 

call Highway Patrolman Anderson, and at about the same time he 

again called Cut Bank to get a wrecker from the Getter Trucking 

Co., to come and remove the stalled truck. He remained in Browning until the wrecker from Cut Bank arrived at about 1:30 p.m.; 

he then went back to the truck only to find that a series of 

accidents had occurred. 

Highway Patrolman Anderson who was stationed in East 

Glacier, received a call notifying him of the disabled truck at 

about 11:45 a.m. He arrived at the truck location about 12:15 

p.m. and tried to direct traffic for ten or fifteen minutes 

without too much success. Before leaving the scene he moved the 

reflector placed by Byington west of the stalled truck, to a 

point on the hill crest where he felt it would warn eastbound 

traffic. Neither Byington or Anderson put out any flags, although 

both the truck and the patrol car were equipped with them. 

At about 12:30 p.m. Anderson went into Browning, some 

three to four miles east of the stalled truck, to get assistance 

to flag traffic until the wrecker could arrive. 

During the next fifteen to twenty minutes the scene on 

the east slope of Whiskey John hill changed. First, on the scene 

coming over the hill crest 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 as good, considering that it was wintertime, and they drove 

at a speed of from 55 to 60 miles per hour, before coming to the 
Location of the stalled truck. Upon coming over the crest of 

the hill they saw the reflector placed by Anderson and slowed 

down to about 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 let the Hermance truck pass the stalled truck. Just at that 

time, the Walker car came over the hill traveling east and ran 

into the rear end of the stopped Upham car. 

The Uphams saw the Walker car, knew it was going to hit 

thern, so they were able to brace themselves and thereby avoided 

serious injury. Walker was returning from the west to Browning 

with his wife and son. He testified he had been driving about 

60 miles per hour but that at the crest of the hill he saw the 

reflector and slowed down. At about the time of the rear end 

accident between the Upham car and the Walker car, the Hermance 

truck was abreast of the two cars and in its proper lane. It 

went to the crest of the hill, stopped and, according to the 

driver Hermance, he turned on his lights and blinkers and then 

tried to stop a truck driven by McWhirk which was coming over the 

crest of the hill eastbound at from 45 to 60 miles per hour. 

McWhirt denied that Hermance's warning lights were on, but acknowledges that Hermance did wave at him. 

McWhirt's father-in-law Bryant, also a trucker, was a 

passenger in McWhirt's truck. They saw the reflector as they 

passed over the crest of the hill but said it was lying down on 

the highway. They observed both lanes of the highway blocked 

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

use the borrow pit, but in doing 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 trial when the motion fails to state "with particularity 

the grounds therefor" as required 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 at trial, was such 

error or defect of a nature which affected the substantial rights 

of plaintiff so that the jury verdict in favor of defendant was 

inconsistent with substantial justice? In other words, did the 

district court , in granting 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 to its concern with the failure of trial courts to state reasons for the granting of new 

trials. Beebe v. Johnson, Mont . , 526 P.2d 128, 31 St.Rep. 

702; Haynes v. County of Missoula, 163 Mont. 270, 517 P.2d 370, 

30 St.Rep. 1083; Campeau v. Lewis, 144 Mont. 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 in the above-entitled cause upon 

the following grounds, to wit: 
"(1) Irregularities in the proceedings 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 fair trial. 

"(2) Insufficiency of the evidence to justify 

the verdict or other decision, or that it is 

against the law. 

"(3) Error in law occurring at the trial and 

excepted to by 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 trial may be granted. Rule 

7 (b) , M.R.Civ.P. provides that such motions shall "state with 

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 statute will be insufficient 

for the granting of a new trial. 

While motions substantially identical to this motion have 

been previously presented to this Court and the contents have not 

been challenged or found insufficient, in view of the fact that 

Rule 59, M.R.Civ.P., is in the process of being changed to require 

trial courts to state with particularity the grounds for granting 

a new trial, the time has come to require a similar requirement be 

placed on the moving party. Rule 7 (b) (1) , M.R.Civ.P., requires 

that the grounds for any motion, including a motion for new trial, 

be stated with particularity: 

"(1) An application to the court for an order 

shall be by motion which, unless made during a 

hearinq or trial, shall be made in writing, 

shall state with particularity the qrounds 

therefor, and shall set forth the relief or order 

sought. The requirement of writing is fulfilled 

if the motion is stated in a written notice of 

the hearing of the motion." (Emphasis supplied.) 

This Court in Martello v. Darlow and Lovely, 151 Mont. 

232, 235, 441 P.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 substantial rights of [the 

aggrieved party]' (section 93-5603, R.C.M. 

1947) and the error must be of such character 

that refusal to grant 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 are not prejudiced, only 'harmless error' 

is involved not authorizing a new t r i a l t o be 

granted. Within these limitations, the trial 

court has broad discretion to qrant a new trial 

and will not be reversed except for abuse thereof. 

[Citing cases] " 

Here, we find the motion for a new trial was inadequate 

and defective in its essential respects in that it failed to 

meet the recognized statutory requirements. 

Appellant's issue two questions whether or not appellant 

was entitled to a directed verdict because of independent intervening causes. 

Appellant argues that even if Byington or Uithof were 

negligent, that such negligence, if any, was not the proximate 

cause of the McWhirk-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 fact that Byington failed to set flags 

100 feet in front of his stalled vehicle was at most a remote 

cause, for the accident occurred more than 100 feet in front of 

the stalled truck. 

Appellant further argues that Walker and McWhirk were 

negligent in that they were driving too fast to stop within their 

clear range of vision which, allegedly, was 645 feet from the 

stalled truck. Further, that Byington's failure to anticipate 

Waiker and McWhirk's negligence is not negligence on the part of 

Byington. The question then is: Was there an independent intervening act? 

Respondent argues that any intervening act must he the 
wrongful 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 stalled vehicle, and that there can be more than 

one proximate cause of an injury and if the intervening acts 

are forseeable to a reasonable man, then it is not an independent intervening cause. 

We agree with the proposition that where one has negligently caused a condition of danger, he is not relieved of responsibility for damage caused to another merely because the injury 

also involved the later misconduct of someone else. But, this 

is true only if both negligent acts are in fact concurring proximate causes of the injury; and it is not true if the later negligence is an independent, intervening sole cause of the incident. Boepple v. Mohalt, 101 Mont. 417, 54 P.2d 857. 

In determining whether the negligence in creating a 

hazard (the truck stalled on the highway) was a proximate cause 

of the accident, this test is to be applied: Did the wrongful 

act, in a natural continuous sequence of events, which might 

reasonably be expected to follow, 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 

to cause it. On the other hand, if the latter's act of negligence 

in causing the accident was of such a character as not reasonably 

to be expected to happen in the natural sequence of events, then 

such later act of negligence is the 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, 159 Mont. 146, 496 

P.2d 290; Ford v. Rupple, 161 Mont. 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: 

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