### No. 80-476 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1982

DOROTHYBARPqEYEF?,DAVIDAND SHARON COOK,

### KEVINAND JANICE COUGHLIN,et al., PlaintiffsandAppellants,

THEMONTANA POWERCOIQANY, Defendantand Respondent.

Appeal from: DistrictCourtof the Fourth Judicial ~istrict, Inand for theCounty of Missoula HonorableJohnHenson,Judgepresidinq Counsel of Record: ForAppellants: Williams LawFirm,Missoula,Montana Shelton

### C. Williams ar(sued,l\lissoula,Montana Richard Ranney argued, Missoula,Montana Noel K. 

### Larrivee argued, Missoula,Montana For Respondent: 

### Garlinaton,Lohn & 

### Robinson, Missoula,Montana Gary L. 

### Graham argued, Missoula,Montana ShermanV. 

### Lohn argued, Missoula,Montana

- -

### Submitted: Uctober 2b, 1982 

### Decided: January 17,1983 Filed: 

## 'JAil

## i la

## 1983Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court.

Plaintiffs appeal from an adverse jury verdict and judgment entered thereon by the Fourth Judicial District Court of the Stateof Montana. 

### We aff

### irm. On July 16, 1977, a grass and forestfireburned 

### a large area inwhat is known 

### as Pattee Canyon adjacent toMissoula, Montana. Property damage resulting from the fire gave impetus 

### to these actions filed against the Montana Power Company. Trial of the actions commenced July 8, 1980 and continued through September 12, 1980, duringwhich period there

### were thirty-three trial days. A verdict

### was rendered in favorof the defendant and judgment 

### was entered on that verdict on September 17, 1980. Post-trial motions 

### were heard and denied by the District Court on November 7, 1980. On December 3, 1980, the plaintiffs filed 

### a notice of appeal. Numerous issues are presented on appeal. Since the first issue concerns sufficiency of the evidence, 

### we begin with a discussion of the record in this

### case. Testimony 

### is necessarily capsulized and, because sufficiency of evidence is raised and factual issues 

### were resolved in favor of the Montana Power Company, the facts 

### set forth are presented in 

### a posture 

### most favorable todefendant. The powerline, here in question, 

### was established with three 

### wires on the upper level and a neutral 

### wire a short distance below. Atthe time in question, an old control cable 

### was being removed and a new figure eight control cable had been installed. The old control cable was attached to the poles by ropes. The westand center-phase 

### wires were not energized; the eastphase was hot. The new control cable had a minimal current, and the old control cable and the neutral 

### wire were not energized. The evidence disclosed that power outages had been experienced prior 

### to the fire. Atone point, a power company serviceman found that the old control cable had contacted theeast-phase conductor. To eliminate future problems, the old control cable was lowered. Following lowering of the cable the power outages continued but 

### were experienced less frequently. The temperature 

### at the time of the fire 

### was about 

### 94°F. There 

### was 

### a wind blowing in the area of the origin of the fire from

### west to east. Various estimates 

### were given about the origin pointof the fire,varying from fifty

### to eighty feetfrom 

### a point

on the ground directly beneath the 

### closest phase of the powerline. Shortly before the fire, witnesses observed children in the general 

### area who 

### were noted to be playing with firecrackers. Post-fire investigation revealed a matchbook and match, and a cigarette lighter in the 

### area where the fire originated. Plaintiffs sought to establish that the old control cable made contact with the east-phase conductor

## , thereby emitting sparks which caused the fire. Plaintiffsestablished burn-marks

or arc-marks on the east-phase conductor at approximately the center of the span to the west of the fire origin 

### area. Both sides produced expert testimony. Plaintiffsl expert testimony sought to prove that sparks generated by defendant's powerline caused the fire. Defendant's expert testimony refuted this contention by offering evidence that the arc-marks existed prior 

### to the day when the fire started and further sought to prove that any sparksproduced by contact between the east-phase conductor and the control cable would not maintain sufficient heat intensity to ignite a fire at the point of origin of the fireinquestion. The issues on appeal are: (1) Whether there is sufficientevidence to support the verdict? (2) Whether defendant's primary expert witness should have been permitted to testify and whether the court erred inrulings pertaining 

### to histestimony? (3) Did the trialcourt 

### err infailing to exclude witnesses?(4) Was prejudicial 

### error committed by allowing opinion evidence of two laywitnesses? (5) Did the trial court err in failing 

### to order the production of statements given before trial by 

### two witnesses? (6) Was 

### error committed in instructing the jury? (7) Whether the trial court abused 

### its discretionby failing to grant a new trial on the basis of newly discovered evidence? SUFFICIENCYOF THE EVIDENCE

-- - -

-- ---- - --- ---- -- - -- - Motions to 

### set aside jury verdicts 

### as not supported by the evidence 

### are proper onlywhen there is a complete absence of any credible evidence in support of the verdict. Allevidence and allinferences drawn therefrommust be considered ina light

### most favorable to the adverse party. The courts will exercise the greatest self-restraint in interfering with the constitutionally mandated processes of jury decision. Jacques v. Montana National Guard (1982), -- -- Mont

# . - - 

### , 649 P.2d 1319, 1325-1326,

If thisrecord contains admissibleprobative evidence to support defendant on either absence of negligence 

### or failure of proximate cause, the verdict cannot be disturbed on a sufficiency basis. Here, defendant offered expert testimony which, if believed, would permit the jury to find for defendant. The question then centers on the admissibility of that testimony. ADMISSIBILITY OF DEFENDANT'S EXPERT TESTIMONY - -- - - ----- -- -- --- ---- - --- --- --- Defendant produced Harry Czyzewski, as its principal expert witness. Mr. Czyzewski 

### s testimony resulted in several allegationsof errorpresented on thisappeal. Through Mr. Czyzewski, defendant offered testimony that the arc-marks found on the east-phase conductor existed prior to the date upon which the subject fire occurred. The basis of the testimony involved application of a "corrosion analysis." Plaintiff objected 

### to this testimony on the basis that corrosion analysis 

### was not recognized by the scientific community. The personal qualifications of the expert 

### are well-documentedin the record. Mr. Czyzewski has a master's degree in metallurgical engineering and has worked as an independent consultant since 1946. He is a fellowof the American Instituteof Chemists; he has won designation as the professional engineerof the year in Oregon; he 

### was the first chairman of the combined Northwest Regional Industrial and Minerals Conference; he has authored orco-authored a 

### series of technical papers on corrosion that were published 

### or were delivered nationallyattheNational Associationof Corrosion Engineers. Part of the analysis accomplished under the supervision of the witness involved consideration of the corrosion film on the arc-marks found on the east-phase conductor and on the old control cable directly 

### west of the fire-origin area. Mr. Czyzewski testified there 

### were numerous scientific articles considering corrosion 

### rates and thathe, personally, had long years of experience in examining corrosion films and corrosion characteristics. Based upon the foundation, the 

### trial court permitted the witness 

### to conclude that the arc-marks on the linespredated the Pattee Canyon fire. This testimony 

### was not rebutted by testimonypresented by plaintiffs. Plaintiffscontend thatthe areaof corrosion analysis 

### is not generally accepted orrecognized by the scientific community and that any testimony concerning corrosion analysis 

### is too speculative to be admissible. Plaintiffs further argue that this 

### witness

## ' testimony was received upon insufficient foundation. Rule 702, M.R.Evid., governs admissibility of expert 

### testimony. Itprovides: "If scientific, technical or other specialized knowledge will 

### assist the trier of fact to understand the evidence

### or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training oreducation may testify thereto in the form of an opinion 

### or otherwise

# ."

At one 

### time before expert testimony 

### was received, the courts required that foundation be laid showing thatthe testimony to be offered involved 

### a field of science which had gained "generalacceptance" by the scientific community. See Frye v. United States (D.C.Cir. 1923),293 F. 1013. There has been 

### a trend 

### to liberalizethe admission of expert testimony and the rule enunciated in - Frye -. . has been eroded. Weinstein states: "Viewed against this background, Rule 702's failure to incorporate a general scientific acceptance standard, and the Advisory Committee's Note's failure 

### to even mention the Frye case must be considered significant. The sii<-nce of the rule and itsdrafters shouldbe regarded as tantamount to an abandonment of the general acceptance standard." (footnote omitted) 3 J. Weinstein and M. Berger, Weinstein's Evidence ~1702[03], at702-16. --- -- - -. -- . - -- -- Wehold that the general acceptance rule is not inconformity with the spiritof the new rules of evidence. 

### We agree with the philosophy articulated in United States v. Baller (4th Cir

# . 1975), 519 F.2d 463, cert. den. 423 U.S. 1019, 96 S.Ct. 456, 46 L.Ed.2d 391, wherein the circuit court of appeals said: "Deciding whether these conditions have been 

### met is normally within the discretion of the trial judge. Absolute certainty of result 

### or unanimity of scientific opinion 

### is not required foradmissibility. 'Every use£ulnew development must have its firstday incourt. And court records 

### are full of the conflicting opinions of doctors

## , engineers, and accountants, to name just a few of the legions of expert witnesses. I Unless an exaggerated popular opinion of the accuracy of a particular technique makes its use prejudicial 

### or likelytomislead the jury, it 

### is better

### to admit relevant scientificevidence inthe 

### same manner as otherexpert testimony and allow its weight 

### to be attacked by cross-examination and refutation." (Citations omitted.) 519 F.2d 

### at466. In Steward v. Casey (1979), 182 Mont. 185, 595 P.2d 1176, thisCourt said: 

### "

# . .

# . Rule 705, Mont.R.Evid. 

## , mandates that the opinion of a qualified expert is admissible, and if opposing counsel believe the opinion is not founded on sufficientdata, cross-examination is the shield 

### to guard against unwarranted opinions. 

# .

# ." 182Mont. 

### at193, 595 P.2d at1180. We find Mr. Czyzewski's testimony to have been sufficiently foundationed to foreclose a finding that the trial court abused 

### its discretion in overruling plaintiffs' objections. Thesearching and adept cross-examination by plaintiffs' counsel provided sufficient assurance that this jury was not necessarily misled orconfused. Plaintiffs also allege error resulting from the trial courtIsreception of evidence from Mr. Czyzewski regarding what

was termed "vibration tests." The basis of plaintiffs1 objections is that the 

### tests were performed under conditions substantially dissimilar at the time of test from the conditions existing atthe timeof the fire. The opinion expressed by Mr. Czyzewski was that under windinduced conditions

### , contact between the eas t-phase conductor and the control cable would be very difficult 

### to achieve. The 

### witness conceded that his 

### test showed it was possible for the lines tocontact. The court, ruling on plaintiffs1 objection, noted that the lines were the same, the pole structures were the same and the basic configuration was the same. The court further indicated thatthere

### were some dissimilarities but thatthe dissimilarities could be adequatelytreated on cross-examination. The conditions under which an experiment is conducted need not be identical to the conditions existing at the time of an accident. Were such a requirement en£orced an experiment would seldom, if ever, be admissible. If the conditions of an experiment are substantiallysimilar

### to the actual occurrence and the experiment will assist the jury in 

### more intelligently considering the issue, then it should be permitted. Variations in conditions may simply go to the weight of the testimony and are properly explored on cross-examination. Breimon v. General Motors Corporation (1973), 8 Wash.App. 747, 509 P.2d 398. There

was no abuse of discretion committed by the trial court here, when Mr. Czyzewski was permitted 

### to testify regarding hisvibration test. Plaintiffsfurther allegeerrorinbeing unduly restricted by the trial court in their voir dire examination testing the foun-dation for Mr. Czyzewski

### 's testimony. However, 

### we have already ruled that the testimony

### was admissible with the foundationpresent in this record. Furthermore, the foundation for this witnessIstestimony 

### was adequately explored in the very lengthy and adroit cross-examination conducted by plaintiffs' counsel. Plaintiffs argue error in the trialcourt's refusal 

### to permit the use of certain exhibits during Mr. Czyzewski's 

### crossexamination. 

### In reviewing the trial court's ruling on admission of illustrative exhibits, 

### we must accord greatdeference 

### to the 

### trial court's discretion. Brown v. North American Mfg. Co. (1978), 176Mont. 98, 576 P.2d 711. Exhibit 16A, offered by plaintiffs, 

### was a chart of weather servicerecords. There 

### were sufficientinaccuracies inthe chart to justify the trial court ruling denying use of the exhibit. The subject 

### matter contained in the exhibit was adequately covered during the cross-examination. Plaintiffsalsoattackthe trial court's ruling which refused to admit plaintiff

### 's exhibits 27AI 27B, and 27C. These exhibits



### were prepared by a lawstudent employed by plaintiffs. This student had a bachelor's degree in business administration, but no degree inan areaof science. Defendant's objection

### was premised upon the witness's lack of foundation to give scientific conclusions contained in the exhibits and for the further reason that the exhibits 

### were not summaries which 

### were admissible under Rule 1006, M.R.Evid. The 

### trial court found that the source 

### material from which the exhibits 

### were compiled constituted sufficient proof and the exhibits themselves were cumulative; further

### , the exhibits 

### were potentially misleading. We find that the trial court properly exercised its discretion in denying admission to theseoffered exhibits. Mr. Czyzewski 

### was paid $189,000 for services performed in connection with this litigation. Defendant offered proof that $51,600 of the charge 

### was for cost inpreparing, giving depositions, and answering interrogatories. Plaintiffs sought to provethat these computations 

### were inerror. Plaint iffsagain offered



### a chart, prepared by 

### a law student, which 

### was identified asexhibit 28B. Objection was made by defendant on the basis that the underlying documents had been placed inevidence and the exhibit



### was cumulative. The objection 

### was sustained. We find no abuse of discretion on the part of the trial court as defendant had adequate opportunity to fully explore all of these facts during Mr. Czyzewski's cross-examination. EXCLUSION

.. OFWITNESSES Plaintiffs contend that the trial court erred in failing 

### to exclude witnesses pursuant 

### to plaintiffst motion requesting sequestration of witnesses. After opening statements and after the presentation of approximately sixteen witnesses, plaintiffs filed theirmotion. The court denied the motion on the basis it

was untimely. Rule 615, M.R.Evid., provides for the sequestration of 

### witnesses upon motion of anyparty. The rule does not indicatewhen the demand must be made. 

### Here, the trial court found that the motion 

### came too 

### late when made after sixteen witnesses had already testified. We find this 

### to be a proper exercise of discretion by the trial judge. Additionally, the witnesses who testified following filing of the motion had been thoroughly deposed and the plaintiffs have not demonstrated prejudice as a resultof failure 

### to sequesterthe witnesses. ADMISSIBILITY OF LAY TESTIMONY -- Plaintiffs claim 

### error in the 

### trial court having received into evidence opinion testimony from two laywitnesses. In evaluating the testimony of these witnesses we must be guided by Rule 61, M.R.Civ.P., which provides in part: 

# ".

.. The court at every stage of the proceeding must disregard any 

### error 

### or defect in the proceeding which does not affect the substantial rightsof the parties." Defendant presented one Olaf Krook who testified thathe 

### saw


### a person run from the direction of the fire at a 

### time he first noticed smoke 

### at the point of the fire's origin. He alsotestified that he had heard firecrackers and he thought some "kid" had started the fire with a firecracker. This testimony is lacking in probative value. However, in view of the voluminous record in this 

### case, we find that any error in admitting such evidence

### was harmless. Defendant 

### also offered the testimony of a Mr. Cameron, who livedonPatteeCanyon Drive below the fire

### area. Cameron stated he observed a red pickup near the origin of the fire. He stated that the pickup was stopped abruptly at the roadblock; that a 

### male person jumped from the back of the pickup, ducked down behind some 

### cars, and ran down the road. Police

### were manning the roadblock. Cameron then testified, over objection, that 

### it appeared tohim as though the person 

### was trying 

### to hide from the police. Again, thistestimony 

### is conclusory and of littleprobativevalue. However, 

### as inthe 

### case of 

### Mr. Krook's testimony, 

### we find the admission of thisevidence to have been harmless inview of the extensiverecord inthiscase. FAILURE TO ORDER PRODUCTION OFWITNESSES STATEMENTS ---- .- - - ---- Plaintiffs urge 

### error in the trial court's failure to order production of the statementsof SusanSolisand CharlesBasacher. A statement was given by Susan Solis on September 8, 1977, on behalf of defendant. Counsel forplaintiffs

### also interviewed the witness. At

### time of trial, thiswitness 

### was interviewed separately by the court who explained her rights with respect to the statement. Defendant agreed that if SusanSoliswanted a copy of her statement, shewould be entitled to it and that if she wished to give a copy to counsel for plaintiff, she had a right 

### to do

so. After a fullexplanation the witness said she did not want a copy of her statement. During cross-examination she testi£ ied that she had seen a copy of the statement and reviewed it prior toher testimony. Rule 612, M.R.~vid., provides: "If a witness uses a writing to refresh his memory forthe purpose of testifying, either "(1)while testifying, or"(2) before testifying, if the court in its - - -- - - - - discretion determines it 

### is necessary in 

### tF6

---

.- -- -- ---- - -- - interests of justice, an adverse party 

### is entitled"tbhave'75Z writing produced atthe hearing, 

### to inspect it, to cross-examine the witness thereon, and to introduce into evidence those portions which 

### relate to the

- testimony of the witness. 

# . 

# ." (Emphasis added.) In this case, the trial court advised the witness that she



### was entitled 

### to a copy of her statement and she stated she did not wish 

### to have the statement. The plaintiffs had sought production of the statement before trial pursuant 

### to Rule 34, M.R.Civ.P. Discoverywas denied, No 

### error is claimed indenying discovery. The commission comment to Rule 612, M.R.Evid. 

## , provides in part

### as follows: 

# ".

.

# . There 

### are no 

### cases in Montana which have specifically dealtwith the right of the adverse party 

### to gain access 

### or to use the writing used to refreshmemory. The right is mentioned in State v. Watkins, -- supra, 156 Mont. at462, and Statev. LaFreniere, supra, 163Mont. at 25. Allowing a party 

### to demand the production of a writing used 

### to refresh a witness' memory before testifying is consistent with Montana 

### law to the extent that such a writing would be discoverable incivil cases under Rule 34(a)(l),M.R.Civ.P., and in criminal 

### cases under R.C.M. 1947, section 95-1803(c). 

# .."
Rule 612, specifically grants the trial court discretion in determiningwhether a statementused torefreshrecollectionmust be given to an adverse party. Under the facts that 

### we have hereinoutlined no abuse of discretion

### was committed by the trial court indenying 

### access 

### to plaintiffs. A Mr. Basacher alsogave a statement to defendant. This

### witness reread the statement several weeks before trial but stated it did not refresh his recollection. The statement did not fall within the ambit of Rule 612 and the 

### trial court did not err in refusing 

### itsproduction. ALLEGED INSTRUCTION ERRORS Plaintiffs

### claim error in the 

### trial court's refusal to give a


### res ipsa loquitur instruction. Plaintiffs relyupon thisCourt's recent decision inTompkins v. Northwestern Union Trust Companyof Helena (1982), - -. Mont

# . -- 

## ,645P.2d 402, 39 St.Rep. 845. In the Tompkins 

### case 

### we held that, where the evidence disclosed the possibility of alternative causes, the giving of 

### a res ipsa instruction 

### was not foreclosed. However, 

### we recited the followingelements necessary forthe applicationof the doctrine: "(1) Itmay be inferred thatharm suffered by the plaintiff 

### is caused by negligence of the defendant when: (a) the event is of a kind which ordinarilydoes not occur inthe absence of negligence; (b) other responsible causes

## , including the conduct of the plaintiff and third persons, 

### are sufficientlyeliminated by the evidence; and (c)the indicated negligence is within the scope of the defendant's duty to the plaintiff

# ... " 645 P.2d at406, 39 St.Rep. at849. In Tompkins, - the principle debate concerned the application of subsection (b)asquoted above. Here 

### we find the requirements of subsection (a)

### are not fulfilled. This 

### is not an event which ordinarilydoes not occur in the absence of negligence. In this case, a fire started fifty 

### to eighty feet from the 

### closest of defendant's lines. We are unable 

### to look at the physical facts of this accident and say that the existence of a fire speaks of negligence on defendant's

### part. In Tompkins, defendant 

### was at the controls of an airplane which crashed causing the decedent's death. We simply held that such an event, that is the crashing of an airplane, speaks of negligence on the partof the pilot. In the case 

### at bar, 

### we are not able to look at the physical facts and say that 

### a fire, not physically connected with defendant's line, speaks of negligence on the part of defendant inconstructionormaintenance of 

### its line. Therefore, the event inquestion is not of the kind contemplated by the firstsubsection of the rule enunciated in the - Tompkins case. The trial court did not err in failing to give a 

### res ipsa instruction. Plaintiffs' assign as error the refusal of the trial court to give a number of proposed instructions dealing with the National Electric SafetyCode. The National ElectricSafety Code

was admitted into evidence and the jury had 

### all sections of thecode before them. The court did not err in failing to give instructions regarding specific aspects of the code. General instructions 

### were sufficient in view of the fact that the code itself 

### was admitted inevidence and 

### was available for the jury's perusal. Appellants object to court's instruction no. 22 contending thatthe trial court erred ininterpreting section69-4-201, MCA, which adopts the National Electrical Safety Code in Montana. Section 69-4-201, MCA, provides: "The national 

### electrical safetycode standards shallgovern allfutureconstruction involving 

### wires for power, heat, light, telephone, telegraph, 

### or signal transmission 

### or reception. Except as provided in 69-4-203, 

### electrical construction of overhead and underground 

### electrical supply and communication lines inthe 

### state shallbe in conformity with the rules 

### set forth in the national electrical safety code approved by the American national standards institute 

### as published by the institute of electrical and electronicengineers

# . The national 

### electrical safety code shall furnish construction standards and shall be enforced by the public servicecommission." The court instructed the jury, in instruction no. 22, as follows: "You 

### are instructed that National Electrical Safety Code has been adopted by section 69-4-201, MCA, which provides in substance that all electrical construction of overhead and underground electrical supply and 

### communication lines inthe stateshallbe inconformity with the rules set forth in the National Electric Safety Code. In all respectsother than construction, theNational ElectricSafetyCode is evidence of 

### a standard of care to be considered by you alongwith all the other evidence presented relating 

### to the standard of 

### care. "If you find from the evidence thata party to this action conducted himself 

### or herself in violation of a statute, you are instructed that such conduct 

### was negligence as a matter of law. "However, in this action, a violation of 

### law is of no consequence unless it was a proximate cause of an injury found by you 

### to have been suffered by thePlaintiffs. "The duty of 

### care withwhich an 

### electricpower company is charged consists not only in the proper ins tallation of the instrumentality

## , but in the maintenance thereof in 

### a safe con-dition 

### at all times and places and under the changing circumstances of the particular 

### case

# . Even if 

### at the outset of the installation of the equipment the company may have been entirely free from fault, yet, if under changing circumstances, a hazardous condition arose, nonaction 

### or the failure to adequately remedy such a condition would constitute negligence.

### " Appellant contends that section 69-4-201, MCA, incorporates the entireNational ElectricalSafetyCode and that the violation of any provision of the Code constitutes negligence per se. On the other hand, respondent contends thatonlyconstruction standards

### were specifically adopted by the statuteand therefore the balance of the National Electric Safety Code 

### creates only evidence of a standard of care to be considered in determining negligence. We find the trial court's construction of 69-4-201, MCA, to be a reasonable one. The statuteonly specifically incorporates construction standards. In the absence of specific statutory incorporation, the provisions of the National Electrical Safety Code can only furnish evidence of 

### a standard of care. We affirm thegivingof instruction no. 22. Plaintiffs also allege 

### error in the court's failure 

### to give their proposed instructionNo. 17

## ,which stated that the control cables in question were within the "communication line" definitionof the National Electric SafetyCode's "lineof sight" rule. However, this fact 

### was disputed. Defendant offered testimony that the control cable 

### was not within themeaning of the "line of sight" rule, and if thistestimony

### were believed by the jury, the code relating thereto would have no application. Therefore, the 

### trial court properly refused plaintiffs' instruction No. 17 which mandated the jury find the control cable to be a line within the code's "lineof sight"rule. Wefind that 

### allaspects of plaintiffs' theorywere submitted 

### to this jury under the instructions given, and the instructions submitted by the court

### were correct statementsof the 

### law. NEWLY DISCOVERED EVIDENCEAfter the conclusion of the trial, on September 26, 1980, the plaintiffs filed a motion for new trial pursuant to Rule 59, M,R.Civ.P. The basis for a new trial was newly discovered evidence in the form of testimony of one M. C. Bowman, of Ronan, Montana. After hearing arguments concerning the propriety of granting the new trial and after allowing the testimony in full from Mr. Bowman, the trial court denied the motion for a new trial. The prerequisites for granting a new trial on the basis of newly discovered evidence are set forth in Kerrigan v. Kerrigan (1943), 115Mont. 136, 139 P.2d 533, and Kartes v. Kartes (1977) 175Mont. 210, 573 P.2d 191. They are: (1)that the evidence must have come to the knowledge of the applicant since the trial; (2)that it was not want of diligence on the part of the moving party which resulted in the evidence failing to 

### come 

### to light earlier; (3)that the evidence is somaterial that it would probably produce a different result upon another trial; (4)that the evidence is not merely cumulative; (5)that the application is supported by an a£fidavit; (6)thatthe evidencemust not be such

as will only tend to impeach the credibility of a witness. The trial court found that the testimony of Mr. Bowman was not somaterial that it would probablyproduce a differentresult attrial. A review of Mr. Bowman's testimony reveals that there

are serious concerns regarding his credibility and the foundational basis for his testimony. He stated he did not recall the vantage point from which he watched the fire. Attimes he positioned himself where he could not have seen the fire. Furthermore, he stated that he could not segregate what he personally knew from that which he had garnered from media reports. Although Mr. Bowman's testimony is offered by plaintiff to show that defendant's powerline started the fire, his testimony as presented to the trial judge is so lacking in its persuasiveness that we find no abuse of discretion on the trial court's part when it found that the testimony would not likelyproduce a dif-ferent result. This case was 

### more than adequately tried by counsel for all parties. Trial counsel are to be commended for the high degree of professional competence displayed inthiscase. The trialwas long and difficult. No trial of such complexity and length can be perfect. However, here 

### we have a record that reveals not only a high degree of competence on the part of counsel, but outstanding work by the trial judge. Wemay not agree with the result,but the parties had a fairtrial with a record asfreeof

error as is possible to deliver in our system of justice. 

### We affirm.

We concur:

Honorable John hi. McCarv~l, District Judge, sittirgit? place ofIdr. Justi-ce Johr C. Sheehy.

Mr. JusticeDaniel J. SheaandHonorableJohn M. McCarvel, District Judge, dissentandwillfilewritten dissents later.