### No. 83-101 IN THE SUPREME COIJRT 

### OF THE 

### STATE OF MONTANA 

### 1983



### CHARLES SHANNON, Plaintiff and Respondent,

DONALD 

### E. HULETT, EAST VALLEY TRUCKING and STEVE LUKSHA, Defendants andAppellants

Appeal from: District Court of theFifthJudicial District In and For the County ofJefferson Honorable Frank D&, 

### Judge presiding. BL+==? trJ 

### Counsel of Record: ForAppellant: 

### Corette, Smith, Polhman C, 

### Allen, Butte, Montana Robert M. 

### Carlson and

### R,D. Corette, Argued For Respondent: 

### John

### L. Peterson, Butte, Montana JohnL. 

### Peterson, Argued

Submitted: June 6, 1983 

### Decided: August 16, 1983Mr. Chief JusticePrank 1. Haswell delivered the 3pinion of the Court. Donald Hulett, d/b/a East Valley Trucking, and Steven Luksha appeal the Jefferson County District Court order grantingCharles Shannon a new trial. Wereverse. On September 22, 1979, Shannon was driving his 1966 Chevrolet nortnbound on 1-15 atabout 35 m.p.h. Luksha was driving a 1972 Kenworth truck with a pup-trailer, owned by hisemployer Hulett, southbound on 1-15 approximately 40 to 45 n.p.h. Both drivers 

### were on a two-lane portion of 1-15 just south of Boulder, which in many places was in poor condition. The record indicates thatbecause of the rough shoulder, Luksha was very closetothe centerline. Just afterhe entered the two-lane highway, five oncoming cars passed by him, and he checked their progress inhis rearview mirror. When he looked forward he saw Shannon cutting through an approaching curve one or two feet in his lane of travel. Luksha testified that lt appeared a head-on collision was ~mminent,sohe swerved histruck tothe right. This sudden actionand the rough road caused thetruck toleanbadly and Luksha almost lost control. Italsocaused thepup-trailer to swing out into Shannon's lane of travel. The left side of the trailer collidedwith the front and topof Shannon's vehicle. Shannon suffered serious injury. Shannonbrought an action inJeffersonCounty District Court against appellants seeking damages arising from the accident. By special verdict thejury found appellantsnot "guilty of negligence which was the proximate cause of the claimed damage." Thereafter, Shannon moved the court to set aside thejury verdict and to grant a new trial. The District Court granted a new trial without supporting memorandum. An appeal was brought tothisCourt which filed its opinion on January 19, 1983. This Court dismissed the appeal without prejudice and remanded the case to the District Court for reconsideration and entry of an order stating the grounds for granting a new trial in compliance with Rule 59(f), M.R.Civ.P. Shannon v. Hulett (1983), Mont. 

## , 656 P.2d 825, 40 St.Rep. 35. The remittitur was filed in District Court on February 1, 1983. On that same day, District Judges Frank Blair (retired) and Frank Davis complied with this Court's order by filing memoranda in support of the order granting Shannon's motion for a new trial in the District Court for Jefferson County. Luksha and Bulett appeal the order granting a new trial. They raise two issues for our consideration: 1. Was the District Court's order and memorandum in support of order procedurally proper and indicative of actualconsideration given to

### itsdecision? 2. Did the District Court abuse 

### its discretion by granting a new trial? We reverse on the ground that the District Court abused 

### its discretion in setting aside the jury verdict. The firstissue 

### is thusmoot, and 

### wedonotaddress it. Essentially, appellants contend that a new trialmay not be granted if there is substantial evidence to support the jury verdict. Here, there are sufficient facts to support the jury's verdict thatLuksha was free from negligence, and the District Court abused its discretion in settingaside the verdict.Shannon argues that there is no conflicting evidence which can support the jury determination that Luksha 

### was free from negligence. He was negligent asa matter of law when the trailer crossed into Shannon's lane of travel. Shannon's inluries 

### were proximately caused by such negligence. The standard for granting a new trial 

### is well established in Montana. If there 

### is substantial evidence supporting the verdict, 

### a new trial may not be granted. Srenberg v. Nee1 (1980), Mont

# . ,613 P.2d 1007, 37 St.Rep. 1170; Lyndes v. Scofield (1979), 180 Mont. 177, 589 P.2d 1000; Kincheloe 

### v. Rygg (1968), 152Mont. 187, 448P.2d 140; Hinton v. Peterson (1946), 118Mont. 574, 169P.2d 333. Neither may a District Court grant a new trial simply because it believed one line of testimony different frorn thatwhich thejury believed. Yerkich v. Opstra (1978), 176 Mont. 272, 577 P.2d 857; In re Estate of Hardy (1958), 133 Mont. 536, 326P.2d 692. When a DistrictCourtdeniesa motion fora new trial,



### we are

### less inclined todisturbthatorder because the lower court has indicated faith in the jury verdict. However, when a DistrictCourt 

### ispresented with evidence infavor of tne verdict but proceeds to grant 

### a new 

### trial, it 

### is our duty to 

### test the evidence against the verdict. Campeau 

### v. Lewis (1965), 144Mont. 543, 549, 398 P.2d 960, 963. We find there is sufficient evidence to support the jury's verdict. The evidence is undisputed that Shannon, while drivingnorthbound on 1-15, cutthrough a curve inthe opposing lane. Luksha, approaching Shannon, responded by swerving to the right toavoid a head-on collision. Therewas no evidence indicating that Luksha was driving unsafely prior to observing Shannon or that he was negligent in any otherway. By special verdict thejury found that neither Luksha

nor his employer were guilty of any negligence which proximately caused the claimed damage. Court's InstructionNos. 3 and 4 state: "Every person 

### is responsible for injury to the person or property of another, caused by want oiordinary careor skill. "When used in these instructions, negligencemeans want of such ordinary careor skill. Such want of ordinary care or skillexists when there 

### is a failure to do that which a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doingwhat suchperson under the existing circumstances would not have done." InstructionNo. 3. "You are instructed that a violation of 

### law is of no consequence unless it was 

### a proximate cause of (or contributed as a proximate cause to) an injury found by you to have been suffered by the Plaintiff." InstructionNo. 4. Under the factsof the case and within the parameters of the above instructions thejury could have, firstof all, found Luksha committed no negligence. Therewas no evidence indicating he was negligent prior totaking evasive action. Further, Luksha acted as any reasonable and prudent person would when facing an imminent head-on collision--he moved outof theway. Secondly, the fact that Shannon was driving into the oncoming lane when approaching Luksha further supports a finding that such action was the proximate cause of ShannonIsinjuries. We vacate the order granting a new trial. We rein-

### statethejury verdict and 

### thejudgment entered thereon. 

# ~LJk.8 t

# $&A, Chief 

### Justice

We 

### concur:

### Mr. Justice Frank B. 

### Morrison specially concurs as follows: I concur in the result but not in all that is said in themajority opinion. The majority dismisses negligence on the part of the defandant withoutdiscussing defendant's statutory violation. Is the majority taking the position that defendant was involuntarily across the centerline in the wrong lane of traffic? If so there is support in the law excusing the statutory violation. However, if the defendant made a calculated judgment to leave his lane of traffic for some reason, a holding that a statutory violation is excused represents new law in Montana. The issue is concluded without discussion. The majority simply states that the defendant's conduct was to be considered by the jury under the "reasonable and prudent person" standard. The defendant's statutory violation is ignored. I would reverse the granting of a new trial and reinstate the defense verdict for the reason that the jury could have found that any negligence on the part of the defendant was not a proximate cause of the accident. The record in this case supportsthe defenseverdict on the basis that plaintiff's conduct, rather than the conduct of defendant, formed the sole proximate cause of the accident and consequent injuriesto the plaintiff.

### Mr. JusticeDanielJ. 

### Shea,dissenting:

I

### would affirm the order granting a new trial. The statutory violation of defendant driver is clear--the tail end of his tractor-trailer rig was on the wrong side of the road at the time of collision. I 

### would further hold as a matter of law that at least one proximate cause of the accidentwas thepup-trailer being on the wrong side of the highway at the time of impact. Regardless of plaintiff's initialnegligence,he had a right to expectthat when he recovered from his own driving error that his own lane of trafficwould be clear. It is not necessary that the driver of the tractor-trailer rig be actively negligent. Here,he may not have been. He swerved his rig to avoid the plaintiff's vehicle which was initially in the wrong lane of traffic. However, the effect of swerving the rig was to swing the pup-trailer into plaintiff's lane of travel. Ihave no doubt that a contributing proximate cause of the accidentwas the failureof thedefendant driver tohave his rig in theproper lane of travel. There being negligence (a statutory violation) and there being negligence which was at least a contributingproximate cause of the accident, the jury could not properly absolve the defendant of all responsibility. Therefore, the trial court was correct in granting a new trial. The distance between the frontbumper of the tractor to the rear bumper of the pup-trailer was 73 

### feet, 6 

### inches. Thepup trailerwashooked to themain trailer with a 15 foot tongue that produced a "swivel at the back of the truck." This combination rig made it an extremely long and dangerous

### highway vehicle, and the danger was multiplied many times

over by the fact that the tractorwaspulling 10,000 gallons of gasoline. Plaintiff, an 87 

### year old man, regardless of his own initial negligence in swerving onto the lane of the tractor-trailer,had a right to assume that oncehe recovered from his own driving error he would not be confronted with the pup-trailer blocking inpart his lane of travel. The extreme length of the tractor-trailer rig made it impossible for the defendant driver to have his rig under control. Although federal and state laws seem to be ever more permissive as to allowable tractor-trailer lengths,the traffic safety laws must also be interpreted to protect the driving public who meet these monsters on the highway. We have failed in thatdutyhere.