### No. 14933

IN THE SUPREMECOURT OF THE STATEOF MONTANA 1980

MICHAEL WORKMANAS THE PERSONAL REPRESENTATIVE OF 

### THE ESTATE OF SUSAN E. WORKMAN, Plaintiff and Appellant,

McINTYRE CONSTRUCTION COMPANY, S. BIRCH, INC., and the STATE OF MONTANA, and RICHARD BLIESENER, Defendantsand Respondents.

Appeal from: District Court of the Fourth Judicial District, In and for the County of Missoula Honorable Jack L. Green, Judgepresiding. Counsel of Record: ForAppellant: Milodragovich, Dale and Dye,Missoula, Montana Lonnie J. Dale argued,Missoula,Montana For Respondents: Boone, Karlberg and Haddon,Missoula, Montana SamHdddon argued, Missoula,Montana Garlington,Lohn and Robinson, Missoula, Montana Gary Graham argued, Missoula,Montana Carolyn Clemens argued,Missoula,Montana Noel Larrivee,U of M 

### Law School,Missoula, Montana

Submitted: May 23, 

### 1980 Decided: 

# 8EP1 

# 0

# 1980

Filed:

# SEP

# 10

## WOHonorable John M. McCarvel, DistrictJudge, sitting inplace of Mr. Justice Daniel J. Shea, delivered the Opinion of the Court.

Plaintiff appeals from ajudgment after ajury verdict in favor of all three defendants and a denial of hismotion for a

new trial inthe District Court of the FourthJudicial District, inand for the County of Missoula. The agreed facts are as follows: Defendants, McIntyre Construction Company and S. Birch, Incorporated, as joint venturers, were under contract from the State of Montana towiden and resurface approximately ten miles ofU. S. Highway 93 starting three or four miles south of Arlee, Montana. Defendants, McIntyre ConstructionCompany and S. Birch, Incorporated, applied one lift of asphalt paving to the surface ofthe highway, leaving a dropoff on the west side of the highway shoulder. On June 18, 1976, at approximately six-thirty p.m., defendant Richard Bliesener was driving south on that portionof U. S. Highway 93 that had been resurfaced by defendants McIntyre Construction Company and S. Birch, Incorporated. Plaintiff Michael Workman was operating a vehicle inwhich hiswife, Susan Workman, and daughter, Reminisa Workman, were passengers, driving north on that portion of U. S. Highway 93 that was being resurfaced. The rightwheels of defendant Richard Bli esener's motor vehicle went offthe right edge of the pavement lift and, ultimately, the Bliesener vehicle and the Workman vehicle collided. Susan Workman died as a result of the injuries sustained inthe collision. The two causes of action consolidated for jury trial were by the plaintiff inhis representative capacity as personal representative of the estate of Susan Workman, hisdeceased wife, and as next friend of Reminisa Workman, his daughter. The transcript of the testimony and briefsof counsel confirmthe following facts: 

### -2-

### 1. There was only one sign observable to southbound traffic located one or two miles before the accident scene which read: "Road Construction, 10miles." 

### 2. There was a four-inch drop off the pavement on the outside of the southbound lane. 3. Defendant Bliesener's vehicle veered sharply to the left intothe path of the Workman vehicle inthe northbound traffic lane when Bliesener turned leftto get his right wheels back onto the pavement. 

### 4. There were no contentions by defendants that Michael Workman was inany way negligent inoperating his vehicle. 5. McIntyre ConstructionCompany, S. Birch, Incorporated, and the State based their defense on the negligence of Bliesener

as the proximate cause of the accident. 6. Bliesener based his defense on the negligence of McIntyre Construction Company, S. Birch, Incorporated, and the State as the proximate cause of the accident. 

### 7. No speed limit signs were posted. 

### 8. The flow of traffic through the area was moving at55 miles per hour, the same speed as Bliesener's vehicle. 

### 9. There were no warning signs or devices of the fourinch drop off the pavement or centerline markings channel

### ing traffic. 10. There were no contentions that an Act of God was involved nor that any emergency existed, or that there was an involuntaryviolation of a statute due to circumstances beyond the control of the defendants. The following are the issues presented for review: 

### 1. Was the evidence insufficient as a matter of law to support a verdict infavor of all the defendants? 

### 2. Did the court err inadmitting into evidence defendant State of Montana's exhibit 13A, a movie, which was not listed as

an exhibit inthe pretrial order? 3. Did the court err inpermitting defense counsel to -3-mention plaintiff's remarriage during voir dire of the jury? 

### 4. Did the court err ingiving ajury instruction which stated that the contractor's conformance to the Department's instructions incarrying out work on the project was relevant to the determination of whether the contractor breached itsduty of

care toward the plaintiffs? 

### 5. Should Highway Patrolman Billedeaux have been permittedto testify as tothe adequacy of the signing at the scene ofthe accident? 

### 6. Didthe trial court err inrefusing to admit into evidence the Manual on UniformTraffic Control Devices for Streets and Highways? 7. Did the court err inrefusing to admit evidence of the construction contract between the State of Montana and the contractors? 

### 8. Did the court err inrefusing to admit certain demonstrative exhibits presented by the plaintiff?

ISSUE 

### NO. 1: Was theevidence insufficient as a matter of lawto

## sup-- -- --- port- a verdict - infavor ofallthe defendants? 

### --- This issue isnot addressed inview of our holding that the case must be remanded for a new trial as to all three defendants because of the prejudicial admission and exclusion of evidence by the trial court as hereinafter set forth.

ISSUE 

### NO. 2: Didthecourt err inadmitting intoevidence defendant -- 

### -- State

### - ofMontana's exhibit-- 13A, a movie, which was not listedas 

### -- 

### - an exhibit inthepretrial order? - 

### -- The court erred inadmitting into evidence defendant State's exhibit 13A, a six-minute movie filmdemonstrating the effect of driving a 1971 Ford Pinto over an abrupt edge. On March 6, 1979, a pretrial conference was held. Due to the numerous exhibits to be presented at the time of trial theparties agreed that they would confer on the status of various exhibits to be set forth inthe pretrial order. Plaintiff prepared a pretrial order based upon a meeting between the various counsel of the parties and itwas ready for signing April 

### 9, 1979, one week before the trial date. On that date the State for the first time advised plaintiffthat it intended to introduce exhibit 13, a California Department of Transportation report on "The Effect of Longitudinal Edge of Paved Surface Drop-Off on Vehicle Stability", and on that date furnished counsel with copies of exhibit 13. The pretrial order had to be interdelineated to include this exhibit. State's exhibit 13 made reference to movies that were made of tests conducted inmaking the report. The first notice plaintiff had of the State's intentionto introduce any filmexhibits was when the State, initsopening statement, indicated that movie films would be shown to the jury. Exhibit 13A was not listedas an exhibit inthe pretrial order. Immediately after the opening statement, the plaintiff objected to the introduction of any movies for two reasons: 1. They were not listed as an exhibit inthe pretrial order, and 2. The movies were not available for pretrial examination todetermine their relevancy or comparability to the facts and circumstances involved inthis case. During argument on the plaintiff's objection, the court

was advised that exhibit 13A was an edited six-minute summary filmof tests demonstrating the effect of driving a 1971 Ford Pinto over an abrupt edge. The movies referred to inexhibit 13 consisted of a six-hour filmed study utilizing 17,000 feet of film involving light, medium and heavy vehicles and a pickup truck, driven by professional race car drivers at different speeds over different edge heights. Plaintiff requested that if the court were going to admit exhibit 13A, that he should be 

### -5-permitted to view all of the movie test films, since exhibit 13A constituted only a six-minute summary of a six-hour filmtest. The court ruled exhibit 13A admitted upon the court's requirement and the State's assurance that all of the movie films taken during the tests would be shown to the plaintiff. On Monday, April 23, 1979, six days afterthe court's ruling, the State's counsel showed exhibit 13A to all counsel, except counsel for defendant Bliesner. On April 

### 24, 1979, counsel for the State advised the court that the other test filmwas not secured and therefore could not be shown to the parties. Inspite of this, the court permitted exhibit 13A to be shown to the jury by Paul O'Shea, an expert called by the State, whose name had not been listed inthe pretrial order as a witness the State intended to call. The pretrial order 

### "

# . .

# .controls the subsequent course of the action, unless modified atthe trial to prevent manifest injustice." Rule 16, M.R.Civ.P. The whole purpose of the pretrial conference and the pretrial order isto prevent the type of situation that occurred inthis case. Apparently defense counsel for the State started to prepare itsdefense a week before trial. No justification or excuse was offered to show why exhibits 13 and 13A were not mentioned at the pretrial conference held a month before the trial. No explanationwas made by counsel for the Statewhy the entire test filmwas not made available tothe plaintiff after he had assured the court aweek before that the entire test filmwould be made available to the plaintiff. Indeed, counsel for defendant Bliesner was not shown State's exhibit 13A until itwas shown inthe judge's chambers, just prior to itsbeing shown tothe jury. These tactics are contrarytothe letterand spirit of all pretrial discovery which isto prevent surprise, to simplify the issues, and to permit counsel to prepare their case for trial on the basis of the pretrial order. -6-The trial court abused itsdiscretion inadmitting defendant's exhibit 13A under these circumstances. 3 Moore's Federal Practice, 1116.19. Burdis v. Texas and Pacific Ry. Co., (1978), 569 F.2d 320, 323; FirstNational Bank of Madison v. Harrison (1970), 205 Kan. 315, 469 P.2d 344, 346.

ISSUE NO. 3: Did the court err inpermittingdefense counsel tomention 

## -- -- - plaintiff'sremarriage during voir direofthejury? Plaintiff filed a motion inlimine requesting an order of the court prohibiting counsel from informing the jury of the plaintiff's remarriage. The court granted the motion, except permitted counsel on voir direexamination to ask jurors 

### ifthey knew Jolene Workman without reference to plaintiff's marriage to her. Disregarding the court's order, counsel for the defendants, McIntyre-Birch, asked the entirejury panel the following question: "Ihave just one other question to ask of you; it concerns personnel, people. Are any of you 

# -- and thiswould be addressed to a11 of you who are on the current panel 

# -- are any of you acquainted with Mr. Michael Workman's present wife? Now, her name isJolene Workman; do any ofyou know her?" Evidence of a surviving spouse's remarriage is irrelevant. This isthe holding inthe great majority of courts deciding this question. Annot., 

### 88 A.L.R.3d 926. Cherrigan v. City and County of San Francisco (1962), 262 Cal.App.Zd 643, 69 Cal.Rptr. 42. Kimery v. Public Service Co. of Oklahoma (1977), 562 P.2d 858. The reasons for such a rule isthat damages are determined as of the date of death. Counsel for the defendants assert that the fact of remarriage concerned only damages and since the jury found no liability this isharmless error. Who can say'that the jurors did not consider plaintiff's remarriage indeciding the liability issue, especially inthis case when the jury consisted of ten

women and two men. Similar to efforts to inject insurance coverage into evidence isthe obvious intent hereto showremarriage of the surviving spouse to mitigate or eliminate damages. An admonition by the court to disregard the remarriage 

### will not suffice

# -- "the goose isa1ready cooked." This fact cannot be erased from the minds of the jurors. The plaintiff, already overburdened with the cost of pretrial discovery and advance fees and transportation expenses of experts and other witnesses waiting to testify, cannot afford, inmost cases, to

move for a mistrial. The defendants, on the other hand, could care less about the plaintiff's additional expenses involved in the event of a mistrial. This tactic of putting the remarriage of the plaintiff before the jury after being ordered not to do so isprejudicial and reversible error.

ISSUE NO. 

### 4: Did the court err ingivingajury instructionwhich 

### -- -- 

### - stated 

### -- that the contractor's conformance 

### -- tothe Department's instructions - incarrying ---- out work on theprojectwas relevant

### - to the determination whether the contractor breached itsduty

care toward the plaintiffs? The trial court gave the following instruction: "In determining whether the contractor breached any duty to the plaintiffs, you are entitledto consider whether it acted inaccordance with the directions and instructions of the State of Montana incarrying out the work on the construction project. Such following of directions and instructions of the State may be considered indetermining ifthe contractor acted reasonably." The trial court did not err ingiving this instruction. Directions and instructions to the contractor by the State if followed by the contractor isone of the considerations that is relevant as to whether or not the contractor acted reasonably. This isnot the same as saying that the contractor isnot liable 

### if he follows the directions and instructions given to him by the State. This fact, together with all of the other facts and circumstances, are to be utilizedby the jury initsconsideration of whether or not the contractor was negligent. The merefollowing by the contractor of directions and instructions by the State does not relieve the contractor of acting as a reasonable, prudent person under the circumstances. Bush v. Wardell (1974), 165 Mont. 312, 528 P.2d 215.

ISSUE NO. 5: Should Highway Patrolman Billedeaux 

## -- have beenpermitted

### - to testify as tothe 

### --- adequacy the signing the 

# -scene accident? The fo11 owing col1 oquy occurred at tria1: "Q. Officer Billedeaux, Iwould suppose that, having been with the Patrol for the fourteen years as of 1976 and having driven the fifty thousand miles, approximate1y, peryear for each year of that service, you would have had an opportunity to observe traffic-control devices placed on Montana roads. 

### A. Yes. 

### "Q. And 

### I would imagine that, with that extensive experience, you would be familiarwith the traffic-control devices placed on Montana roads? A. Yes. "Based upon that familiarity and your experience, do you feel that the road at the time and place of the collision between Mr. Bliesener's vehicle and Mr. Workman's vehicle was adequately signed? "MR. HADDON: Objection, Your Honor. That cal1s for an opinion beyond the province of thiswitness as a matter of law. "THE COURT: 1'11 sustainthe objection. "MR. DALE: Your Honor, the further testimony from Officer Billedeaux would be the incamera proceedings that we discussed earlier. "THE COURT: Very well.

"MR. DALE: Your Honor, for the record, we would liketo make an offer of proof inregard to the testimony concerning Officer Billedeaux's opiniontestimony as to the adequacy of the signs. "THE COURT: Very well. the



### "Q. Officer Billedeaux, based upon your experience with Montana traffic-control devices and your seventeen years as a member of the Montana Highway Patrol, fourteenyears as of 1976, and having driven these fifty thousand miles per year, inyour opinion, was the roadway at the time and place of the collision between 

### Mr.Bliesner's vehicle and Mr. Workman's vehicle adequately signed? A. No. "Q. And upon what do you base that opinion? A. A construction area, inorder to enforce the thirty-five mile limit, must be

# -- have a legend that indicates that thirty-five miles an hour. The motoring public has to be fully aware. 

### If there isa hazard such as this drop-off, there should be something to the effect that the motoring public will know that there isa hazard therewhen they come down the road. "Q. And at the time and place on June 18, 1976, what was present to advise them of this hazardous condition? 

### A. Nothing." The Montana Rules of Evidence provide as follows: "Rule 702. Testimony

## & Experts. 

### Ifscientific. technical

# . or other s~eci a1ized knowledge wili assist the trier of fact to understand the evidence orto determine a fact inissue, a witness qualified as an expert by knowledge, skil1, experience, training, or education, may testify thereto inthe form of an opinion or otherwise." "Rule 704. Opinions on Ultimate Issue. Testimonv inthe formof an o~inion or inference otherwis; admissible isnot objectionable because it embraces an ultimate issue to be decided by the trier of fact." An expert witness may be qualified by professional

### , scientific or technical training, or have practical experience insome fieldor activity conferring upon him a special knowledge not shared by mankind ingeneral, and one who has been engaged for a reasonable time ina particular profession, trade, or calling will be assumed to have the ordinary knowledge common to persons so engaged. Nesbitt v. City of Butte (1945), 118 Mont. 84, 163 P.2d

The opinion of a witness on a material question of science, art or trade inwhich he isskilled isadmissible in evidence. The determination of the qualification of a skilled or expert witnessis a matter largelywithin the discretion of the trial judge, and inthe absence of a showing of abuse, ordinarily will not be disturbed. Graham v. Rolandson (1967), 150 Mont. 270, 435 P.2d 263; Nesbitt v. City of Butte, supra. Highway Patrol Officer Billedeaux was properly qua1

### ified

as an expert, and was inpossession of sufficient facts towarrant the conclusions he stated. Rude v. Neal (1974), 165 Mont. 520, 530 P.2d 428. Expert opinion evidence isadmissible inexplaining the cause of a particular accident. Pachek v. Norton Concrete Co. (1972), 160 Mont. 16, 499 P.2d 766. The trial court abused itsdiscretion inrefusing to allow his testimony.

ISSUE NO. 6: Didthe trial court err inrefusingtoadmit intoevidence 

### -- -- - the Manual - on UniformTraffic Control Devices for Streets and Highways? A11 parties agree that the 1971 federal Manual on Uniform Traffic Control Devices for Streets and Highways (manual) published by the U. S. Department of Transportation had been adopted and was legallyapplicable on June 18, 1976. The manual sets forth certainwarrants or specifications describing the physical requirements necessary to justify the authorization and use of the various warning signs recommended by the manual. Pertinent sections of the manual provide inpart: "1A-4. Inthe Manual sections dealing with the design and application of traffic control devices, the words 'shall', 'should' and 'may' are used to describe specific conditions concerning these devices. To clarify the meanings intended inthis Manual by the use of these words, the following definitions apply: 

### "1. SHALL

# - A mandatory condition. Where certain requirements inthe design or application of the device are described with the 'shall' stipulation, it ismandatory when an installation ismade that these requirements be met. "2. SHOULD 

# - An advisory condition. Where the word 'should' isused, it isconsidered to be advisable usage, recommended but not mandatory. "3. MAY 

# - A permissive condition. No requirement for design or application is intended.

"2A-1. Signs should be used only where warranted by facts and field studies. Signs are essential where specia1 regulations apply at specific places or at specific times only, or where hazards are not self-evident. 

# . ."2A-7. Functionally, signs are classified as follows: "Regulatory signs give notice of traffic laws or regulations. "Warning signs call attention to conditions on, or adjacent to, a highway or street that are potentially hazardous to traffic operations. "Guide signs show route designations, destinations, directions, distances, services, points of interest, and other geographical or cultural information.

"2C-1. Warning signs are used when it isdeemed necessary to warn traffic of existing or potentiallyhazardous conditions on or adjacent to a highway or street. Warning signs require caution on the part of the motorist and may call for reduction of speed or a maneuver inthe interest of his own safety and that of other motorists and pedestrians. Adequate warnings are of great assistance to the vehicle operator and are valuable insafe-guarding and expediting traffic.

# .."

All of the parties and their counsel concede this accident happened on a highway under construction. The manual inPartVI, provides for "Traffic Controls for Street and Highway Construction and Maintenance Operations." Section6A-3 provides inpart: 

# ".

. . It isemphasized that these are minimum desirable standards for normal situations and that additional protection must be provided when special complexities and hazards prevail. The protectionprescribed for each situation shal1 be based on the speed and volume of traffic, duration of operation, and exposure to hazards. 

# .."

Section 6A-4 provides: "The provisions for public protection established herein are for application by (1) State highway department, county, and municipal forces performing construction or maintenance operations on roads and streets, (2) contractors employed inroad or street construction or maintenance under contract

### - to

### any governmental authority

# . . . "These standards, as part of the Manual on UniformTraffic Control Devices, should be adopted by a11 public authorities concerned with highways, and should be given effect by official instructions to employees and by incorporation into the specifications for a11 contracts." (Emphasis added.

### ) Inthis case the only signs erected were length ofconstruction signs located at the limits of the construction project which read: "Road Construction, 10miles." The manual provides inSection 6B-36, inpart, as follows: The Length of Construction sign shall be erected at the limits of any road construction or maintenance job of more than 2miles inextent, where traffic ismaintained through the job. 

# .."

No "Advance Road ConstructionSign" was evident as provided by section 6B-15 which reads inpart: "The Advance Road (Street) Construction siqn shall be located inadvance of the initial-activity or detour a driver may encounter, and is intended for use as a general warning of obstructions or restrictions. It carries the legend ROAD (STREET) CONSTRUCTION (1500) FT. 

# .." (Emphasis added.

### ) No regulatory signs were present as provided inSection 2B-1: "Regulatory signs inform highway users of traffic laws or regulations and indicate the applicability of legal requirements that would not otherwise be apparent. These signs shall be erected wherever needed to fulfil1 this purpose, but unnecessary mandates should be avoided. The laws of many States specify that certain regulations are enforceable onlywhen made known by official signs."

"Regulatory signs normallyshall be erected at those locations where regulations apply. The sign message shall clearly indicate the requirements imposed by the regulation and shall be easily visible and legibletothe motorist concerned." (Emphasis added.) One of the regulatorysigns isthe speed limitsign. Section 2B-13 inthe manual provides inpart: "Speed Limit signs, indicating speed limitsfor which posting isrequired by law, shall be located at the points of change from one speed limitto another. 

# .

# ."

"At the end of the section to which a speed limit applies, aSpeed Limit sign showing the next speed limitshall be erected. 

# .." (Emphasis added.) Section 61-8-203(1), MCA, provides: "Department of highways tosign all state highways. (1) The department of highways shal1 place and maintaintraffic-control devices, conformingtoitsmanual and specifications, upon all stateh-ways it considers necessary to indicate and to carry out this chapter and chapter 

### 9 or to regulate, warn, or guidetraffic." (Emphasis added.) The State and the contractor, during the trial and in their briefs, assert that the single sign "Road Construction, 10 miles" required 

### a speed not inexcess of 35 m.p.h. because of the provision of section 61-8-303(2)(b), MCA, on a highway under construction or repair. Yet all of the traffic was moving at55

On December 1, 1971, the Manual on Highway Traffic Control Devices was adopted by the Montana Highway Commission. The manual was approved by the Federal Highway Administrator as the National Standard for all highways open to public travel in accordance withTitle 23, U.S. Code, Sections 109(b), 109(d) and

Indeciding the Court's opinion inWilliams v. Maley (1967), 150 Mont. 261, 434 P.2d 398, Justice Castles, who likewise wrote the opinion inthe Faucette case, stated: "In the

# ...case of Faucette v. Christensen, 145 Mont. 28, 34, 400 P.2d 883, adriver was charged with-negligence se-for passing within one hundred feet of anintersection, an action prohibited by statute. However, the intersectionwas marked by a broken white line, which under the manual indicates that insuch an area passing ispermitted. This Court asked the question:

I1 I 

# .

# . . Should not the other statutory "rules ofthe road" and the highway markings formally established by the highway commission under statutory authorization have equal dignity? Should not the statutes, then, be construed together and harmonized indetermining questions of negligence. We be1ieve they should.'



### "

# ... It isclear from a reading of the legislation authorizing the Highway Commission toadopt a uniformmanual and authorizing the Commission to sign the highways inaccordance with that manual, that the mere adoption of the manual did not give it a status equal to that of a statute. R.C.M. 1947, 532-2134, authorizes the Highway Commission to sign the highways of the state inconformity with the manual 'as it shall deem necessary.' The same statute makes it unlawful for anyone else to erect signs upon highways. Thus, until the Highway Commission has acted to direct the erection of a sign, there isno duty placed upon anyone to act ina certain manner just because the Manual on UniformTraffic Control Devices would seem toindicate that such a sign should be erected. Without direction by the Highway Commission there isno duty to place a sign." 150 Mont. 266, 268, 434 P.2d at401. InRunkle v. Burlington Northern (1980), Mont.-9 

### -

P.2d 

## , 37 St.Rep. 995, 1002, the Court said: "The Federal-Aid Highway Act of 1973 represents an effort by the federal government to improve the safety of grade crossings, and to provide funding for the same. That act does not lessen inany degree the duty, statutory or common law, of a railroadto maintain a good and safe crossing. The Manual on UniformTraffic Control Devices 

### MU^), promulgated

### by the Montana Highway Department, 

### may

## be considered

### - as - a 

### - stan- dard or norm tobe used fortraffic control 

### ------- devises. It does not have the force and effect of law indetermining the duties and responsibilities of a railroadwith respect to the safety of grade crossings. Thus the fact that the Montana Highway Department or the town of Troy had not officially acted to requirethe railroadto provide traffic control devices other than the crossbucks isnot initself sufficient to absolve the railroad of itscommon lawduty, if it existed, to provide a good and safe crossing. Inaddition itwas ajury question whether under the circumstances known tothe railroad at and before this accident, the railroad itself should have reduced the speed of itstrains over theThird Street crossing. This Court stated these principles inJarvella v. I 

### Northen Pac. Ry. Co. (1935), 101Mont. 

### 3i3, 53 P.2d 446, 450, when it said: "'Itisnoteworthy, inpassing, that the mere fact that no statute exists, or that no order by an authorized person has been made requiring gates or other safety devices at crossings, will not ips0 facto relieve the railway company from the duty of providing safety devices at crossings sufficientlydangerous to require them.

### ' "We considered the status of the Manual on UniformTraffic Control Devices inWilliams v. Maley (1967), 150 Mont. 261, 267-69, 434 P.2d 398, 401-02. There this Court said that the manual did not have a status equal to statute. We also made reference to the fact that itwas unlawful for anyone other than the State Highway Commission to erect signs on highways. However, neither that case, nor section 61-8-203, MCA, should be read to mean that a railroad inthe exercise of ordinary care may not itself place warning devices and signs upon itsown property or volunteer to place the same on state roadways upon notificationto the State Highway Department. It would not thereby either commit a misdemeanor or create a public nuisance." (Emphasis added.) Inthis case, inaddition to the provisions of the manual which apply to both the State and the contractor, the contractbetween the State and the contractor provides: "VIII. SAFETY; ACCIDENT PREVENTION "Inthe performance of this contract, the contractor shall comply with a11 applicable Federal, State and local laws governing safety, health and sanitation. The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions, 

### --- on his own re~~onsib-ility,or as the State highway department contracting7fficermay determine, reasonably necessary to protect the lifeand health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract." (Emphasis added.) It is hard to conceive how a contractor could be charged with a misdemeanor or with creating a public nuisance with this provision inthe contract. What was pronounced inRunkle applies with equal import here tothe State and tothe contractor. The trial court erred inrefusing to admit the Manual on UniformTraffic Control Devices forStreets and Highways. See Schaeffer v. Kansas Dept. ofTransp. (Kan. 1980.), 608 P.2d 1309. The plaintiffoffered the entire manual inevidence. When this case isretried, the plaintiff should be required to introduce only those portions of the manual that have relevancy to this case.

ISSUE NO. 

### 7: Didthe court err in 

### -- refusing admit evidence ofthe -- construction contract between the State Department -- and the contractors? Plaintiff, incross-examining a defendant contractor's witness, sought to introduce certain provisions inthe contract between the State and the contractor regarding certain traffic control devices mentioned ina payment schedule inthe contract that could have been available and utilized by the contractor or theState at the job site. Plaintiffargues that since a payment schedule for these devises was included inthe contract, that this constituted notice tothe State and the contractor that these devices could have been utilized prior to the accident.



# - 16

# -These were ye1low and white reflectorized temporary striping tapes. The court permitted these exhibits to be admitted for demonstrative purposes but refused the introduction of the provisions of the contract. The trial court did not err inrefusing to permit the introduction of the contract provisions sought to be introduced by the plaintiff. The question iswhether or not certaintraffic control devices should have been used by the Stateor the contractor initsexercise of due care under the circumstances. The provision inthe contract providing a payment schedule 

### ifthe devices were used has no probative value and is irrelevant.

ISSUE NO. 

### 8: Didthe court err inrefusingtoadmit certain demonstra

### -- -- 

### - tiveexhibits presented the plaintiff? Plaintiffoffered inevidence an "abrupt edge sign" and a photograph of a stretch of highway which included the "abrupt edge sign" for demonstrative purposes. The tria1 court refused toadmit both exhibits. The exhibits were intended to illustrate plaintiff's expert's testimony that this traffic control "abrupt edge" sign isused where such a situation exists. Exhibits for demonstrative purposes do not depend upon whether or not the objects they portray could be described in words, but on whether or not itwould be helpful to permit the witness to supplement his description by their use. 29 Am Jur 2d, Evidence 9785. Exhibits are inadmissible inevidence for demonstrative purposes only when they do not illustrate

or make clearer some issue inthe case--that 

### is, where they are irrelevant or immaterial--or where they are of such a character

as to prejudicethe jury. 29 Am Jur 2d, Evidence 9785. These exhibitswere relevant and would not prejudice the jury. To refuse to admit plaintiff's exhibits for demonstrative purpose

was an abuse of discretion by the trial court. Brown v. North



# - 17 

# -Am. Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711, 

### 35 St. Rptr. 194. For the foregoing reasons, the judgment isreversed as to all three defendants and the cause remanded for a new trial.

Hon. John M. McCarvel

### , District Judge, sitting inplace of Mr. Justice Daniel J. Shea. We concur:

Chief mtice 

## (\