No. 14856 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

ALBERT PLOYHlR and JWRGARET PLOYHAR, husband and wife, Plaintiffs and Respondents,

BOARD OF TRUSTEES OF MISSOULA COUNTY HIGH SCHOOL et al., Defendants and Appellants.
Appeal from: District Court of the Fourth Judicial District, Honorable James B. Wheelis, Judgepresiding. Counsel of Record: For Appellants: Garlington,Lohn and Robinson, Missoula, Montana For Respondents: Morrison Law Firm,Missoula,Montana Skelton ardKnight,Missoula, Montana

Submitted on briefs: November 14, 1979 Decided: 

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ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court.
The defendant,Board of Trustees of Missoula County High School (hereinafter referred to as Board) appeals the order of the Missoula County District Court, granting the plaintiffs' motion for a new trial. The Board contends that the trial court erroneously concluded that the expert testimony of Arlyn Simmswas not necessary and that his testimony prejudiced the plaintiffs' case. OnApril 24, 1975, the plaintiffs, Margaret and Albert Ployhar commenced this action to recover damages for the death of their son, Patrick. In September 1972, Patrick enrolled in a heavy equipment operation class at Missoula Technical Center

(Tech). OnApril 30, 1973. students under the supervision of Tech instructorswere leveling ground with caterpillar tractors and other heavy equipment used to teach class techniques. At the time the accident occurred, Patrick, then 19 years old, was placing stakes behind a caterpillar being operated by another student. When the caterpillar reversed its direction,Patrick
was caught under the cat and crushed. He died as a result of the accident. The plaintiffs' amended complaint alleged that the Board had negligently caused the decedent's death by failing to furnish the caterpillarwith a back up alarm,by directing the decedent to place stakes in a dangerous area, and by permitting the caterpillar to be operated by an inexperiencedperson without proper supervision. At trial Arlyn Simms, an instructor at Tech,who was supervising some of the studentswhen the accident occurred, testified for the plaintiffs. During cross examination, counsel asked Simswhat in his opinion was the cause of the accident. Simms replied that Pat was at fault. On February 15, 1979, the jury returned a verdict -2-for the defendant. The plaintiffs made a motion for a new trial which the trial court granted on March 23, 1979. On April 9, 1979, the Board filed a notice of appeal of the court order for a new trial. The trial courthas broad discretion in granting or refusing to grant a new trial. Its order will not be disturbed
on appeal in the absence of a clear showing of a manifest abuse of discretion. See Yerkich v. Opsta (1978)

### , -Mont.



## , 577 P.2d 857, 35 St.Rep. 465. This Court is especially reluctant to reverse an order granting a new trial because it gives both parties an equal chance to relitigate their positions in a second trial. Tigh v. College Park Realty Co.

(1967),149 Mont. 358, 427 P.2d 57. 

### An order granting a new trial will be upheld if it can be sustained on any of the grounds contained in the order. Tigh, supra. Here, the trial court concluded the plaintiff was entitled to a new trial because Arlyn Simms' testimonywas not necessary to reconstruct the accident and he was a participant in the events surrounding the accident. We conclude there was no abuse of discretion in finding Simms' testimonywas not necessary, and thus,will discuss here only the former point contained in the court order. Simms gave his opinion as to the proximate cause of the accident. Opinion evidence concerning the cause of an accident is admissible only if the subjectmatter is beyond the ordinary understanding of the jury. See Ziegler

### v. Crofoot (1973),213 Kan. 480, 516 P.2d 954. The cause of the accidentmust be sufficiently complex to require explanation. See McGuire v. Nelson (1975),167Mont. 188, 536 P.2d 768; Massoni 

### v. State Highway Commission (1974),214 Kan. 844, 522 P.2d 973, 979. See also Dobkowski

### v. Lowe's, Inc. (Ill. C.A. 19741, 20 Ill.App.3d 275, 314 N.E.2d 623. Here, there was no need for such testimony. The accidentwas relatively simple. It -3-involved a single tractor, and the actions of only two individuals, the driver of the tractor and the accident victim. At trial, an eyewitness gave his description of the accident, and other witnesses testified concerning the actions of the tractor driver and the decedent. This evidence appears to be sufficientto allow the jury to make an independent judgment as to the ultimate cause of the accident. Thus,we conclude therewas no abuse of discretion in deternining that opinion testimonywas not needed here. The Board contends that Simms' testimony was not prejudicial to the plaintiffs' case. However, the extent to which the deceased's own actions caused the accident was obviously a crucialpart of the Board's defense. No other witnesses gave their opinion as to the cause of the accident. These circumstances support the trial court's conclusion that Sirnrns' testimony was manifestly prejudicial to the plaintiff's
case.

We Concur:Mr. Justice John Conway Harrison dissenting: I must respectfully dissent to the majority's opinion inthismatter. I find that th1.2trial courtproperly admitted the testimony of Simms asan expert, and for that
reason should have sustained the verdict of the jury inthe matter

# . Under theMontana Rules of Evidence, recently adopted, said rules call for the liberaluse of expert testimony. As noted inthe opinion, the rule involved here isRule 702, which states: "If scientific, technical, orother specialized knowledge willassist the trier of facttounderstand the evidence or todetermine a factin issue, a witness qualified as an expertby knowledge, skill, experience, training, or education, may testify thereto inthe form of an opinion or otherwise.

### " As noted by appellant, two issuesmust be considered in implementing the above rule. First, whether the subject of testimony isof such a nature that the trier of factwillbe assistedby another's specializedknowledge; and second, whether the proposed expert witness is sufficiently qualified to testify. This Court has long held thatexpert testimony should be admitted whenever the issuebefore the jury concerns a subject of such a nature that the average person cannot reach as intelligent a conclusion asone who has had experience with the subject. See, Demarais v. Johnson (1931), 90 Ilont. 366, 370, 3P.2d 283, 285. We note inthe present
case that thejury considered the operation of several pieces of heavy equipment operated by the students. Specifically, the operation under review involved two caterpillars, one with a ripper and a mesh screen, two scrapers,
a loader, a roller, and a motor grader. Assuming that theaverageperson was familiar with these pieces of equipment and their individual characteristics, the operation involved in this case was further complicated by the fact that these largemachines were being operated by eighteen to twenty students in an area about two-thirds the size of a football field. Due to the close confines and the involvementof students, the operating procedures were not like that of any ordinary construction site. The fact that the students were required to take weeks of classroom orientation and instruction before they were allowed to run the equipment exen~lifies the nature of the operation. Indiscussing the admissibility of expert testimony, the federal courts have emphasized the importanceof clear understanding of facts. See,Miley v. Delta Marine Drilling Company (5thCir. 1973)r 473 F.2d 856. This case involved the proper procedure for loading cargo ships. There the courtnoted: "'It must be remembered that the court is not the judge of the quality of the evidence,nor does the witness perform the function of a juror--he can only contribute something to the jury's informationand if he can,he should be permitted to do so. Especially is this true, where as here the answer to the cruci&..Lquestion is necessarily left to those claiming special knowledgebased upon experience. 

# ..I 11 M-, 473 F.2d at 858,quoting Bratt v. Western Airlines (10thCir. 1946), 155 F.2d 850, 854. As to Sirnms' testimony,we note that throughout the
case both attorneys relied on his testimony as an experienced heavy equipmentperson. They relied on his testimony

(1) concerning the grade that was shot on the jobsite; (2) the view to the rear fromMarty Lidel's caterpillar; (3) the general concerns of a caterpillar operator when backing up; and, (4) the change in the motor noises as a caterpillar backs up.To understand the concerns of the caterpillar driver while backing up, and the procedure and concern of a lone student checking a grade ina congested area, it was necessary tohave thekind of testimony that thiswitness provided so that the average person could reach an intelligent understanding as towhat took place. See, McGuire v. Nelson (1975), 167Mont. 188, 536 P.2d 768. It isfor thisreason that the expert testimony of the witness Simms should have been considered and admitted toassist the triers of fact to understand the evidence and todetermine the factissue before them. See, Demarais v. Johnson, supra, and McGuire
v. Nelson, supra. The second issue presented on Rule 702 iswhether Simms
was sufficientlyqualified totestify asan expert. Turning tothe Federal Rules of Evidence which have been adopted nearly intotoby the Stateof Montana, a proposed expert witness should not be required to satisfyan overly narrow test of his own qualifications. See Gardner v. General Motors Corporation (10thCir. 1974), 507 F.2d 525, 528; United Statesv. Barker (6thCir. 1977), 553 F.2d 1013, 1025. An expertwitness may not have certificatesof training ormembership inprofessional organizations, butmay qualify asan expertbased upon experience alone. Tank v. C.I.R. (6thCir. 1959), 270 F.2d 477. InTank a superintendent of instruction and saleswas allowed to testify as
an expert about his appraisal of certainreal estate. The Court stated: 

# ".

.

# . The absence of certificates, memberships, and the like

# .. . does not inand of itself detract from competency which otherwise exists." 270 F.2d at486.InMontana we have adopted the federal rule which allows witnesses to give expert testimony based on experience. Rule 702,Mont.R.Evid. It iswell recognized in Montana that the degree of the expert's qualifications affects the weight, not the admissibility of his testimony. See,~esbitt v. City of Butte (1945), 118Mont. 84, 163 P.2d 251. The courts of this statehave continuallyheld that expert testimony is admissible in explaining the cause of an accident. Pachek v. Norton Concrete Co. (1972),160Mont. 16, 499 P.2d 766. In addition, the Montana courts have allowed experts, qualified by experience, to testify on causation. Waddell v. American Breeders Service, Inc.

(1973), 161Mont. 221, 505 P.2d 417. InWaddell the son of a rancher was allowed to testify that the cause of poor calf drop spawned by artificial inseminationwas a supply of bad
semen. Even though the son had attended a school for inseminators, he was not a licensed inseminator,he had not read the entire manual, nor did he own a manual. Nevertheless, the court allowed the son to testify because he had inseminated a number of cows under supervision of the representative of the supplier. Thus, inWaddell the son's experience
was sufficient to allow testimony as to the cause of the damage. Moreover, the court stated that the defendant supplier of semenwas not deprived of a fair trial since it had an opportunity to cross-examine the witness. 505 P.2d at 422. The facts inWaddell are similar to those in the present
case. Here,witness Simrns has had a long associationwith heavy equipment, their characteristicsand dangers. ~ased
on this experience, he was asked if he had formed an opinion
as to the cause of the accident. The opposing party had anopportunity to cross-examine,and in fact did, just as did the opposing par-cy inWaddell. In addition, the testimony of Simrns is cumulative only. The deputy sheriffwho made the official investigation testified to substantially the same thing that Simmsdid and
came to the same conclusion. Under the circumstances here, such cumulative evidence does notprejudice the appellantand its introduction is insufficient grounds to authorize a new trial. Pickett

### v. Kyger (1968), 151Mont. 87, 96-97, 439 P.2d 57. See also, Morris v. Corcoran Pulpwood Co. (1970),154Mont. 468, 479, 465 P.2d 827 (dissentingopinion).



# w I concur in the foregoing dlssent.

Chief Justice