No. 12536 INTHE SUPREME COURT OF THE STATE OF MONTANA

DONALD R. BEEBE, Administrator of the Estate of Dorothy Beebe and Donald Beebe, PlaS-ntif£5and 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: ForAppellants: 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: 

### SEP3 

### 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 thewrongful death of his wife Dorothy and, inhis representativecapacity as administrator ofher estate, maintained an action under the survival statute;andan action for personal injuries he suffered as a result of the same automobile accidentwhich 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 anew trial for one or more of the reasons set forth in the defendants' motion? Plaintiffbrought the action 

### (1) as administrator ofhis wife's estate for thewrongfuldeath ofhis wife, (2) as administrator of hiswife's estate under Montanatssurvival 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 onU.S. Highway 93 in Lake County,Montana. Plaintiff and his wife had been to Kalispell onbusiness 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 Beebewas driving their 1966 Datsun automobile,while plaintiffwas 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, hiswife 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 themup to between 50and 60miles per hour during the pass. The first of the southbound logging truckswas drivenby a R.obertHanson. The truck ahead of himwas owned by Alvin S. Sihrer and was drivenby 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 turnnorth of Elmo and into the straightaway. That at that speedhe was catchingup to the truck ahead, for it had begun to slow down. This caused Hanson to slow down to around 45miles 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 truckwas visible to him at all times. He testifiedhe had not seen the Datsunbehind 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 describedwhat happened then: "Q. 

### After yog gaw the Datsun, what movement, if any,did you/t6e Sihrer truckmake? A. 

### He was turning off. 

### "Q. Wherewas he turning? A. Into the Elmo Store. 

### "Q. Did.you continue to watch him as hewent into the turn?

"A. 

### Iwas more or less watching the Datsun."Q. Jc

# * Jc During the time that the Sihrer truck was stillon the highway, did you continue towatch 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 linewhen 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. II A summary of plaintiff's testimony notes that he was a passenger inthe Datsun driven by hiswife, and that prior to passing the first truck, driven by Hanson, his car had slowed down but inmaking the pass they speeded up to approximately 60 miles per hour. It was then he firstnoticed the Sihrer truck turning to the leftinto the lane of traffic they were using to make the pass. He testified the Sihrer truck was 

### stillinthe southbound lane and that the frontwheel of the tractor had just crossed over the center line. He further testified that as they pulled abreast of the Hanson truck and into fullview 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 injurieswhich lefther paralyzed from thewaist down. She had numerous operations, spent considerable time inhospitals and ultimately died on November 16, 1970. Plaintiff suffered a broken arm and other injur5es which hospitalized him for severalweeks. Atthe time of the accident plaintiff operated a well drilling business inwestern Montana, operating two of his own rigs and leasing another. Because of the accident he was unable to continue inthis business. 

### Hiswife had been his officemanager aswell ashousekeeper and mother of his children. Johnson, driver of the Sihrer truck, testified that ashe traveled south he saw the Hanson truck behind him; that ashe came off the curve north of the Elmo Store, he decided he wanted something at the store sohe made preparations to stop there; that he looked inhisrear view mirror, saw that the Hanson trackwas areasonable distance away and saw another carbehind the Hanson truck which he estimated tobe a quarter tohalf a milebehind him; that he put his signal lights on and started to slow down; that he began crossing the center line and ashe did so he heard no horn or any sound inthe area ashe pulled ogf the road to park before the Elmo Store. He testified as towhat occurred at that time: 

### "Q. Did you ever see or did you look again in your rear view mirror while you were inthe course of turning into the Elmo Store? A. Yes, I did. "Q. And where was your truck atthat time? 

### A. The tractor itself was prettywell off the highway and the trailerwas say, in the lefthand lane. It was just about to leave it and onto the driveway, 

### "8. Your tractorwas just about off? A. It was off. The trailerwas in the lefthand lane. "Q. In the northbound lane? A. Right, approximately. "Q. And did you look inyour rear view mirror at that time? A. Yes, 

### sir, I did. "Q. And what did you observe? A. 

### I observed the red Datsun atthat time asnear as 

### I can recall right alongside the Hanson truck. "Q. And how farbehind you was Hanson's truck atthat time. A, Oh, 

### I would say maybe three, maybe four lengths. "Q. Truck lengths? A. Yes, Truck lengths. He gained a littlemaybe, not much. It was pretty hard to tellinthe mirror. "Q. Well, what action did you take if any? A. WellI had tokeep going. I didn't dare stop or anything, So I went on into the parking lot, pulled inalong the parking lot there, which 

### is a guard railand as I started to get out I seen-- "Q. I 

### willget to that injust a moment. A. --things happened. "Q. I suppose--was itnecessary foryou 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 timeas you were pulling into the parking area infront of the Elmo Store? A. I was gettingpretty 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 tobring 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 orwhat happened? A. Well, that 

### iswhen 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 likea bunch of rattlingbeer 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 thewindow 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 carwas rolling. Was it rolling end over end or sideways orwhat? A. It would be sideways like this (indicating). "Q. And how many times did itrollthat you saw? A. Well, as faras 

### I could tellabout three from where I was at. "Q. Did you observe any people inconnection 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 inthe middle of the highway. 11 Concerning the signal lights, Johnson testified they were on for some fiveor sixtruck lengths 

### (300) feetbefore he got to the Elmo Store turnoff and were on after the accident. On cross-examination Johnson testified the sidemirror was positioned in such a way that when the truckwas straight in the road you could lookbehind and see straightbehind; that his trailerwas just ready tobreak off the highway when he saw the Datsun alongside the Hanson truck; and that he was inthat position when he, atan angle, saw the Datsun car. Therewas conflict in the testimony concerning the position of the Sihrer truck atthe time the Datsun began 

### its turnovers. ~efendants' witnesses maintained the truck was in the Elmo Store parking lot atthe 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 linewhen he firstobserved 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 thehardtop traveling thusly for some distance before rollingover three times. These disputed facts and others presented by the various witnesses were presented to thejury, which returned a verdict for plaintiff. The principal issuebefore this Court 

### iswhether the trial court erred ingranting defendants a new trial. In Morris v. Corcoran Pulpwood Co., 154 Mont. 468, 474, 465 P.2d 827, this Court indiscussing a denial of a motion for

new 

### trial cited Campeau v. Lewis, 144 Mont. 543, 398 P.2d 960: "'Several of the cases citedby therespondent deal with a denial of a motion for a new trialand then an appeal to this court. In such cases the court has been somewhat reluctant to setaside an act of discretion of the trialjudge. In theTripp case [Tripp v. Silver Dyke Mining Co., 70 Mont. 120, 224 P. 2721, for example, this court refused to disturb the trialjudge's decision to deny themotion fora new trial. However, in the instant case the trialjudge did grant a new trial, thereby choosing not to follow the finding of thejury. When the trialcourt denies a motion fora new trial and thereby indicates faithinthejury verdict we aremore apt to refrain from disturbing that order than where the trial judge sets aside the jury's findings and requires that the factsbe decided again. Where the trialjudge 

### is presentedwith evidence in favor of the verdict, but proceeds togrant a new trial, we feel it 

### is our duty to test the evidence against the verdict. We respect the discretion of the trialjudge, but areof the opinion that inthis casehe 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, 164P.2d 150, where the verdict for the defendant was an incredible one. However, inthe instant case there 

### isnothing 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 itsrespect for the discretion of the trialjudge and 

### itsreluctance todisturb a ruling for a
new trial, but that this Court willdisturban order granting a

new trialwhen 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 thebenefit of the trialcourt's

reasons for granting thenew trialwe 

### willexamine defendants'i. 4. ?. motion fornew 

### trial and thereasons for such presented therein. ~efendants' principal argument before the trialcourt and this Court was that the case should not have gone to thejury because of contributorynegligence by the Beebes. Atthe closeof plaintiff's case, defendants made a motion under Rule 12(f), M.R.Civ.P., to strikecertain contentions made by plaintiff inthe pretrial order and for an order dismissing the action on the grounds plaintiff had shown no right torelief. The trialcourt granted one of the motions before trialbut denied allothers. Essentially defendants made the same argument forjudgment notwithstanding the verdict or for

a new trial, towit: That the evidencewas insufficient to submit the case to thejury or tojustify the verdict. During argument both counsel stated that ifthe casewere sentback forretrial therewould be no new evidence, for the case had been fullyand ably submitted. Defendants also contend in their motion for a new trial, that there 

### isno support in the evidence for three allegations of negligence made by plaintiff contained in the pretrial order. The court overruled defendants' motions to strikethe three allegations which were: (a) failureto signal a lefthand turn; (b) failure toyield theright-of-way to the vehicle operated by plaintiff's decedent and inwhich plaintiff was a passenger; and (c) failure tokeep a proper lookout. Allthree of the allegations listedare 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 corroboratedby plaintiff's testimony who admittedly

was not paying too much attention to either truckuntil 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 toyield the right-of-way, and (c) failure tokeep a proper lookout, the Hanson testimony could be controlling insofar asthejury was concerned. Histestimony 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 thiswas 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 toyield the right-of-way and failure tokeep a proper lookout were submitted to thejury. Rightof-way 

### is defined by section 32-2121, R.C.M. 1947, asbeing 

### he privilege of the immediate use of the roadway." The jury could well have concluded from the evidence that the Datsun was inthe 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 topass. In addition, the testimony of driver Johnson that his side mirror focused straightback and that he saw the Datsun afterhe had turned raised

a question of how credible his testimony was as to the fact he saw the Datsun inthe mirror. A Ninth Circuit Court case, Bellon v. Heinzig, 347 F.2d 4, 6, applying ~ontana's section 32-2167, R.C.M. 1947, ina passing case, said: 

# "*** Does ordinary care require a driver to look to the rearwhen he 

### ispreparing to turn left, even though he 

### is ina no-passing zone? It has been held it does

[citing cases], and we arenot aware of any contrary holdings. II 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, asinthis case, and ashere 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 slowingup toallow the latterto pass,

# -- at leastuntil he reached the lineof intersection. 

### It would have been otherwise had he, atany time given a signal of intention to turn either to theright or the left. The very fact of reducing his speed, to twofifths of his previous speed, inthe space of 200 feetwithout giving any sign or signal, would indicate to the average driver followinghim, that the one so reducing his speed was intending to allow the following car topass. The law required him to see and know, when he started toturn, that a car 

### was following him; and what the law requires him to know, it

### willassume that he did know." (Emphasis supplied.) With respect toa proper lookout, the trialcourt properly instructed thejury. court's Instruction No. 20 reads:

"YOU areinstructed that prior to making a lefthand turn across a lane of traffic on an open highway, the operator of themotor vehicle so turning, must keep a lookout both ahead and tothe rear to determine ifthere are other vehicles inthe lane of traffic acrosswhich he intends to turn

# **

# *". See: Holland v. Konda, 142Mont. 536, 385 P.2d 272. We findno 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 actualpresence of, or the appearance of, imminent danger to himself or to others, 

### isnot expected nor required touse the same judgment and prudence that 

### isrequired of him inthe exercise of ordinary care incalmer and more deliberate moments, 

### Hisduty is to exercise only the care that an ordinarily prudent person would exercise in the same situation. If atthat moment he does what appears tohim tobe thebest thing to do, and ifhis choice and manner of action are the same asmight have been followed by any ordinarilyprudent person under the same conditions, he does allthe law requires of him, although inthe 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 emergencyHalleging that indoing so the courtwas in error due tothe fact that the driver of the Datsun



### was negligent. 

### We disagree forunder the fact situationhere thedriver of the Datsun was not negligent, a fact tobe decided by thejury, for she

### was legallypassing when she suddenly

### was confronted with the respondent's truck turning in front of her vehicle. 

### As

### willbe developed hereafter she could not apply thebrakes and avoid hitting the turning truck ahead. So she chose tododge in between the two trucks inhopes 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 givenby severalwitnesses plus measurements, made by a highway patroman who arrived shortly after the accident, thejury could have found that the Datsun was passing the Hanson truck; that the Hanson truckwas some 120 to 180 feetbehind 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 itwas traveling 60 miles per hour, would have required 240 feet of skid marks, plus 132 feet of perception and reaction time, making a totalof 372 feet for a total stopping distance. Most certainly, under these facts, instructing

on imminent perilwas proper. See March v, Ayers, 

### 80 Mont, 401, 260 P. 702; Bogovich v. C.M.St.P, & P,R,Co., 122Mont. 312, 203 P,2d 971. ~efendants' objected toallowing expert testimony relative to the stopping distance of a 1966Datsun traveling at60 miles per hour. Defendants, throughout the trial, contended that the decedent driver of the Datsun 

### was negligent inthe operation of the automobile. Plaintiff introduced testimony of a 

### Dr. Mark Jacobson, Chairman of the Physics Department of the University of Montana, to show thatwhen decedent was confronted with the turning truck had she chosen tomake a fullbrake application, shewould not have stopped before striking the truck. The purpose of such testimony



### was to show inretrospect that decedent chose the correct avenue of escape by attempting tomaneuver the car toher right and to pass to the rear of defendants' truck.a public street orhighway to exercise ordinary care atall

### times to avoid placing himself or others indanger; and touse likecare to avoid an accident; tokeep a proper lookout for traffic and other conditions tobe reasonably anticipated and tomaintain a proper control of his vehicle.5I See Hanson v. Colgrove, 152Mont. 161, 447 P.2d 486; Gunderson v, Nolte, 153Mont. 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 factsnor the law of Montana. Also intheirmotion fornew trialdefendants questioned whether thejury was properly instructed on theweight tobe given the testimony of various witnesses, The trialcourt chose to give

II two cautionary instructions1'following the guidelines of "~ontana Jury Instruction Guide", These were court's InstructionsNo. 3 and No. 5, which fully instructed thejury on the weight of evidence. Defendants requested their proposed instruction No. 31, which was refused. ThisFaas 

### a discretionary matter for the trial court and therewas no error. Did the trialcourt err inpermitting the damage testimony offered by plaintiff? Prior toKrohmer v. Gbhl, 145Mont. 491, 495, 402 P.2d 979, this Court was aware that inmost 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 thejury in itstask, this Court held:

"

# **

# * It appears tous that inthis particular case the element of conjecture 

### isreduced significantly by the admission of expert testimony as to the possible future of the decedent. It also appears that this expert testimony 

### isnot only thebest evidence but the only evidence available 

### in this case toprove future earnings.IIA hypothetical questionwas asked 

### Dr. Jacobson based on theweight of the Datsun, the assumed speed, a fullbrake application, plus the roadway conditions atthe time. 

### Dr. Jacobson using

as the coefficient of friction tobe used inhis equation .55 for a well traveledhighway and .6 for a less traveled road, was able to compute the skidding distance tobe 240 feet for the .55 coefficient of friction and 210 feet for the -6. ~efendants'objection was based on the assumption the carwas traveling 60 miles per hour and that therewould have been a fullapplication of thebrakes. We find no error for the question was asked torefute defendants' allegations of contributorynegligence and therewas testimony the

carwas 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 trialcourt to instruct thejury on the "assumption of risk". We findno error forhere plaintiff was legally attempting to pass, in a clear passing lane with no oncoming traffic and could inno way have assumed that the lead truckwould turn intoher lane. This Court inHanson v, Colgrove, 152Mont. 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 asthe usual and probable consequence of the dangerous condition,1f Here the facts fallfar short of meeting these elements and 

### we

I1 find no error in the courtsnot instructing on assumption of risk" See Gunderson v. Nolte, 153Mont. 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 statutoryrequirementsof 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 ofhis wife as: 1. Services contributed to thewell-drillingbusiness. 2. Domestic services contributed by decedent. Plaintiff'switness Douglas Stam,manager of the Polson State Employment Service, testified that considering the servicesrendered to thebusiness the going rate to replace a person such as decedent would be about $350 per month and if the replacement had fiveyears experience,as had decedent, thewage ratewould be about $500 per month. The samewitness testified that domestic work was $2per hour in the Polson area. With this testimonybefore the court,plus plaintiff ~eebe'sestimate of the personal expenses of decedent, expert witness Dr. George 

### B. Heliker was called. Dr. Heliker is a professor of Economics at the University ofMontana whose specialization is labor economics. This Court in Krohmer in accepting his expert testimony added another dimension to Dr. ~eliker'scareer, for since that timehe has appeared innumerous cases inMontana. In the instant case,using the methods and formulae approved in Krohmer 

## ,and with the foundational testimony ofwitnesses Stam and Beebe,Dr. Heliker testified that the loss of servicesboth domestic and to the business, totaled $213,000. The jury returned a verdict of $40,000. See: Resner v. Northern Pacific Railway, 

# - Mont

# . , 505 P.2d 

### 86, 30 St.Rep. 55. We findno 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 findno error. These instructions

are either repetitious or were not applicable to the law or the facts of this case. For the foregoing reasonsnone of the grounds enunicated indefendants' motion fornew trialauthorizes a new trial. A.ccordingly, the order of the court granting defendants a new trial

### isvacated and setaside. Thejury verdict infavor of plaintiff and thejudgment are affirmed.

Justice

We Concur: 

# -.

--a r

### /

Justices. 

# JMr. JusticeWesley Castles dissenting: I dissent. The statement of facts inthemajority opinion isnot inaccurate, but it is tailored to fitthe result reached. Allvehicles involved in thismatter 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 atleast a mile and a half or two miles in a westerly direction before entering a broad, sweeping

curve tothe left atthe outskirts of Elmo. From this curve, the highway extends ina 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 infront 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 milesnorth 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 orthreemilesnorth of Elmo on the straight stretch of highway before reaching the curve and followed it around the

curve and intothe town of Elmo. After rounding the curve, Hanson became aware of the fact that the Sihrer truck was slowing down toturn into the Elmo Store. Both logging trucks were slowing atthat time. The Beebe car, a small foreign make cal1e.d a Datsun, came up behind these two logging trucks at some point and atsome unknown 

### rate of speed. The plaintiff testified that he was a passenger with his wife driving and paid little, if any attention toher driving ashe was engaged inreading some material. Hefirstobserved the Hanson truck just shortly before the accident. Atno timewas 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 asit was attempting topass. 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 leftfront fender. Notwithstanding this substantial distance, the evidence establishes that the Datsun made an abrupt turn tothe right, atsuch speed that its lefttires left a definite mark inthe roadway for a distance of some 176 feet which mark proceeded tothe right shoulder of the highway where themarks indicated that the vehicle had been sharply turned toits left, overturned and rolled over and over an additional distance of

some 228 feet before coming toa stop. Defendant Johnson, driving the Sihrer truck, testified that after rounding the curve on thehighway he started to slow down toturn intothe Elmo Store asit was his intention toobtain

some cigars and a Coke. Atthat timethe Hanson truck was three

or four truck lengths behind him

# -- some 100 to 240 feet. He glanced totherear inhismirror and saw another vehicle about

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

on his signal for a leftturn and crossed over the center line. When the tractor of his rigwas off the highway and into the driveway of the storehe observed the Datsun attempting topass the Hanson truck. By the timehis righad completely cleared the road and came to a stop the Datsun then was observed rollingpast thetruck 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 storeand 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 tothe testimony of defendant Johnson that he started his leftturn across the center line, with his left turn signal lightson, plaintiff's witness Hanson testified that when he firstobserved the Datson by his left front fender, the Sihrer vehicle was wellover the center line into its leftturn. A sketchmade by Hanson the day following the accident of the relative position of the vehicles shows the position of the Sihrer truck tobe well over the center line and into its turn intothe storedriveway atthe time the Datsun appeared by the front of the Hanson truck. There was no evidence atany time that the driver of the Datsun ever applied any brakes or attempted to slow down. Following the accident the leftturn light on the left mirror of the Sihrer truck was still activated and blinking. Under the rules concerning new trialgranted in Garrison v. Trowbridge, 119Mont. 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, 144Mont. 543, 398 P.2d 960, to decide inthis case that "there isnothing incredible about the

b verdict for the defendant." Analyzing each of the grounds forboth a motion for a judgment notwithstanding the verdict and a motion for a new trial shows clearly that the trialjudge did not abuse his discretion and therewas 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 itwas 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. Themajority 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. 

### Iwould 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 thedistrict 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 themajority 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. Justwhat the rulemay now be in this Court's review of a trial court's order granting a new trial is highly speculative.



## U Justice