No. 12536 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DONALD R. BEEBE, Administrator 

of the Estate of Dorothy Beebe 

and Donald Beebe, 

PlaS-ntif £5 and Appellants, 

RllLPH JOHNSON and ALVIN F. SIHRER, 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellants : 

McGarvey, Morrison, White and Hedman, Whitefish, 

Montana 

Frank B. Morrison argued, Whitefish, Montana 

Christian, McCurdy, Ingraham and Wold, Polson, 

Montana 

For Respondent : 

Korn, Warden & Walterskirchen, Kalispell, Montana 

Merrit N. Tdarden argued, and Gary G. Christiansen 

argued, Kalispell, Montana 

Submitted: May 24, 1974 

Decided: SEP 3 1974 

Filed : SEP3 1914 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court . 

Plaintiff Donald R. Beebe secured a jury verdict in an 

action for damages for the wrongful death of his wife Dorothy 

and, in his representative capacity as administrator of her estate, 

maintained an action under the survival statute;and an action for 

personal injuries he suffered as a result of the same automobile 

accident which occurred in Lake County. Subsequently the district 

court of Lake County granted defendants a new trial. From the 

order granting defendants a new trial, plaintiff appeals. 

The issues on appeal are: 

1. Did the trial court err in failing to grant defendants' 

motion to set aside the verdict of the jury and enter a verdict 

for the defendants notwithstanding such verdict? 

2. In the alternative, did the trial court err in vacating 

and setting aside the verdict of the jury and granting a new trial 

for one or more of the reasons set forth in the defendants' motion? 

Plaintiff brought the action (1) as administrator of his 

wife's estate for the wrongful death of his wife, (2) as administrator of his wife's estate under Montanats survival statute section 

93-2824, R.C.M. 1947, and (3) for personal injuries to himself in 

the same accident. The jury awarded him this verdict: 

"To the estate of Dorothy Beebe, the sum of ...$ 33,705.65 

"To Donald R. Beebe, as Administrator in his 

representative capacity for the heirs of 

Dorothy Eeebe the sum of ................,..... $40,000.00 

"To Donald R. Beebe, Individually, the sum of.. 3,304.77". 

The automobile accident involved occurred midafternoon on 

February 24, 1969. The site of the accident was in front of the 

Elmo Store on U.S. Highway 93 in Lake County, Montana. Plaintiff 

and his wife had been to Kalispell on business and were returning 

home along the west shore of Flathead Lake when they came up 

behind two loaded logging trucks, which were also proceeding south. 

Dorothy Beebe was driving their 1966 Datsun automobile, while 

plaintiff was reading. Plaintiff testified he became aware of the 
first logging truck ahead of them shortly after they came around 

a curve north of the Elmo Store and that after following the 

truck for a short distance, his wife pulled out into the lane to 

their left to pass the truck. He estimated that just prior to 

pulling out to pass, they had slowed down from 45 to 35 miles 

per hour and, in order to pass, his wife had shifted into third 

gear which speeded them up to between 50 and 60 miles per hour during 

the pass. 

The first of the south bound logging trucks was driven by a 

R.obert Hanson. The truck ahead of him was owned by Alvin S. Sihrer 

and was driven by Ralph Johnson, both defendants herein. Hanson 

testified he had followed the Sihrer truck for some time, traveling 

at about 55 miles per hour coming around the turn north of Elmo 

and into the straightaway. That at that speed he was catching up to 

the truck ahead, for it had begun to slow down. This caused Hanson 

to slow down to around 45 miles per hour and at the same time 

closed the distance between the two trucks to several truck lengths-- 

approximately 120 feet to 180 feet separating them just prior to 

the accident. Hanson further testified that at no time, from 

the top of the hill north of the Elmo Store to the point where the 

Sihrer truck turned off the highway in front of the store, did he 

see any brake lights or turning lights on the Sihrer truck. He 

indicated the rear of the Sihrer truck was visible to him at all 

times. He testified he had not seen the Datsun behind him 

until just prior to the accident and the first time he saw it the 

Datsun had pulled up alongside of the cab of his truck in the left 

or north lane of the highway. His testimony described what 

happened then: 

"Q. After yog gaw the Datsun, what movement, if 

any, did you/t6e Sihrer truck make? A. He was turning 

off. 

"Q. Where was he turning? A. Into the Elmo Store. 

"Q. Did. you continue to watch him as he went into the 

turn? 

"A. I was more or less watching the Datsun. 
"Q. Jc * Jc During the time that the Sihrer truck 

was still on the highway, did you continue to watch 

him? A. Up until she went around him, yes. 

"Q. And after she went around you, had the Sihrer 

truck turned across the center line? A. He had 

started across the center line when I first seen her. 

"Q. At any time did you see any signal on the Sihrer 

logging truck? 

"A. I did not notice any, no. I I 

A summary of plaintiff's testimony notes that he was a 

passenger in the Datsun driven by his wife, and that prior to 

passing the first truck, driven by Hanson, his car had slowed 

down but in making the pass they speeded up to approximately 60 

miles per hour. It was then he first noticed the Sihrer truck 

turning to the left into the lane of traffic they were using to 

make the pass. He testified the Sihrer truck was still in the 

southbound lane and that the front wheel of the tractor had just 

crossed over the center line. He further testified that as they 

pulled abreast of the Hanson truck and into full view of the Sihrer 

truck, just before the accident, he saw no lights indicating the 

Sihrer truck was turning to the left. 

Plaintiff's wife, Dorothy, suffered multiple injuries which 

left her paralyzed from the waist down. She had numerous operations, 

spent considerable time in hospitals and ultimately died on November 

16, 1970. Plaintiff suffered a broken arm and other injur5es which 

hospitalized him for several weeks. 

At the time of the accident plaintiff operated a well drilling 

business in western Montana, operating two of his own rigs and leasing 

another. Because of the accident he was unable to continue in this 

business. His wife had been his office manager as well as housekeeper and mother of his children. 

Johnson, driver of the Sihrer truck, testified that as he 

traveled south he saw the Hanson truck behind him; that as he came 

off the curve north of the Elmo Store, he decided he wanted something at the store so he made preparations to stop there; that he 

looked in his rear view mirror, saw that the Hanson track was a 
reasonable distance away and saw another car behind the Hanson truck 

which he estimated to be a quarter to half a mile behind him; that 

he put his signal lights on and started to slow down; that he began 

crossing the center line and as he did so he heard no horn or any 

sound in the area as he pulled ogf the road to park before the 

Elmo Store. He testified as to what occurred at that time: 

"Q. Did you ever see or did you look again in 

your rear view mirror while you were in the course of 

turning into the Elmo Store? A. Yes, I did. 

"Q. And where was your truck at that time? A. The 

tractor itself was pretty well off the highway and the 

trailer was say, in the left hand lane. It was just 

about to leave it and onto the driveway, 

"8. Your tractor was just about off? A. It was off. 

The trailer was in the left hand lane. 

"Q. In the northbound lane? A. Right, approximately. 

"Q. And did you look in your rear view mirror at 

that time? A. Yes, sir, I did. 

"Q. And what did you observe? A. I observed the red 

Datsun at that time as near as I can recall right 

alongside the Hanson truck. 

"Q. And how far behind you was Hanson's truck at that 

time. A, Oh, I would say maybe three, maybe four 

lengths. 

"Q. Truck lengths? A. Yes, Truck lengths. He 

gained a little maybe, not much. It was pretty hard to 

tell in the mirror. 

"Q. Well, what action did you take if any? A. Well I 

had to keep going. I didn't dare stop or anything, So I 

went on into the parking lot, pulled in along the parking 

lot there, which is a guard rail and as I started to get 

out I seen-- 

"Q. I will get to that in just a moment. A. --things 

happened. 

"Q. I suppose--was it necessary for you to--it may 

sound like a stupid question and it is, but was it 

necessary for you to slow your truck down? A. I had 

to slow my truck down quite considerably. 

II Q. And was your truck going fast or slow then when 

you saw this Datsun this second time as you were pulling 

into the parking area in front of the Elmo Store? A. I 

was getting pretty slow. 

"Q. Is it easy to stop a load that big in a short distance? 

A. No, it isn't. 

"Q. When you have to slow it down? A. You have to bring 

it down pretty gradually. 

"Q. Alright. Then you proceeded on into the parking area 

in front of the Elmo Store? A. Uh huh. 
I1 Q. You did bring your truck to a stop? A. Yes, I did, 

"Q. And then what did you do or what happened? A. Well, 

that is when I started to get out. 

"Q. And then what happened? A. Well, I seen a hub cap and 

I knew something had happened back there but I didn't know 

what. 

"Q. Did you hear any noise? A. Well, I did after I 

opened the door where I could. 

"Q. And what kind of noise? A. It sounded like a bunch 

of rattling beer cans or something rolling down the road. 

"Q. What did you do? A. Well, I proceeded ID get on out of 

the truck. 

"Q. Did you look around or anything? A. Yes, I looked 

just through the window on the other side and I seen this 

car come rolling down the road. 

"Q. Was there anything ahead of the car rolling down 

the road that you saw? A. A bunch of pieces. 

"Q. What do you mean pieces? Could you identify them? 

A. Windshield, hubcaps. 

"Q. And describe how the car was rolling. Was it 

rolling end over end or sideways or what? A. It would 

be sideways like this (indicating). 

"Q. And how many times did it roll that you saw? A. Well, 

as far as I could tell about three from where I was at. 

"Q. Did you observe any people in connection with that 

car? A. Yes, after I was out and saw the car I run 

around the front of the truck and she was thrown, the lady 

was thrown out in the middle of the highway. 11 

Concerning the signal lights, Johnson testified they were on 

for some five or six truck lengths (300) feet before he got to the 

Elmo Store turnoff and were on after the accident. 

On cross-examination Johnson testified the side mirror was 

positioned in such a way that when the truck was straight in the 

road you could look behind and see straight behind; that his 

trailer was just ready to break off the highway when he saw the 

Datsun alongside the Hanson truck; and that he was in that position 

when he, at an angle, saw the Datsun car. 

There was conflict in the testimony concerning the position 

of the Sihrer truck at the time the Datsun began its turnovers. 

~efendants' witnesses maintained the truck was in the Elmo Store 

parking lot at the time the accident occurred. Hanson, the other 

truck driver, disputes that testimony maintaining that only a portion 

of the Sihrer tractor (cab) was over the center line when he first 
observed the Datsun alongside his cab; that the Datsun darted in 

between the front of his truck and the rear of the Sihrer truck; 

and immediately thereafter the ats sun's right wheels went off 

the shoulder of the hardtop traveling thusly for some distance 

before rolling over three times. 

These disputed facts and others presented by the various 

witnesses were presented to the jury, which returned a verdict for 

plaintiff. 

The principal issue before this Court is whether the trial 

court erred in granting defendants a new trial. 

In Morris v. Corcoran Pulpwood Co., 154 Mont. 468, 474, 

465 P.2d 827, this Court in discussing a denial of a motion for 

new trial cited Campeau v. Lewis, 144 Mont. 543, 398 P.2d 960: 

"'Several of the cases cited by the respondent deal 

with a denial of a motion for a new trial and then an 

appeal to this court. In such cases the court has been 

somewhat reluctant to set aside an act of discretion of 

the trial judge. In the Tripp case [Tripp v. Silver Dyke 

Mining Co., 70 Mont. 120, 224 P. 2721, for example, this 

court refused to disturb the trial judge's decision to 

deny the motion for a new trial. However, in the instant 

case the trial judge did grant a new trial, thereby 

choosing not to follow the finding of the jury. When the 

trial court denies a motion for a new trial and thereby 

indicates faith in the jury verdict we are more apt to 

refrain from disturbing that order than where the trial 

judge sets aside the jury's findings and requires that 

the facts be decided again. Where the trial judge is 

presented with evidence in favor of the verdict, but 

proceeds to grant a new trial, we feel it is our duty 

to test the evidence against the verdict. We respect 

the discretion of the trial judge, but are of the opinion 

that in this case he was unreasonable in granting the 

new trial. Of course, the advantageous position of the 

jury to resolve the facts does not remain when they return 

an 'incredible" verdict. Casey v. Northern Pacific Ry. Co., 

60 Mont. 56, 198 P. 141; Cf. Adami v. Murphy, 118 Mont. 

172, 164 P.2d 150, where the verdict for the defendant 

was an incredible one. However, in the instant case there 

is nothing incredible about the verdict for the defendant."' 

Such is the case before us; we find nothing incredible in the 

verdict for the plaintiff. 

In Campeau this Court expressed its respect for the discretion 

of the trial judge and its reluctance to disturb a ruling for a 

new trial, but that this Court will disturb an order granting a 

new trial when it appears there is substantial evidence presented 

to support the verdict. 0'~rien v, Great Northern R. Co., 148 Mont. 

429, 421 P.2d 710: Estate of Maricich, 145 Mont. 146, 400 P.2d 873. 

Because we do not have the benefit of the trial court's 

reasons for granting the new trial we will examine defendants' 
i. 4. ?. 

motion for new trial and the reasons for such presented therein. 

~efendants' principal argument before the trial court and this 

Court was that the case should not have gone to the jury because of 

contributory negligence by the Beebes. At the close of plaintiff's 

case, defendants made a motion under Rule 12(f), M.R.Civ.P., to 

strike certain contentions made by plaintiff in the pretrial order 

and for an order dismissing the action on the grounds plaintiff had 

shown no right to relief. The trial court granted one of the motions 

before trial but denied all others. Essentially defendants made 

the same argument for judgment notwithstanding the verdict or for 

a new trial, towit: That the evidence was insufficient to submit 

the case to the jury or to justify the verdict. During argument 

both counsel stated that if the case were sent back for retrial 

there would be no new evidence, for the case had been fully and 

ably submitted. 

Defendants also contend in their motion for a new trial, 

that there is no support in the evidence for three allegations of 

negligence made by plaintiff contained in the pretrial order. The 

court overruled defendants' motions to strike the three allegations 

which were: (a) failure to signal a left hand turn; (b) failure 

to yield the right-of-way to the vehicle operated by plaintiff's 

decedent and in which plaintiff was a passenger; and (c) failure 

to keep a proper lookout. 

All three of the allegations listed are covered, in the most 

part, by the testimony of the two truck drivers and plaintiff, 

Robert Hanson, the driver of the truck following the Sihrer truck 

was the key witness. He was a totally disinterested witness who 

had a "ring-side" seat and throughout his testimony both on direct 

and cross, he said he saw no turn lights on the Sihrer truck. This 

testimony is corroborated by plaintiff's testimony who admittedly 

was not paying too much attention to either truck until the car in 

which he was riding came abreast of the Hanson truck. In addition, 

defendant Johnson admitted his tail lights had mud on them. 

The jury could well have believed this testimony and have found 

that the operations of the Sihrer truck violated two Montana statutes, 
section 32-2167, R.C.M. 1947, turning movements and req,uired signals; 

and section 32-21-133(b), R.C.M. 1947, display of lamps. 

As to (b), the failure to yield the right-of-way, and (c) 

failure to keep a proper lookout, the Hanson testimony could be 

controlling insofar as the jury was concerned. His testimony was 

to the general effect that when the Datsun was alongside his cab, 

the Sihrer truck's cab had just crossed over the center line and 

if this was the situation the driver of the Sihrer truck clearly 

violated ~ontana's right-of-way statute, section 32-2121, R.C.M. 

1947. 

The allegations of failure to yield the right-of-way and 

failure to keep a proper lookout were submitted to the jury. Rightof-way is defined by section 32-2121, R.C.M. 1947, as being he 

privilege of the immediate use of the roadway." The jury could well 

have concluded from the evidence that the Datsun was in the passing 

lane a sufficient time prior to the time the Sihrer truck turned 

across the center line or that had the driver looked back he could 

have tukned to the right to allow the Datsun to pass. In addition, 

the testimony of driver Johnson that his side mirror focused 

straight back and that he saw the Datsun after he had turned raised 

a question of how credible his testimony was as to the fact he saw 

the Datsun in the mirror. 

A Ninth Circuit Court case, Bellon v. Heinzig, 347 F.2d 4, 6, 

applying ~ontana's section 32-2167, R.C.M. 1947, in a passing case, 

said: 

"* * * Does ordinary care require a driver to look to 

the rear when he is preparing to turn left, even though 

he is in a no-passing zone? It has been held it does 

[citing cases], and we are not aware of any contrary 

holdings. I I 

In an Idaho case similar to the instant case, Madron v. McCoy, 

63 Idaho 703, 126 P.2d 566, 570, the Idaho court stated the duties 

of turning motorists. There the truck had slowed down, as in this 

case, and as here did not give a turning signal. The court said: 

"It would seem that this conduct, on the part of the 

driver of the cattle truck, was tantamount to saying 

to the driver of any following truck, that he was slowing 
up to allow the latter to pass, -- at least until 

he reached the line of intersection. It would have 

been otherwise had he, at any time given a signal 

of intention to turn either to the right or the 

left. The very fact of reducing his speed, to twofifths of his previous speed, in the space of 200 

feet without giving any sign or signal, would indicate to the average driver following him, that the 

one so reducing his speed was intending to allow 

the following car to pass. The law required him to 

see and know, when he started to turn, that a car 

was following him; and what the law requires him to 

know, it will assume that he did know." (Emphasis 

supplied.) 

With respect to a proper lookout, the trial court properly 

instructed the jury. court's Instruction No. 20 reads: 

"YOU are instructed that prior to making a left hand 

turn across a lane of traffic on an open highway, 

the operator of the motor vehicle so turning, must 

keep a lookout both ahead and to the rear to determine if there are other vehicles in the lane of traffic 

across which he intends to turn * * *". 

See: Holland v. Konda, 142 Mont. 536, 385 P.2d 272. 

We find no merit to defendants' objections to the pretrial 

order, nor does it serve as a basis for granting defendants a new 

trial. 

We next consider the court's giving of an imminent peril 

instruction. court's Instruction No. 15 is taken from BAJI 4.40, 

California Jury Instructions, and reads: 

"A person who, without negligence on his part, is 

suddenly and unexpectedly confronted with peril 

arising from either the actual presence of, or the 

appearance of, imminent danger to himself or to 

others, is not expected nor required to use the same 

judgment and prudence that is required of him in the 

exercise of ordinary care in calmer and more deliberate 

moments, His duty is to exercise only the care that an 

ordinarily prudent person would exercise in the same 

situation. If at that moment he does what appears to him 

to be the best thing to do, and if his choice and manner 

of action are the same as might have been followed by any 

ordinarily prudent person under the same conditions, he 

does all the law requires of him, although in the light 

of after-events, it should appear that a different course 

would have been better and safer." 

The defendants object to the trial courts granting an 

11 instruction on sudden emergencyH alleging that in doing so the 

court was in error due to the fact that the driver of the Datsun 

was negligent. We disagree for under the fact situation here the 
driver of the Datsun was not negligent, a fact to be decided by 

the jury, for she was legally passing when she suddenly was confronted with the respondent's truck turning in front of her vehicle. 

As will be developed hereafter she could not apply the brakes and 

avoid hitting the turning truck ahead. So she chose to dodge in 

between the two trucks in hopes of avoiding the collision. We 

can think of no clearer set of circumstances for the giving of an 

11 instruction on sudden emergency1' than we have before us here. 

Here, from testimony given by several witnesses plus measurements, made by a highway patroman who arrived shortly after the 

accident, the jury could have found that the Datsun was passing the 

Hanson truck; that the Hanson truck was some 120 to 180 feet behind 

the Sihrer truck; that the gap was closing; and, that ~ihrer's 

truck began to turn left over the center line in front of the 

Datsun. That the Datsun, if it was traveling 60 miles per hour, 

would have required 240 feet of skid marks, plus 132 feet of perception and reaction time, making a total of 372 feet for a total 

stopping distance. Most certainly, under these facts, instructing 

on imminent peril was proper. See March v, Ayers, 80 Mont, 401, 

260 P. 702; Bogovich v. C.M.St.P, & P,R,Co., 122 Mont. 312, 203 

P,2d 971. 

~efendants' objected to allowing expert testimony relative 

to the stopping distance of a 1966 Datsun traveling at 60 miles per 

hour. Defendants, throughout the trial, contended that the decedent 

driver of the Datsun was negligent in the operation of the automobile. Plaintiff introduced testimony of a Dr. Mark Jacobson, 

Chairman of the Physics Department of the University of Montana, 

to show that when decedent was confronted with the turning truck 

had she chosen to make a full brake application, she would not have 

stopped before striking the truck. The purpose of such testimony 

was to show in retrospect that decedent chose the correct avenue 

of escape by attempting to maneuver the car to her right and to 

pass to the rear of defendants' truck. 
a public street or highway to exercise ordinary 

care at all times to avoid placing himself or 

others in danger; and to use like care to avoid 

an accident; to keep a proper lookout for traffic 

and other conditions to be reasonably anticipated 

and to maintain a proper control of his vehicle. 5 I 

See Hanson v. Colgrove, 152 Mont. 161, 447 P.2d 486; Gunderson v, 

Nolte, 153 Mont. 208, 456 P.2d 282; Fawcett v, Irby, 92 Ida. 48, 

436 P.2d 714. In addition, we note that defendants' proposed 

instructions which were refused were neither applicable to the 

facts nor the law of Montana. 

Also in their motion for new trial defendants questioned 

whether the jury was properly instructed on the weight to be given 

the testimony of various witnesses, The trial court chose to give 

I I two cautionary instructions1' following the guidelines of "~ontana 

Jury Instruction Guide", These were court's Instructions No. 3 

and No. 5, which fully instructed the jury on the weight of 

evidence. Defendants requested their proposed instruction No. 31, 

which was refused. This Faas a discretionary matter for the trial 

court and there was no error. 

Did the trial court err in permitting the damage testimony 

offered by plaintiff? 

Prior to Krohmer v. Gbhl, 145 Mont. 491, 495, 402 P.2d 

979, this Court was aware that in most wrongful death actions 

the problem of determining the value of a decedent's services was 

both difficult and often speculative. In Krohmer, recognizing 

the need to assist the jury in its task, this Court held: 

" * * * It appears to us that in this particular 

case the element of conjecture is reduced significantly 

by the admission of expert testimony as to the possible 

future of the decedent. It also appears that this 

expert testimony is not only the best evidence but the 

only evidence available in this case to prove future 

earnings. I I 
A hypothetical question was asked Dr. Jacobson based on 

the weight of the Datsun, the assumed speed, a full brake application, plus the roadway conditions at the time. Dr. Jacobson using 

as the coefficient of friction to be used in his equation .55 for 

a well traveled highway and .6 for a less traveled road, was able 

to compute the skidding distance to be 240 feet for the .55 coefficient of friction and 210 feet for the -6. ~efendants' objection was based on the assumption the car was traveling 60 miles per 

hour and that there would have been a full application of the brakes. 

We find no error for the question was asked to refute defendants' 

allegations of contributory negligence and there was testimony the 

car was traveling about 60 miles per hour. 

Defendants' next contention is the failure of the trial 

court to give an instruction on assumption of risk. The defendants allege error in the failure of the trial court to instruct 

the jury on the "assumption of risk". We find no error for here 

plaintiff was legally attempting to pass, in a clear passing lane 

with no oncoming traffic and could in no way have assumed that 

the lead truck would turn into her lane. This Court in Hanson v, 

Colgrove, 152 Mont. 161, 447 P.2d 486, speaking on the elements of 

"assumption of risk"doctrine said: 

"*drk This defense requires (1) knowledge, 

actual or implied, of a particular condition treating the risk, (2) appreciation of this condition as 

dangerous, (3) a voluntary remaining or continuing 

in the face of the known dangerous condition, and 

(4) injury resulting as the usual and probable 

consequence of the dangerous condition, 1 f 

Here the facts fall far short of meeting these elements and we 

I1 find no error in the courts not instructing on assumption of risk" 

See Gunderson v. Nolte, 153 Mont. 208, 456 P.2d 282; Fawcett v. 

Irby, 92 Idaho 48, 436 P.2d 714. 

However, the court did give an instruction on contributory 

negligence and along with it gave its Instruction No. 18 which fully 

covered the duties of decedent: 

"It is the duty of the driver of any vehicle using 
Here, following the statutory requirements of section 93-2810, 

R.C.M. 1947 (Plontana's wrongful death statute), and the holding in 

Krohmer the plaintiff sought to establish the value of the services 

of his wife as: 

1. Services contributed to the well-drilling business. 

2. Domestic services contributed by decedent. 

Plaintiff's witness Douglas Stam, manager of the Polson State Employment Service, testified that considering the services rendered 

to the business the going rate to replace a person such as decedent 

would be about $350 per month and if the replacement had five years 

experience, as had decedent, the wage rate would be about $500 per 

month. The same witness testified that domestic work was $2 per hour 

in the Polson area. With this testimony before the court, plus 

plaintiff ~eebe's estimate of the personal expenses of decedent, 

expert witness Dr. George B. Heliker was called. Dr. Heliker is a 

professor of Economics at the University of Montana whose specialization is labor economics. 

This Court in Krohmer in accepting his expert testimony added 

another dimension to Dr. ~eliker's career, for since that time he 

has appeared in numerous cases in Montana. In the instant case, using 

the methods and formulae approved in Krohmer , and with the foundational testimony of witnesses Stam and Beebe, Dr. Heliker testified 

that the loss of services both domestic and to the business, totaled 

$213,000. The jury returned a verdict of $40,000. See: Resner v. 

Northern Pacific Railway, - Mon t . , 505 P.2d 86, 30 St.Rep. 

55. We find no error for this presentation is in accord with 

Krohmer and Resner. 

We have carefully examined defendants' objections to the trial 

court's failure to give certain of their proposed instructions, 

numbers 20, 25, 30, 31 and 36, and find no error. These instructions 

are either repetitious or were not applicable to the law or the 

facts of this case. 

For the foregoing reasons none of the grounds enunicated in 
defendants' motion for new trial authorizes a new trial. A.ccordingly, 

the order of the court granting defendants a new trial is vacated 

and set aside. The jury verdict in favor of plaintiff and the judgment are affirmed. 

Justice 

We Concur: -. --a r / 

Justices. J 
Mr. Justice Wesley Castles dissenting: 

I dissent. 

The statement of facts in the majority opinion is not 

inaccurate, but it is tailored to fit the result reached. 

All vehicles involved in this matter were proceeding in 

a southerly direction on U.S. Highway 93 from various points 

north of Elmo, Montana. As that highway approaches Elmo from 

the north, it travels for at least a mile and a half or two 

miles in a westerly direction before entering a broad, sweeping 

curve to the left at the outskirts of Elmo. From this curve, 

the highway extends in a straight line southerly for a distance 

of more than a mile, passing through the small settlement of 

Elmo. The "Elmo Cash Store" fronted on the highway, facing west, 

a considerable distance south of the curve. This accident took 

place almost in front of that store. 

Defendant Johnson was a truck driver employed by the 

defendant Sihrer and was driving a Sihrer truck and trailer loaded 

with logs from a logging area some twenty miles north of Elmo. 

Robert Hanson was driving his own loaded logging truck also in 

a southerly direction on Highway 93 and came up behind the Sihrer 

truck some two or three miles north of Elmo on the straight stretch 

of highway before reaching the curve and followed it around the 

curve and into the town of Elmo. After rounding the curve, Hanson became aware of the fact that the Sihrer truck was slowing 

down to turn into the Elmo Store. Both logging trucks were slowing at that time. 

The Beebe car, a small foreign make cal1e.d a Datsun, came 

up behind these two logging trucks at some point and at some unknown rate of speed. The plaintiff testified that he was a 

passenger with his wife driving and paid little, if any attention 

to her driving as he was engaged in reading some material. He 
first observed the Hanson truck just shortly before the accident. At no time was Hanson aware of the Datsun following or 

approaching from the rear until it suddenly appeared, without 

warning and without sounding its horn, by the left front fender 

of his truck as it was attempting to pass. 

Highway Patrolman George Goggins, a witness for the plaintiff, testified that the driver of the Hanson truck, another 

plaintiff's witness, told him that the Sihrer truck was some 250 

to 300 feet ahead of the Hanson truck when the Datsun appeared 

by his left front fender. Notwithstanding this substantial distance, the evidence establishes that the Datsun made an abrupt 

turn to the right, at such speed that its left tires left a definite 

mark in the roadway for a distance of some 176 feet which mark 

proceeded to the right shoulder of the highway where the marks indicated that the vehicle had been sharply turned to its left, 

overturned and rolled over and over an additional distance of 

some 228 feet before coming to a stop. 

Defendant Johnson, driving the Sihrer truck, testified 

that after rounding the curve on the highway he started to slow 

down to turn into the Elmo Store as it was his intention to obtain 

some cigars and a Coke. At that time the Hanson truck was three 

or four truck lengths behind him -- some 100 to 240 feet. He 

glanced to the rear in his mirror and saw another vehicle about 

a quarter of a mile behind him coming around the curve. He turned 

on his signal for a left turn and crossed over the center line. 

When the tractor of his rig was off the highway and into the driveway of the store he observed the Datsun attempting to pass the 

Hanson truck. By the time his rig had completely cleared the 

road and came to a stop the Datsun then was observed rolling past 

the truck and down the highway. 

Two impartial witnesses in the Elmo Store, Mr. and Mrs. 
Unzur, saw the Sihrer truck pull off the highway into the driveway of the store and stop. Just as it stopped and the driver 

got out, they saw the Datsun car rolling down the highway. This 

testimony verified the testimony of Johnson. 

In addition to the testimony of defendant Johnson that 

he started his left turn across the center line, with his left 

turn signal lights on, plaintiff's witness Hanson testified that 

when he first observed the Datson by his left front fender, the 

Sihrer vehicle was well over the center line into its left turn. 

A sketch made by Hanson the day following the accident of the 

relative position of the vehicles shows the position of the 

Sihrer truck to be well over the center line and into its turn 

into the store driveway at the time the Datsun appeared by the 

front of the Hanson truck. 

There was no evidence at any time that the driver of the 

Datsun ever applied any brakes or attempted to slow down. 

Following the accident the left turn light on the left 

mirror of the Sihrer truck was still activated and blinking. 

Under the rules concerning new trial granted in Garrison 

v. Trowbridge, 119 Mont. 505, 177 P.2d 464; Brennan v. Mayo, 100 

Mont. 439, 50 P.2d 245; and Tigh v. College Park Realty Co., 149 

Mont. 358, 427 P.2d 57, we have said that the trial court will 

not be reversed except on a manifest abuse of discretion. The 

majority opinion does not discuss nor distinguish these cases; 

but relies on Campeau v. Lewis, 144 Mont. 543, 398 P.2d 960, to 

decide in this case that "there is nothing incredible about the 

b 

verdict for the defendant." 

Analyzing each of the grounds for both a motion for a 

judgment notwithstanding the verdict and a motion for a new trial 

shows clearly that the trial judge did not abuse his discretion 

and there was no manifest abuse of discretion. 
The various contentions of the plaintiff and what this 

Court relied on to weigh the testimony and find that the verdict 

was not incredible show clearly that there is a serious lack of 

proof on plaintiff's part including the failure to signal a left 

hand turn, the failure to yield the right of way, failure to 

keep a proper lookout. All of the evidence, fairly appraised, 

shows that it was wholly insufficient to justify the verdict; and 

even more, the trial court should have stricken plaintiff's contention at the close of plaintiff's case. Yet, the majority 

opinion by taking the evidence most favorable to plaintiff, finds 

that the verdict was not "incredible". This would seem to be a 

new standard for orders granting new trials and would seem to 

eliminate any trial court discretion. The majority does not overrule or distinguish Garrison, Brennan or Tigh, supra. 

Strangely, the majority uses an Idaho case, Bellon v. Heinzig, 347 F.2d 4, a federal case, to support its result, but that 

case is clearly distinguishable. Johnson did look to the rear. 

He had no reason to anticipate that the driver of the Datsun would 

be completely inattentive to the most obvious logging tmck making 

a turn. It goes without saying that a loaded logging truck making 

a left turn is conspicuous. 

I would go further to say that, under the evidence here, 

the driver of the small foreign car was contributorily negligent 

as a matter of law. The physical facts speak more loudly than any 

witness and establish that the Datsun was moving at such a speed 

its driver could not control it and established clearly that the 

proximate cause of the accident was that of the driver's own 

negligence. 

Much, much more could be said in this dissent as to why 

the district court was correct in granting a new trial, but it 

would be to no avail. This Court is apparently even approving 
an instruction on "sudden emergency" where the plaintiff is 

clearly negligent. Even the majority opinion concedes that the 

negligence of the plaintiff was a jury question. If that be true, 

no sudden emergency doctrine should apply. On this ground alone, 

the trial court was correct in granting a new trial. The majority opinion does not even discuss this issue other than to reject 

it. Clearly here, the trial court did not manifestly abuse its 

discretion. Just what the rule may now be in this Court's review 

of a trial court's order granting a new trial is highly speculative. 

U Justice