No. 90-370 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DOUGLAS C. BROOKINGS, 

Appellant and Plaintiff, 

-vDICK THOMPSON, 

Respondent and Defendant. ................................... DONALD J. TIGART, 

Respondent and Plaintiff, 

-vRICHARD J. THOMPSON, 

Respondent and Defendant. ................................... 

RICHARD J. THOMPSON, 

Respondent and Third-Party Plaintiff, 

-vDONALD J. TIGART, 

Respondent and Third-Party Defendant. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Pondera, 

The Honorable R.D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Philip J. O'Connell, Helena, Montana 

For Respondent: 1, 

Patricia 0'~rien Cotter, Great Falls, Montana; Lon 

T. Holden, Great Falls, Montana 

Submitted on Briefs: March 14, 1991 7 - ig91 

ed: L:! 3 V -"A r r~ q/ .:2 CLERK @6 $:;:~:.:'.!~~ 

~y4-r~ p:- J.' IIILIITANA 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is the third appeal of a personal injury case arising out 

of a motor vehicle accident in Conrad, Montana, on January 4, 1985. 

The first trial resulted in a jury verdict on March 21, 1988, 

finding neither Thompson nor Tigart to be negligent. The District 

Court granted a new trial for irregularites in the proceedings. 

This Court upheld the District Court's order granting Brookings and 

Tigart a new trial. The case was then appealed a second time on 

the issue of attorney's fees. This Court upheld the District 

Court's award of attorney's fees. 

On May 11, 1990, the jury returned its verdict on retrial, 

again finding neither Thompson nor Tigart to be negligent. 

Brookings moved for a new trial. The District Court denied 

Brookings' motion. Brookings appeals. We affirm. 

The determinative issue is: 

Did the District Court err in denying Brookings' motion for 

a new trial on the basis that the defendants, Tigart and Thompson, 

are negligent as a matter of law? 

Plaintiff, Brookings, was a passenger in a pickup driven by 

Tigart. Tigart was rounding a corner in Conrad that was covered 

with black ice. Thompson, also driving a pickup, pulled out onto 

the highway in front of Tigart. Tigartls pickup went out of 

control and ended up in the ditch on its top. 

There was substantial conflict in the evidence as to the cause 

of the accident. Tigart asserts that Thompson pulled out onto the 

highway without stopping or looking. Tigart was forced to hit his 

- 2 
brakes to avoid a collision. He began to slide towards a large 

sign. He overcorrected and the pickup ended up in the ditch on its 

top. Both Tigart's and Brookings' testimony contained 

inconsistencies as to where and at what distance Thompson's vehicle 

entered the highway. There was conflicting testimony as to whether 

Thompson stopped before entering the highway. Tigart testified 

that the Thompson vehicle had difficulty obtaining traction when 

it pulled out onto the highway. Officer Harris testified that 

there was no evidence of slipping or spinning tires at the 

intersection where Thompson pulled out. 

Witnesses Randy Olson and Tim Miller testified at trial that 

at least 100 yards or the length of a city block separated the 

Thompson and Tigart vehicles when the Tigart vehicle began skidding 

out of control on the highway. Miller did not see how Thompson 

could have caused the Tigart vehicle to lose control because of the 

distance between the two vehicles. The estimates of Miller and 

Olson as to the distance between the Thompson and Tigart vehicles 

were confirmed by the measurements taken later by a paralegal. 

Tigart asserts that Thompson's failure to stop and look before 

pulling onto the highway, forced Tigart to take evasive action, 

causing the accident. Brookings makes the same claim as to 

Thompson. Brookings also claims that Tigart was negligent for 

driving at a speed greater than was reasonable and proper under 

the icy conditions. The jury found neither Tigart nor Thompson to 

be negligent. 

Brookings claims that he is entitled to a new trial under the 
provisions of Rule 59 (a), M.R.Civ.P., and under 5 25-11-102 (6) , 

MCA. Rule 59 (a) states in pertinent part: 

Grounds. A new trial may be granted to all or any of the 

parties and on all or part of the issues for any of the 

reasons provided by the statutes of the state of Montana. ... 

Section 25-11-102(6), MCA, states: 

Grounds for new trial. The former verdict or other 

decision may be vacated and a new trial granted on the 

application of the party aggrieved for any of the 

following causes materially affecting the substantial 

rights of such party: ... 

(6) insufficiency of the evidence to justify the verdict 

or other decision or that it is against law; 

The decision to grant a new trial is within the sound 

discretion of the trial judge and will not be overturned absent a 

showing of manifest abuse of discretion. Stanhope v. Lawrence 

(1990), 241 Mont. 468, 471, 787 P.2d 1226, 1228. This Court's 

function is to determine if there is substantial credible evidence 

in the record to support the jury's verdict. Walls v. Rue (1988), 

233 Mont. 236, 238, 759 P.2d 169, 171. We must view the evidence 

in a light most favorable to the prevailing party below, and where 

the record presents conflicting evidence, resolved by the jury, 

this Court is precluded from disturbing the verdict. Id. This 

rule is particularly applicable when the District Court has passed 

on the sufficiency of the evidence on motion for new trial and has 

upheld its sufficiency. Id. When testimony at trial includes 

different accounts of an event, it would be an abuse of discretion 

for the trial court to grant a new trial solely because it chooses 

to believe testimony different than that believed by the jury. To 
do so would create a bench supremacy and sap the vitality of jury 

verdicts. Nelson v. Hartman (1982), 199 Mont. 295, 300, 648 P.2d 

1176, 1178-179. 

The basis of Brookings' argument appears to be that this kind 

of accident cannot happen absent negligence. Brookings was hurt 

and somebody had to be at fault. Brookings produces no evidence 

to support this contention. Brookings cites Aemisegger v. Herman 

(1985), 215 Mont. 347, 697 P.2d 925, for the proposition that a 

defendant is negligent as a matter of law when he violates basic 

traffic rules, such as yielding the right-of-way or failing to take 

the conditions of the highway into consideration. Aemiseqqer does 

not stand for the proposition, as Brookings suggests, that because 

there is an accident, someone must be found negligent. The 

evidence in Aemiseqqer was clear that the defendant was at fault. 

In this case the evidence is conflicting and not at all clear that 

anyone was at fault. 

We hold that the District Court did not err when it denied 

Brookings' motion for a new trial on the basis that the defendants 

were negligent as a matter of law. Affirmed. 

We Concur: / 

Justice Terry N. Trieweiler dissenting: 

I dissent from the opinion of the majority. 

I agree that as a general rule the mere occurrence of an 

accident does not require a finding that negligence caused the 

accident. However, that general rule is not logically applicable 

to the facts in this case. 

The plaintiff, Douglas Brookings, was an innocent passenger 

in a motor vehicle which went out of control, left the highway, and 

rolled over. 

Donald Tigart, the driver of that motor vehicle, blamed his 

loss of control on Richard Thompson's unexpected entrance onto the 

highway from a side street or driveway, and Thompson's failure to 

yield the right-of-way to Tigart. 

Thompson's defense was that Tigart was simply operating his 

vehicle too fast for the existing conditions, and therefore, was 

unable to control his vehicle when Thompson entered the highway, 

even though he should have been able to do so, based on their 

respective locations at the time. 

No one alleges that the plaintiff contributed in any way to 

the cause of the accident. Neither did any witness or any party 

blame any person other than Tigart or Thompson for what occurred. 

This accident could only have occurred because of one of the 

two previous explanations. Either Thompson failed to yield the 

right-of-way to Tigart, or Tigart was going too fast for the 

existing icy conditions. 
If Thompson failed to yield the right-of-way to Tigart, then 

he violated § 61-8-341, MCA, which provides in relevant part that: 

The driver of a vehicle shall stop . . . at the entrance 

to a through highway and shall yield the right-of-way to 

other vehicles . . . which are approaching so closely on 

said through highway as to constitute an immediate hazard .... 

If the accident occurred because Tigart was operating his 

vehicle on an icy road at a speed which left him unable to control 

the vehicle when necessary, then he violated 5 61-8-303(1), MCA, 

which provides in relevant part that: 

A person operating or driving a vehicle of any character 

on a public highway of this state shall drive it in a 

careful and prudent manner, and at a reasonable rate of 

speed no greater than is reasonable and proper under the 

conditions existing at the point of operation, taking 

into account the . . . condition of surface, and freedom 

of obstruction to view ahead . . . . 

The accident in which the plaintiff was injured could not 

logically have occurred unless one of the above statutes was 

violated. Violation of either statute was negligence per se. 

Aemisegger v. Herman (1985), 215 Mont. 347, 697 P.2d 925, 

The evidence may have been conflicting. However, that did not 

absolve the jury of its obligation to resolve the evidence by 

deciding that one or both of the defendants was negligent. 

I would remand this case to the District Court for retrial, 

based on instructions to the jury that its sole responsibility is 

to decide which of the defendants was at fault for the accident in