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, Judge presiding. 

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 : APR 22 198~ 

Clerk 
Mr. 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 Simms was not necessary and that his testimony prejudiced the plaintiffs' case. 

On April 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). On April 30, 1973. students under the supervision of 

Tech instructors were 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 caterpillar with 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 inexperienced person without 

proper supervision. At trial Arlyn Simms, an instructor at 

Tech, who was supervising some of the students when the accident 

occurred, testified for the plaintiffs. 

During cross examination, counsel asked Sims what 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 

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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 court has 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' testimony was 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' testimony was 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 subject matter is beyond 

the ordinary understanding of the jury. See Ziegler v. 

Crofoot (1973), 213 Kan. 480, 516 P.2d 954. The cause of 

the accident must be sufficiently complex to require explanation. 

See McGuire v. Nelson (1975), 167 Mont. 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 accident was relatively simple. It 

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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 sufficient to allow the jury to make an independent 

judgment as to the ultimate cause of the accident. Thus, we 

conclude there was no abuse of discretion in deternining that 

opinion testimony was 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 

crucial part 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 

in this matter. I find that th1.2 trial court properly admitted the testimony of Simms as an expert, and for that 

reason should have sustained the verdict of the jury in the 

matter . 

Under the Montana Rules of Evidence, recently adopted, 

said rules call for the liberal use of expert testimony. As 

noted in the opinion, the rule involved here is Rule 702, 

which states: 

"If scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the evidence or to determine a fact in 

issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, 

may testify thereto in the form of an opinion or 

otherwise. " 

As noted by appellant, two issues must be considered in 

implementing the above rule. First, whether the subject of 

testimony is of such a nature that the trier of fact will be 

assisted by another's specialized knowledge; and second, 

whether the proposed expert witness is sufficiently qualif ied to testify. 

This Court has long held that expert testimony should 

be admitted whenever the issue before the jury concerns a 

subject of such a nature that the average person cannot 

reach as intelligent a conclusion as one who has had experience with the subject. See, Demarais v. Johnson (1931), 90 

Ilont. 366, 370, 3 P.2d 283, 285. We note in the present 

case that the jury 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 the 
average person 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 

large machines 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 involvement of 

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. 

In discussing the admissibility of expert testimony, 

the federal courts have emphasized the importance of clear 

understanding of facts. See, Miley v. Delta Marine Drilling 

Company (5th Cir. 1973)r 473 F.2d 856. This case involved 

the proper procedure for loading cargo ships. There the 

court noted: 

"'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 information and if he can, he should be 

permitted to do so. Especially is this true, 

where as here the answer to the cruci&..L question is necessarily left to those claiming special knowledge based upon experience. . . I 11 

M-, 473 F.2d at 858, quoting Bratt v. Western 

Airlines (10th Cir. 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 equipment person. They relied on his testimony 

(1) concerning the grade that was shot on the jobsite; (2) 

the view to the rear from Marty 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 in a congested area, it was necessary to have the kind of testimony that this witness provided so that the average person could reach an intelligent 

understanding as to what took place. See, McGuire v. Nelson 

(1975), 167 Mont. 188, 536 P.2d 768. It is for this reason 

that the expert testimony of the witness Simms should have 

been considered and admitted to assist the triers of fact to 

understand the evidence and to determine the fact issue 

before them. See, Demarais v. Johnson, supra, and McGuire 

v. Nelson, supra. 

The second issue presented on Rule 702 is whether Simms 

was sufficiently qualified to testify as an expert. Turning 

to the Federal Rules of Evidence which have been adopted 

nearly in toto by the State of Montana, a proposed expert 

witness should not be required to satisfy an overly narrow 

test of his own qualifications. See Gardner v. General 

Motors Corporation (10th Cir. 1974), 507 F.2d 525, 528; 

United States v. Barker (6th Cir. 1977), 553 F.2d 1013, 

1025. An expert witness may not have certificates of training or membership in professional organizations, but may 

qualify as an expert based upon experience alone. Tank v. 

C.I.R. (6th Cir. 1959), 270 F.2d 477. In Tank a superintendent of instruction and sales was allowed to testify as 

an expert about his appraisal of certain real estate. The 

Court stated: 

". . . The absence of certificates, memberships, 

and the like . . . does not in and of itself 

detract from competency which otherwise exists." 

270 F.2d at 486. 
In Montana we have adopted the federal rule which 

allows witnesses to give expert testimony based on experience. Rule 702, Mont.R.Evid. It is well 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), 118 Mont. 84, 163 P.2d 

251. The courts of this state have continually held that 

expert testimony is admissible in explaining the cause of an 

accident. Pachek v. Norton Concrete Co. (1972), 160 Mont. 

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), 161 Mont. 221, 505 P.2d 417. In Waddell the son of 

a rancher was allowed to testify that the cause of poor calf 

drop spawned by artificial insemination was 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, in Waddell 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 semen was not deprived of a fair trial since it 

had an opportunity to cross-examine the witness. 505 P.2d 

at 422. 

The facts in Waddell are similar to those in the present 

case. Here, witness Simrns has had a long association with 

heavy equipment, their characteristics and 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 an 
opportunity to cross-examine, and in fact did, just as did 

the opposing par-cy in Waddell. 

In addition, the testimony of Simrns is cumulative only. 

The deputy sheriff who made the official investigation 

testified to substantially the same thing that Simms did and 

came to the same conclusion. 

Under the circumstances here, such cumulative evidence 

does not prejudice the appellant and its introduction is 

insufficient grounds to authorize a new trial. Pickett v. 

Kyger (1968), 151 Mont. 87, 96-97, 439 P.2d 57. See also, 

Morris v. Corcoran Pulpwood Co. (1970), 154 Mont. 468, 479, 

465 P.2d 827 (dissenting opinion). 

w 

I concur in the foregoing dlssent. 

Chief Justice