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 : FEB 2 8 1973 

Clerk 
Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. 

This is an appeal from an order of the district court 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 

of damages in an 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 in Helena by plane on October 

13, 1963. He rented an automobile from defendant Rent-A-Car Inc., which 

is a licensee of defendant Hertz Corporation. The rental was made through 

Rent-A-Car's agent in Helena, 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 to a laundromat on 

Eleventh Avenue in Helena, where the accident in question took place. Greene 

testified that during the course of the drive to the laundromat he had no 

trouble with the brakes. Upon arriving at the laundromat he stopped the car 

in the parking area and left the automobile's automatic transmission in the 

drive position. He testified that he did pull out the emergency or hand 

brake. As he started to get out of the automobile it began to roll backwards. Greene testified: 

" * * * so I put the hand brake on, opened the door, 

stepped out with my left foot and took my foot off the 

brake pedal. I had already pulled this out as far as 

it would go, took my foot off the brake pedal, and 

I was I'd say half way out of the car, stepped out 

and the car started to slide backwards. I couldn't 

get back in, and I tried to hold it with my shoulder 

and the car probably weighed two tons, and the next 

thing I knew I was down, oh, at least as far as from 

me to Mr. Skedd, only a little further * * *." 

The car rolled across Eleventh Avenue and came to rest against a 

tree. Greene retrieved the automobile and drove back into the parking lot. 

After placing his laundry in one of the machines at the laundromat, he 

ca1 led Knapp's Service and reported the accident. Knapp's apparently 
reported the accident to the pol ice as a few minutes later Sergeant Goodale, 

now Captain Goodale, arrived at the scene. Goodale testified that after 

learning what had happened he tested the hand brake and the automobile 

rolled back a few feet. Captain Goodale took Greene to the hospital. As 

a result of the accident Greene received injuries to his left foot, right 

leg and shoulder. The automobile was taken back to Knapp's Service where 

the hand brake was examined by an employee. 

The sole issue on appeal is whether it was an abuse of discretion 

for the district court to grant a new trial. 

The granting of a new trial is governed by statute. Section 93-5603(6), 

R.C.M. 1947, provides that a new trial may be granted for: 

"Insufficiency of the evidence to justify the verdict 

or other decision, or that it is against law * * *." 

Apparently it was 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 in reviewing the actions of the district court has 

been recently restated in Staggers v. United States Fidelity and 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 is not insufficient if it is substantial. 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 it establishes the plaintiff's case, and, if all 

reasonable men must conclude that the evidence does not 

establish such case, then it is not substantial evidence.'" 

118 Mont. 172, at page 179, 164 P.2d at page 153. The 

evidence may be inherently weak 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 conflict with 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 outline the meaning of 

"insufficient evidence" in the statute. The jury is delegated the task of finding the facts. Their verdict is 

based upon their findings. The trial judge, however, has 

the discretion to prevent a miscarriage of justice by 

granting a new trial if there is an insufficiency of evidence to support the verdict. "' 
In this cause Greene and Captain Goodale testified the brake did 

not work. Four defense witnesses testified the hand brake was in perfect 

working order, three of whom had experience in auto 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 in working order. The manner in which he tested the brake 

was by parking it on an incline near the service station then setting the 

hand brake and leaving the car in gear. He stated the only way the automobile would move in this manner was if the motor was running and he tried 

to move it. The automobile was left overnight in this position and it did 

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. 

It was his testimony the automobile would only move with the hand brake set 

if the motor was running and the car in gear. The automobile was taken to 

Great Fa1 1s where the emergency or hand brake was checked by two mechanics 

employed by Rent-A-Car Inc. Both testified they found no defect in the brake. 

The jury was instructed that it was not bound to find any fact by the number 

of witnesses produced as opposed to only one witness. It can be presumed 

that it chose to believe the defense witnesses. 

There was also the testimony of Captain Goodale that at the time of 

the accident Greene told him he was already out of the car and when he saw 

it start to roll he tried to get back in. In trying to do so, the open door 

knocked him down. 

We hold the trial court abused its discretion in determining 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 injuries were not caused by the accident and thereby 

deny him recovery. I n l i g h t of what we have said heretofore we observe no 

need to discuss that issue. 

The order granting the new trial is reversed and the district court 
is directed to reinstate the j 

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/' Associate Justices