No. 80-476 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

DOROTHY BARPqEYEF?, DAVID AND SHARON 

COOK, KEVIN AND JANICE COUGHLIN, et al., 

Plaintiffs and Appellants, 

THE MONTANA POWER COIQANY, 

Defendant and Respondent. 

Appeal from: District Court of the Fourth Judicial ~istrict, 

In and for the County of Missoula 

Honorable John Henson, Judge presidinq 

Counsel of Record: 

For Appellants: 

Williams Law Firm, 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 

Sherman V. Lohn argued, Missoula, Montana 

- - 

Submitted: Uctober 2b, 1982 

Decided: January 17, 1983 

Filed: 'JAil i la 1983 
Mr. 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 

State of Montana. We af f irm. 

On July 16, 1977, a grass and forest fire burned a large area 

in what is known as Pattee Canyon adjacent to Missoula, 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, during which period there were thirty-three trial days. 

A verdict was rendered in favor of the defendant and judgment was 

entered on that verdict on September 17, 1980. Pos t-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 to defendant. 

The powerline, here in question, was established with three 

wires on the upper level and a neutral wire a short distance 

below. At the 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 west and 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. At one point, a power company 

serviceman found that the old control cable had contacted the 
east-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 

point of the fire, varying from fifty to eighty feet from 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. Plaintiffs established 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. Plaintif fsl 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 sparks produced 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 

fire in quest ion. 

The issues on appeal are: 

(1) Whether there is sufficient evidence to support the verdict? 

(2) Whether defendant's primary expert witness should have 

been permitted to testify and whether the court erred in rulings 

pertaining to his testimony? 

(3) Did the trial court err in failing to exclude witnesses? 
(4) Was prejudicial error committed by allowing opinion evidence of two lay witnesses? 

(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 discretion by failing 

to grant a new trial on the basis of newly discovered evidence? 

SUFFICIENCY OF THE EVIDENCE -- - - -- -- -- - - -- - - - - -- - - - - 

Motions to set aside jury verdicts as not supported by the 

evidence are proper only when there is a complete absence of any 

credible evidence in support of the verdict. All evidence and 

all inferences drawn therefrom must be considered in a light most 

favorable to the adverse party. The courts will exercise the 

greatest self-restraint in interf ering with the constitutionally 

mandated processes of jury decision. Jacques v. Montana 

National Guard (1982), -- - - Mont . - - , 649 P.2d 1319, 1325-1326, 

If this record contains admissible probative 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 allegations of error presented on this appeal. 

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-documented 
in the record. Mr. Czyzewski has a master's degree in 

metallurgical engineering and has worked as an independent consultant since 1946. He is a fellow of the American Institute of 

Chemists; he has won designation as the professional engineer of 

the year in Oregon; he was the first chairman of the combined 

Northwest Regional Industrial and Minerals Conference; he has 

authored or co-authored a series of technical papers on corrosion 

that were published or were delivered nationally at the National 

Association of 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 that he, 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 lines predated 

the Pattee Canyon fire. This testimony was not rebutted by 

testimony presented by plaintiffs. 

Plaintiffs contend that the area of corrosion analysis is not 

generally accepted or recognized 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. It provides: 

"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 or education 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 that the testimony to be 

offered involved a field of science which had gained "general 
acceptance" by the scientific community. See Frye v. United 

States (D.C.Cir. 1923), 293 F. 1013. 

There has been a trend to liberalize the 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 its drafters should be 

regarded as tantamount to an abandonment of 

the general acceptance standard." (footnote 

omitted) 3 J. Weinstein and M. Berger, 

Weinstein's Evidence ~1702[03], at 702-16. - - - -- - -. - - . - -- -- 

We hold that the general acceptance rule is not in conformity 

with the spirit of 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 for admissibility. 'Every use£ ul new 

development must have its first day in court. 

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 likely to mislead the jury, it is better to 

admit relevant scientific evidence in the same 

manner as other expert testimony and allow its 

weight to be attacked by cross-examination and 

refutation." (Citations omitted .) 519 F.2d 

at 466. 

In Steward v. Casey (1979), 182 Mont. 185, 595 P.2d 1176, 

this Court 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 sufficient data, 

cross-examination is the shield to guard 

against unwarranted opinions. . ." 182 Mont. 

at 193, 595 P.2d at 1180. 

We find Mr. Czyzewski's testimony to have been sufficiently 

foundationed to foreclose a finding that the trial court abused 

its discretion in overruling plaintif fs' objections. The 
searching and adept cross-examination by plaint iff s' counsel provided sufficient assurance that this jury was not necessarily 

misled or confused. 

Plaintiffs also allege error resulting from the trial 

court Is reception 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 at the time of the fire. 

The opinion expressed by Mr. Czyzewski was that under windinduced conditions , contact be tween 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 

to contact. 

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 

that there were some dissimilarities but that the dissimilarities 

could be adequately treated on cross-examination. 

The conditions under which an experiment is cond ucted 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 substantially similar 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 his vibration test. 

Plaintiffs further allege error in being 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 foundation present in this record. Furthermore, the foundation for this 

witness Is testimony was adequately explored in the very lengthy 

and adroit cross-examination conducted by plaintiffs' counsel. 

Plaintiffs argue error in the trial court'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 great deference to the 

trial court's discretion. Brown v. North American Mfg. Co. 

(1978), 176 Mont. 98, 576 P.2d 711. 

Exhibit 16A, offered by plaintiffs, was a chart of weather 

service records. There were sufficient inaccuracies in the 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. 

Plaintiffs also attack the trial court's ruling which refused 

to admit plaintiff 's exhibits 27AI 27B, and 27C. These exhibits 

were prepared by a law student employed by plaintiffs. This student had a bachelor's degree in business administration, but no 

degree in an area of 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 

these offered 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 in preparing, giving depositions, and answering interrogatories. Plaintiffs sought to prove 
that these computations were in error. Plaint if fs again offered 

a chart, prepared by a law student, which was identified as exhibit 28B. Objection was made by defendant on the basis that the 

underlying documents had been placed in evidence 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 .. OF WITNESSES 

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, plaint iff s 

filed their motion. 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 any party. The rule does not indicate when 

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 

result of failure to sequester the witnesses. 

ADMISSIBILITY OF LAY TESTIMONY -- 

Plaintiffs claim error in the trial court having received 

into evidence opinion testimony from two lay witnesses. 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 rights of the parties." 

Defendant presented one Olaf Krook who testified that he 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 also 
testified 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 

lived on Pattee Canyon 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 to him as though the person was trying to hide from the 

police. Again, this testimony is conclusory and of little probative value. However, as in the case of Mr. Krook's testimony, we 

find the admission of this evidence to have been harmless in view 

of the extensive record in this case. 

FAILURE TO ORDER PRODUCTION OF WITNESSES STATEMENTS ---- .- - - ---- 

Plaintiffs urge error in the trial court's failure to order 

production of the statements of Susan Solis and Charles Basacher. 

A statement was given by Susan Solis on September 8, 1977, on 

behalf of defendant. Counsel for plaintiffs also interviewed the 

witness. At time of trial, this witness was interviewed separately by the court who explained her rights with respect to the 

statement. Defendant agreed that if Susan Solis wanted a copy of 

her statement, she would 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 full explanation the witness said she did not want a 

copy of her statement. During cross-examination she tes ti£ ied 

that she had seen a copy of the statement and reviewed it prior 

to her testimony. 

Rule 612, M.R.~vid., provides: 

"If a witness uses a writing to refresh his 

memory for the 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 at the 

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. Discovery was denied, No error is claimed in denying 

discovery. 

The commission comment to Rule 612, M.R.Evid. , provides in 

part as follows: 

". . . There are no cases in Montana which 

have specifically dealt with the right of the 

adverse party to gain access or to use the 

writing used to refresh memory. The right is 

mentioned in State v. Watkins, -- supra, 156 

Mont. at 462, and State v. LaFreniere, supra, 

163 Mont. 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 in civil 

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 

determining whether a statement used to refresh recollect ion must 

be given to an adverse party. Under the facts that we have 

herein outlined no abuse of discretion was committed by the trial 

court in denying access to plaintiffs. 

A Mr. Basacher also gave 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 its production. 

ALLEGED INSTRUCTION ERRORS 

Plaintiffs claim error in the trial court's refusal to give a 

res ipsa loquitur instruction. Plaintiffs rely upon this Court's 

recent decision in Tompkins v. Northwestern Union Trust Company 
of Helena (1982), - -. Mont . -- , 645 P.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 

following elements necessary for the application of the doctrine: 

"(1) It may be inferred that harm suffered by 

the plaintiff is caused by negligence of the 

defendant when: (a) the event is of a kind 

which ordinarily does not occur in the absence 

of negligence; (b) other responsible causes , including the conduct of the plaintiff and 

third persons, are sufficiently eliminated by 

the evidence; and (c) the indicated negligence 

is within the scope of the defendant's duty 

to the plaintiff . . . " 645 P.2d at 406, 39 

St.Rep. at 849. 

In Tompkins, - the principle debate concerned the application 

of subsection (b) as quoted above. Here we find the requirements 

of subsection (a) are not fulfilled. This is not an event which 

ordinarily does 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 part of 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 

in construction or maintenance of its line. Therefore, the event 

in question is not of the kind contemplated by the first subsection 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 Safety Code. The National Electric Safety Code 

was admitted into evidence and the jury had all sections of the 
code 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 in evidence and was available for the jury's 

perusal. 

Appellants object to court's instruction no. 22 contending 

that the trial court erred in interpreting section 69-4-201, MCA, 

which adopts the National Electrical Safety Code in Montana. 

Section 69-4-201, MCA, provides : 

"The national electrical safety code standards 

shall govern all future construction 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 in the state shall be 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 

electronic engineers . The national electrical 

safety code shall furnish construction standards and shall be enforced by the public 

service commission." 

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 in the state shall be in conformity with the rules set forth in the 

National Electric Safety Code. In all 

respects other than construction, the National 

Electric Safety Code is evidence of a standard 

of care to be considered by you along with all 

the other evidence presented relating to the 

standard of care. 

"If you find from the evidence that a 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 the Plaintiffs. 

"The duty of care with which an electric power 

company is charged consists not only in the 

proper ins tallat ion 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 entire National Electrical Safety Code and that the violation 

of any provision of the Code constitutes negligence per se. On 

the other hand, respondent contends that only construction standards were specifically adopted by the statute and 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 statute only 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 af firm 

the giving of instruction no. 22. 

Plaintiffs also allege error in the court's failure to give 

their proposed instruction No. 17 , which stated that the control 

cables in question were within the "communication line" def inition of the National Electric Safety Code's "line of sight" rule. 

However, this fact was disputed. Defendant offered testimony 

that the control cable was not within the meaning of the "line of 

sight" rule, and if this testimony were believed by the jury, the 

code relating thereto would have no application. Therefore, the 

trial court properly ref used plaintiffs' instruction No. 17 

which mandated the jury find the control cable to be a line 

within the code's "line of sight" rule. 

We find that all aspects of plaintiffs' theory were submitted 

to this jury under the instructions given, and the instructions 

submitted by the court were correct statements of the law. 

NEWLY DISCOVERED EVIDENCE 
After 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. Af ter 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), 115 Mont. 136, 139 P.2d 533, and Kartes v. Kartes (1977) 

175 Mont. 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 so material 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£ f idavit; ( 6) that the evidence must 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 so material that it would probably produce a different result 

at trial. 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. At times 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 likely produce 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 in this case. The trial was 

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. We may not agree with the 

result, but the parties had a fair trial with a record as free of 

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

We affirm. 

We concur: 

Honorable John hi. McCarv~l, District 

Judge, sittirg it? place of Idr. Justi-ce 

Johr C. Sheehy. 

Mr. Justice Daniel J. Shea and Honorable John M. McCarvel, District 

Judge, dissent and will file written dissents later.