No. 83-101 

IN THE SUPREME COIJRT OF THE STATE OF MONTANA 

19 8 3 

CHARLES SHANNON, 

Plaintiff and Respondent, 

DONALD E. HULETT, EAST VALLEY TRUCKING and STEVE LUKSHA, 

Defendants and Appellants 

Appeal from: District Court of the Fifth Judicial District 

In and For the County of Jefferson 

Honorable Frank D&, Judge presiding. 

BL+==? t rJ 

Counsel of Record: 

For Appellant : 

Corette, Smith, Polhman C, Allen, Butte, Montana 

Robert M. Carlson and R, D. Corette, Argued 

For Respondent : 

John L. Peterson, Butte, Montana 

John L. Peterson, Argued 

Submitted: June 6, 1983 

Decided: August 16, 1983 
Mr. Chief Justice Prank 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 

granting Charles Shannon a new trial. We reverse. 

On September 22, 1979, Shannon was driving his 1966 

Chevrolet nortnbound on 1-15 at about 35 m.p.h. Luksha was 

driving a 1972 Kenworth truck with a pup-trailer, owned by 

his employer 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 that because of the rough shoulder, Luksha was very close to the centerline. Just after he 

entered the two-lane highway, five oncoming cars passed by 

him, and he checked their progress in his 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, so he swerved his truck to the right. This sudden 

action and the rough road caused the truck to lean badly and 

Luksha almost lost control. It also caused the pup-trailer 

to swing out into Shannon's lane of travel. The left side 

of the trailer collided with the front and top of Shannon's 

vehicle. Shannon suffered serious injury. 

Shannon brought an action in Jefferson County District 

Court against appellants seeking damages arising from the 

accident. By special verdict the jury found appellants not 

"guilty of negligence which was the proximate cause of the 

claimed damage." 

Thereafter, Shannon moved the court to set aside the 
jury verdict and to grant a new trial. The District Court 

granted a new trial without supporting memorandum. An 

appeal was brought to this Court 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 

actual consideration given to its decision? 

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 first issue is thus moot, and we do not address it. 

Essentially, appellants contend that a new trial may 

not be granted if there is substantial evidence to support 

the jury verdict. Here, there are sufficient facts to 

support the jury's verdict that Luksha was free from negligence, and the District Court abused its discretion in 

setting aside 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 as a 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), 152 Mont. 187, 448 P.2d 

140; Hinton v. Peterson (1946), 118 Mont. 574, 169 P.2d 333. 

Neither may a District Court grant a new trial simply 

because it believed one line of testimony different frorn 

that which the jury believed. Yerkich v. Opstra (1978), 176 

Mont. 272, 577 P.2d 857; In re Estate of Hardy (1958), 133 

Mont. 536, 326 P.2d 692. 

When a District Court denies a motion for a new trial, 

we are less inclined to disturb that order because the lower 

court has indicated faith in the jury verdict. However, 

when a District Court is presented with evidence in favor 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), 144 Mont. 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 driving northbound on 1-15, cut through a curve in the 

opposing lane. Luksha, approaching Shannon, responded by 

swerving to the right to avoid a head-on collision. There 
was no evidence indicating that Luksha was driving unsafely 

prior to observing Shannon or that he was negligent in any 

other way. 

By special verdict the jury found that neither Luksha 

nor his employer were guilty of any negligence which proximately caused the claimed damage. 

Court's Instruction Nos. 3 and 4 state: 

"Every person is responsible for injury 

to the person or property of another, 

caused by want oi ordinary care or skill. 

"When used in these instructions, negligence means want of such ordinary care or 

skill. Such want of ordinary care or 

skill exists 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 

doing what such person under the existing 

circumstances would not have done." Instruction No. 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." Instruction No. 4. 

Under the facts of the case and within the parameters 

of the above instructions the jury could have, first of all, 

found Luksha committed no negligence. There was no evidence 

indicating he was negligent prior to taking evasive action. 

Further, Luksha acted as any reasonable and prudent person 

would when facing an imminent head-on collision--he moved 

out of the way. 

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 

Shannon Is injuries. 

We vacate the order granting a new trial. We rein- 
state the jury verdict and the judgment 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 

the majority opinion. 

The majority dismisses negligence on the part of the 

defandant without discussing 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 supports the defense verdict on the basis 

that plaintiff's conduct, rather than the conduct of 

defendant, formed the sole proximate cause of the accident 

and consequent injuries to the plaintiff. 
Mr. Justice Daniel J. 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 accident was the pup-trailer being on the wrong 

side of the highway at the time of impact. Regardless of 

plaintiff's initial negligence, he had a right to expect that 

when he recovered from his own driving error that his own 

lane of traffic would 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. I have no doubt 

that a contributing proximate cause of the accident was the 

failure of the defendant driver to have his rig in the proper 

lane of travel. There being negligence (a statutory 

violation) and there being negligence which was at least a 

contributing proximate 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 front bumper of the tractor to 

the rear bumper of the pup-trailer was 73 feet, 6 inches. 

The pup trailer was hooked to the main 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 tractor was pulling 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 once he recovered 

from his own driving error he would not be confronted with 

the pup-trailer blocking in part 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 that duty here.