### No. 11868 IN

### THE SUPREME COURT OF 

### THE STATE OF MONTANA 1973

ROBERT C. 

### GREENE, 

### Plaintiff and Respondent,



### -vs

# - KNAPP'S 

### SERVICE, INC,, 

### et al., Defendants and Appellants,

Appeal from: District Court of the First Judicial 

### District, Honorable Nat Allen, Judge presiding. Counsel 

### of Record: For Appellants: 

### Small, Cummins and Hatch, Helena, Montana. Floyd 0. 

### Small and Robert Cumins argued, Helena,

Montana. For Respondent: Lloyd J. 

### Skedd argued, Helena, Montana.

Submitted: January 22, 1973 Decided:

# FEB2 8

## 1973

ClerkMr. Chief Justice James T. Harrison delivered the Opinion of the Court. This isan appeal from an order of the districtcourt of the first judicial district, county of Lewis and Clark, granting plaintiff a new trial. 

### A new trial was ordered following a jury verdict denying an award ofdamages inan action for personal injuries arising out of an automobile accident. The basis of the order was insufficient evidence to support the verdict. From the order granting a new trial, defendants appeal. The record discloses plaintiff, Robert C. Greene, a shoe polish salesman from Seattle, Washington, arrived inHelena by plane on October 13, 1963. He rented an automobile from defendant Rent-A-Car Inc., which isa licensee of defendant Hertz Corporation. The rental was made through Rent-A-Car's agent inHelena, which at that time was defendant Knapp's Service, Inc. The automobile rented to Greene was a 1963 Studebaker Hawk. After renting the automobile, Greene drove to the Placer Hotel where he was staying. He then drove the automobile from the hotel toa laundromat on Eleventh Avenue inHelena, where the accident inquestion took place. Greene testifiedthat during the course of the drive to the laundromat he had no trouble with the brakes. Upon arriving atthe laundromat he stopped the car inthe parking area and leftthe automobile's automatic transmission inthe drive position. He testifiedthat he did pull out the emergency or hand brake. As he started to get out of the automobile itbegan to roll backwards. Greene testified: 

### " 

## * * 

## * so Iput the hand brake on, opened the door, stepped out with my leftfoot and took my foot off the brake pedal. Ihad already pulled this out as far as itwould go, took my foot off the brake pedal, and 

### Iwas I'dsay halfway out of the car, stepped out and the car started to slide backwards. Icouldn't get back in, and 

### I tried to hold itwith my shoulder and the car probably weighed two tons, and the next thing Iknew Iwas down, oh, at least as far as from me to Mr. Skedd, only a littlefurther

## * * 

## *." The car rolled across EleventhAvenue and came to restagainst a tree. Greene retrieved the automobile and drove back intothe parking lot. After placing his laundry inone of the machines atthe laundromat, he ca1led Knapp's Service and reported the accident. Knapp's apparentlyreported the accident tothe policeas a few minutes later Sergeant Goodale,

now Captain Goodale, arrived atthe scene. Goodale testified that after learningwhat had happened he tested the hand brake and the automobile rolled back a few feet. Captain Goodale took Greene tothe hospital. As

a result of the accident Greene received injuries to his leftfoot, right legand shoulder. The automobile was taken back to Knapp's Service where the hand brake was examined by an employee. The sole issue on appeal iswhether itwas an abuse ofdiscretion for the district court togrant a new trial. The granting of a new trial isgoverned by statute. Section 93-5603(6), R.C.M. 1947, provides that a new trial may be granted for: "Insufficiency of the evidence tojustify the verdict or other decision, or that it isagainst law

## **

# *." Apparently itwas on this basis the new trial was granted. Although the court's order sets out no specific reason, the motion by plaintiff's counsel alleged there was insufficient evidence to support the verdict. This Court's task inreviewing the actions of the district court has been recently restated inStaggers v. United States Fidelityand Guaranty Co., 159 Mont. 254, 496 P.2d 1161, 1163, 29 St.Rep. 357, wherein we held: "In Campeau v

# . Lewis

## , 144 Mont

# . 543, 547, 398 

### P.2d 960, 962 (1965) we stated: 'The court has consistently held that the evidence isnot insufficient if it issubstantial. Adami v. Murphy, 118 Mont. 172, 164 P.2d 150. In the Adami case, the court, quoting from Morton v. Mooney, 97 Mont. 1, 33 P.2d 262, held that "substantial evidencet' could be defined as such "'as will convince reasonable men and on which such men may not reasonably differ as to whether itestablishes the plaintiff's case, and, 

### ifall reasonable men must conclude that the evidence does not establish such case, then it isnot substantial evidence.'" 118 Mont. 172, atpage 179, 164 P.2d at page 153. The evidence may be inherentlyweak and still be deemed "substantial", and one witness may be sufficient to establish the preponderance of a case. Batchoff v. Craney, 119 Mont. 157, 161, 172 P.2d 308. Also, substantial evidence may conflictwith other evidence presented. Win Del Ranches, Inc. 

### v. Rolfe and Wood, Inc., 137 Mont. 44, 49, 350 P.2d 581. We think these cases dealing with substantial evidence clearly outlinethe meaning of "insufficient evidence" inthe statute. The jury isdelegated the task of finding the facts. Their verdict is based upon their findings. The trial judge, however, has the discretion to prevent a miscarriage ofjustice by granting a new trial 

### ifthere isan insufficiency of evidence tosupport the verdict.

## "'Inthis cause Greene and Captain Goodale testified the brake did notwork. Four defense witnesses testified the hand brake was inperfect working order, three of whom had experience inauto mechanics. Robert Trollope, an employee of Knapp's Service, testified that he picked the automobile up the night of the accident and that he checked the hand brake and found it inworking order. The manner inwhich he tested the brake

was by parking iton an incline near the service station then setting the hand brake and leaving the car ingear. He stated the only way the automobile would move inthis manner was ifthe motor was running and he tried to move it. The automobile was left overnight inthis position and itdid not move. George Miller, an employee of Rent-A-Car Inc., performed the same test the next morning after learning the facts of the accident from Greene. Itwas his testimony the automobile would only move with the hand brake set 

### ifthe motor was running and the car ingear. The automobile was taken to Great Fa11s where the emergency or hand brake was checked by two mechanics employed by Rent-A-Car Inc. Both testified they found no defect inthe brake. The jury was instructed that itwas not bound to find any fact by the number ofwitnesses produced as opposed to only one witness. Itcan be presumed that itchose to believe the defense witnesses. There was also the testimony of Captain Goodale that atthe time of the accident Greene told him he was already out of the car and when he saw itstart to roll he tried to get back in. Intrying todo so, the open door knocked him down. We hold the trial court abused itsdiscretion indetermining that there was an insufficiency of evidence to support the verdict. Defendants argue there was sufficient evidence upon which the jury could find that Greene's injurieswere not caused by the accident and thereby deny him recovery. I n l i g h tof what we have said heretoforewe observe no need todiscuss that issue. The order granting the new trial isreversed and the district court

### is directed to reinstate the j

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### Associate Justices