No. 89-482 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

SPENCER SIZEMORE, 

Plaintiff & Respondent, 

THE MONTANA POWER COMPANY; and DOE I and 

KEITH KESSEL, individual, and d/b/a 

KESSEL CONSTRUCTION COMPANY; and KESSEL 

CONSTRUCTION COMPANY; and DOE 11, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Seventeenth Judicial District, 

In and for the County of Blaine, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Brian Lilletvedt; Bosch, Kuhr, Dugdale, Martin & 

Kaze; Havre, Montana 

For Respondent: 

Morton B. Goldstein; Goldstein Law Firm; Havre, 

Montana 

Amicus : 

Ira Eakin; Lynaugh, Fitzgerald, Eiselein & Eakin; 

Billings, Montana (Montana Trial Lawyers' Assn.) 

Gary L. Graham; Garlington, Lohn & Robinson; 

Missoula, Montana (Montana Defense Trial Lawyers, 

Inc. ) 

Submitted: October 25, 1990 

Filed: 

~ecided: December 13, 1990 (i 
Justice R. C. McDonough delivered the Opinion of the Court. 

Defendant, Montana Power Company (MPC) , appeals from a jury 

verdict of the Seventeenth Judicial District, Blaine County. The 

jury awarded plaintiff, Spencer Sizemore (Sizemore), damages for 

injuries sustained when an I-beam he was holding came into contact 

with a high voltage power line owned by MPC. The jury found that 

15% of Sizemore's injuries was attributable to his own negligence, 

20% was attributable to his co-worker, Keith Kessel (Kessel), and 

65% was attributable to the negligence of MPC. We affirm. 

We rephrase the issues as follows: 

1) Whether the District Court erred when it allowed Sizemore 's 

expert witness to testify concerning sections of the 1977 ~ational 

Electric Safety Code (NESC); 

2) Whether the District Court erred when it ruled as a matter 

of law that the minimum height requirement set forth in the 1984 

edition of the NESC did not apply to this case; 

3) Whether the District Court erred when it refused MPC1s 

proposed jury instructions 15, 15A and 15B; 

4) Whether the negligence of Sizemore, and his co-worker 

Kessel, was a superseding, intervening event which severed all 

liability on the part of MPC; 

5) Whether the evidence was insufficient to support the 

jury's conclusion that MPC was responsible for sixty-five percent 

of Sizemore1s injury. 

The facts are simple. On September 8, 1984, Spencer Sizemore 

gratuitously agreed to help Keith Kessel move some steel I-beams. 

2 
Kessel is the owner of Kessel Construction Company. The company 

constructs concrete buildings, steel buildings and grain bins. It 

operates out of the Kessel Construction Yard in Blaine County. 

On the day of the accident Sizemore and Kessel went to the 

Kessel Construction Yard, where the I-beams were located. They 

planned to move the beams with a boom truck. Kessel and Sizemore 

moved some wooden stubs to the area where they planned to move the 

beams so that they could set the beams on the stubs. After setting 

the stubs in place, Sizemore guided Kessel as he backed the boom 

truck up to the beams and they hooked up the load. 

As they hooked an I-beam to the boom truck, Sizemore and 

Kessel discussed safety. Particularly, they talked about the need 

to avoid powerlines that ran across and above the Kessel 

Construction Yard. 

After hooking a beam to the boom truck, Kessel began to back 

up with the load. While backing up, the boom hit one of the 

powerlines and Sizemore, who was holding on to the beam, received 

an electrical shock. As a result of the shock, Sizemore received 

burns to his left leg and right hand. He was hospitalized in Havre 

and Missoula, where he had surgery to remove the ring finger on his 

right hand and repair damage to his left leg. 

On November 28, 1986, Sizemore filed a complaint against both 

MPC and Keith Kessel, individually and d/b/a Kessel Construction 

Company. In his complaint, Sizemore alleged that he suffered 

permanent injuries as a result of the accident. He further alleged 

that MPC negligently placed the power line in such a manner as to 
grossly and recklessly endanger his life. He also alleged that 

Kessel negligently operated the boom truck by backing it into the 

powerline. 

MPC answered Sizemorels complaint and generally denied his 

allegations as to the cause of his injuries. MPC maintained that 

Sizemorels injuries were caused by his own negligence. It 

therefore filed a motion for summary judgment contending that 

Sizemorels injuries were caused by the superseding and intervening 

negligent acts of Kessel and Sizemore. This motion was denied. 

At trial the jury found that 15% of Sizemorels injuries was 

attributable to his own negligence, 20% of his injuries was 

attributable to Kesselgs negligence and the remaining 65% was 

attributable to the negligence of MPC. MPC filed its motion for 

judgment notwithstanding the verdict or in the alternative for a 

new trial. These motions were denied and MPC filed this appeal. 

Issue I 

MPC argues that the trial court erred when it allowed 

Sizemorels expert witness, Robert Leo, to testify concerning 

certain safety standards contained in the 1977 edition of the 

National Electric Safety Code (NESC). These standards set forth 

height requirements for powerlines. According to MPC, the 1984 

edition of the NESC should have been used because Sizemore's 

injury occurred in 1984. It argues that the trial court erred in 

allowing Mr. Leo to refer to the older 1977 version during his 

testimony. 

We need not delve into the merits of MPC1s argument. As 
Sizemore points out, MPC failed to object to this testimony. 

Without a proper objection, MPC failed to preserve possible error 

for purposes of appeal. Matter of B.L.O. (1984), 213 Mont. 164, 

689 P.2d 1246. Accordingly, we decline to address this issue or 

to find reversible error on the part of the District Court. 

Issue I1 

MPC argues that the NESC provides that a power company need 

only elevate its power lines twenty feet above the ground in areas 

such as the Kessel Construction Yard. It supports this contention 

through reference to section 232 of the NESC, which indicates that 

the minimum height requirement for powerlines similar to the one 

involved in this case is 20 feet. Apparently, in cross examining 

Mr. Leo, counsel for MPC attempted to insinuate that this 20 foot 

standard was the height required by the NESC. 

Upon objection, the trial court ruled that such questioning 

misrepresented Mr. Leo's former testimony. The trial court pointed 

out that this 20 foot figure was modified by a footnote which 

explained that the figure was based upon vehicle operating heights 

of less than 14 feet. Therefore, if vehicles, with maximum heights 

of 14 feet operated under powerlines, the code mandated a minimum 

height of 20 feet. If vehicles higher than 14 feet operated in the 

area however, the lines must be at least six feet higher than the 

maximum operating height of the vehicles. Based upon this 

interpretation of the NESC, the trial court sustained Sizemore's 

objection and forbid MPC1s counsel from asking what it considered 

misleading questions. 
We have reviewed section 232 of the NESC. Obviously, this 

section was intended to require power companies to provide lines 

at least six feet higher than the maximum height of vehicles 

passing underneath. This conclusion comports with Mr. Leo's 

testimony. We therefore hold that the trial courtls ruling on this 

issue was a correct interpretation of both Mr. Leo's testimony and 

the standards contained in the NESC. 

Issue I11 

Throughout trial and on appeal, MPC has argued that Sizemore's 

and Kessel's negligence was an unforeseeable event. It maintains 

that because this event was unforeseeable, it should be regarded 

as a superseding, intervening event which cuts off all legal 

liability on the part of MPC. See Kitchen Krafters v. Eastside 

Bank of Montana (1990), 47 St.Rep. 602, 789 P.2d 567. 

In order to emphasize this theory MPC submitted several 

instructions to the District Court for presentation to the jury. 

These instructions stated: 

PROPOSED INSTRUCTION NO. 15 

If you find the Defendant Keith Kessel Is conduct was 

the operative conduct or superseding cause which 

intervened as the proximate cause of Spencer Sizemore's 

injuries, you must return your verdict for the Defendant 

Montana Power Company. 

PROPOSED INSTRUCTION NO. 15-A 

If an act of negligence subsequent to the first act 

of negligence was of such a character as not reasonably 

to be expected to happen in the natural sequence of 

events, such later act of negligence is the independent, 

intervening cause and, therefore, the sole proximate 

cause of the injury. 

PROPOSED INSTRUCTION NO. 15-B 
Where one has negligently caused a condition of 

danger, he is not relieved of responsibility for damage 

caused to another merely because the injury also involved 

the later misconduct of someone else, if that conduct was 

reasonably foreseeable. 

The District Court rejected these instructions. It rejected 

Instruction 15 because it felt that its language would confuse the 

jury. The lower court stated its belief that the wording of the 

instruction was inconsistent with Montana's comparative negligence 

law. 

MPC, on the other hand, argues the instruction is an accurate 

statement of Montana law. It points out that its language is taken 

directly out of a decision rendered by this Court in 1986. Dvorak 

v. Matador Service Inc. (1986), 223 Mont. 98, 727 P.2d 1306. In 

Dvorak, the plaintiff sued for injuries incurred when his employer 

ordered him to enter a tank which had previously contained 

poisonous chemicals. The tank car was owned by Matador Service 

Inc. We held that the employer's grossly negligent conduct was 

the I' operative causew or superseding force of Dvorak' s injuries. 

Dvorak, 727 P.2d at 1310. Based upon this conclusion we held that 

Dvorak could not establish proximate cause and therefore affirmed 

the lower court's order of summary judgment. 

Recently this Court has expanded and modified the law of 

proximate cause. This trend began in the seminal case of Young v. 

Flathead County (1988), 232 Mont. 274, 757 P.2d 772, and has 

continued through our decisions in Kitchen Krafters Inc. v. 

Eastsi.de Bank of Montana (1990), 47 St. Rep. 602, 789 P. 2d 567; and 

Thayer v. Hicks (1990), 47 St. Rep. 1082, 793 P.2d 784. In each 

7 
of these cases we have set forth the rule that proximate cause has 

its basis in foreseeability. See Kitchen Krafters, 789 P.2d at 

575. 

The language from Dvorak, upon which Instruction 15 is based, 

does not incorporate the doctrine of foreseeability and its 

relationship to proximate cause as set forth in Young and its 

progeny. Moreover, the language I1operative conduct or superseding 

causew indicates that Sizemore's accident may have had only one 

cause. Such a connotation is inconsistent with the law concerning 

comparative negligence. Given these facts, we hold that the 

instruction is faulty and the District Court could properly refuse 

its submission to the jury. 

Similarly, Instruction 15-A was properly refused. This 

instruction is based upon Halsey v. Uithof (1975), 166 Mont. 319, 

532 P.2d 686. Halsev was decided before Montana adopted 

comparative negligence. Before this law was adopted a plaintiff 

could not recover if he was partially responsible for his injuries. 

Many of the older cases decided under this scheme of liability 

often denied such plaintiffs recovery on the grounds that their 

negligence was the sole or proximate cause of their damages. Such 

language is no longer applicable, however. Under comparative 

negligence a plaintiff can recover even though the accident causing 

his injuries is caused by more than one actor, including himself. 

The language of Instruction 15-A does not adequately set forth this 

concept. The instruction is also covered by other approved 

instructions. We hold the instruction was properly denied. 
The lower court also denied Instruction 15-B, obviously 

holding that it was adequately covered by other instructions 

already approved. Instruction 15-B deals with foreseeability. In 

order to incorporate foreseeability into the instructions given to 

the jury, the District Court utilized a modified version of the 

standard proximate cause instruction, which was used at the time 

trial. Instruction No. 13 submitted to the jury states: 

The proximate cause of an injury is that cause which in 

a natural and continuous sequence, unbroken by an 

unforeseeable, new and independent cause, produces the 

injury, and without which it would not have occurred. 

(Added words underlined.) 

This instruction when read in conjunction with others, 

adequately sets forth the concept of foreseeability and its 

application to proximate causation. The concept of foreseeability 

was set forth to the jury through Instruction No. 13, instructions 

on negligence, proximate cause, and the duty of the power company. 

Also, it was discussed in closing arguments given by counsel. The 

lower court's refusal to submit Instruction 15-B to the jury does 

not constitute reversible error. In light of instructions given 

regarding negligence and comparative negligence, it was redundant. 

Furthermore, the instruction is confusing, especially by the use 

of the word llinvolvedll and the word llconduct.ll 

However, as an aside, we note that this instruction (15-B) has 

merit in the use of the word "reasonablyt1 (the lack of which is not 

reversible error) as an adverb before the word Ilfore~eeable.~~ This 

addition would help explain the concepts of ordinarily prudent 

person and natural and probable consequences in setting forth the 
issue of foreseeability in an instruction applicable to the 

appropriate case. These concepts were included in an instruction 

recently set forth in Kitchen Krafters v. Eastside Bank of Montana 

(1990), 47 St.Rep. 602, 689 P.2d 567. 

Issue IV 

MPC maintains that the District Court erred when it denied 

MPCns motion for summary judgment, motion for directed verdict and 

motion for judgment notwithstanding the verdict. It bases this 

argument on its belief that Kesselns and Sizemorens negligence was 

unforeseeable, and that therefore Sizemore cannot establish 

proximate cause. In support of its contentions, MPC cites a number 

of cases decided by this Court. 

Most of these cases arose before the legislature passed 

Montanans comparative negligence statute. See e.g. Halsey v. 

Uithof (1975), 166 Mont. 319, 532 P.2d 686; Sprankle v. DeCock 

(1974), 165 Mont. 274, 530 P.2d 457; Turley v. Montana Power 

Company (1975), 167 Mont. 39, 534 P.2d 1254. Many of these 

decisions contain language concerning causation which, although 

relevant in a contributory negligence context, is no longer 

applicable under our comparative negligence scheme. For this 

reason, MPCns reliance upon these cases is misplaced. 

However, MPC also relies upon Dvorak v. Matador Services Inc. 

(1986), 223 Mont. 98, 727 P.2d 1306, which arose after the 

comparative negligence statute was enacted. Admittedly, this case 

lends some support to MPC1s arguments. Since Dvorak was decided, 

however, we have issued a number of opinions which render much of 
its language obsolete. As stated earlier, this Court has sought 

in recent decisions, to clarify the doctrine of proximate cause. 

Therefore, we rely upon these decisions in formulating the holding 

in the case now before us. 

The doctrine of proximate cause has been developed in an 

effort to prevent unlimited liability. As observed in a recent 

case 'Ithe consequences of a wrongful act can extend in time for 

years--perhaps [even] beyond the defendant's lifetime." Kitchen 

Krafters Inc v. Eastside Bank of Montana (1990), 47 St.Rep. 602, 

789 P.2d 567. In recognition of this fact, the courts have sought 

to devise a means to cut off a defendant's liability when 

principles of equity and common sense demand such a result. By far 

the most common method of achieving this end is through resort to 

the foreseeability analysis. 

This method of analysis requires a trier of fact to determine 

whether the consequences of a defendant's actions were reasonably 

foreseeable. If a plaintiff's damages were reasonably foreseeable 

to a man of ordinary prudence, liability will usually follow. 

However by the same token the law refuses to hold a defendant 

responsible for consequences which, although possible are not 

reasonably foreseeable, or are generally regarded as freakish, 

bizarre or unpredictable. Prosser and Keeton on Torts, 5th Edition 

5 43 (1984). 

Foreseeability can be determined in one of two ways. Some 

courts analyze the issue under the element of duty. These courts 

take the view that the scope of a defendant's duty is determined 
by the foreseeability of any harm which may arise as a result of 

his negligent conduct. See e.g. Palsgraf v. Long Island Railroad 

Co. (New York 1928), 162 N.E. 99, 100. Other courts have analyzed 

foreseeability under the issue of proximate cause. In doing so, 

they have taken the view that all persons owe a duty to the world 

at large to act reasonably in order to prevent injury to their 

fellow man. Palssraf, 162 N.E. at 104 (Andrews dissenting) . If 

this duty is breached, it then becomes necessary to determine 

whether the consequences of the breach were reasonably foreseeable 

to the defendant. If the consequences were reasonably foreseeable, 

proximate cause is established and liability will follow. 

In Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990), 

47 St.Rep. 602, 789 P.2d 567, this Court analyzed foreseeability 

under the doctrine of proximate cause. In the present case, MPC 

maintains that Sizemore1s injuries were unforeseeable because his 

negligence combined with Kessel's was a superseding, intervening 

event. Therefore, we analyze the facts now before us under this 

doctrine and apply them to the law established in Kitchen Krafters. 

As stated earlier, MPC argues that the events surrounding 

Sizemore's accident were unforeseeable. They maintain that it was 

impossible to foresee that Kessel and Sizemore would be so 

completely inattentive and negligent so as to run the boom truck 

into the overhead powerline. They further argue that they had no 

way of knowing that the truck would be operated in the vicinity of 

the powerline. Based upon these contentions, MPC maintains that 

Kessells and Sizemore1s acts were unforeseeable and therefore 
proximate cause cannot be established. Without proximate cause MPC 

cannot be held liable for any alleged negligence associated with 

the height of the powerline. 

Simply stated, the issue raised by MPC is whether the 

antecedent acts of negligence committed by Kessel and Sizemore were 

superseding, intervening events which cut off legal responsibility 

on the part of MPC. By definition, a superseding, intervening 

event is an unforeseeable event that occurs after the defendant's 

original act of negligence. Its presence will generally serve to 

cut off liability on the part of the defendant. Kitchen Krafters, 

789 P.2d at 576. 

It is true that sometimes an antecedent act by a third person 

or by the plaintiff is unforeseeable. For example, numerous courts 

have held that the criminal or intentional actions of a third 

person may not be foreseeable. Cole v. German Savings and Loan 

Society (8th Cir. 1903), 124 F. 113. Similarly, a grossly 

negligent act on the part of a plaintiff may properly be considered 

unforeseeable. 

The case now before us, however, presents neither of these 

fact scenarios. Rather, the case requires us to determine whether 

the circumstances surrounding Sizemore's accident was a reasonably 

foreseeable consequence of MPC1s negligent placement of its 

powerline. 

We begin with the premise that '!the standard of reasonable 

conduct may require the defendant to protect the plaintiff against 

'that occasional negligence which is one of the ordinary incidents 
of human life, and therefore to be anticipated1I1 Prosser and 

Keeton on Torts, 5th Edition 5 44 (1984). Based upon this rule, 

it is apparent that at times a power company has a duty to maintain 

its lines in such a manner as to prevent the type of accident that 

occurred in this case. 

After a careful review of the facts, we conclude that Kessel ' s 

and Sizemorels actions were not extraordinarily negligent. On the 

contrary, the boom truck's contact with the line could be a normal 

consequence of MPC's negligent act. It was therefore reasonably 

foreseeable. This conclusion is supported by testimony presented 

by expert witnesses at trial. Sizemore's expert testified that 85% 

of all electrical injuries are caused by human frailty or mistake. 

MPC ' s witness acknowledged that the ma j ority of such accidents are 

due to human mistakes. 

Given these facts, we hold that the jury could properly 

conclude that the intervening negligence of Kessel and Sizemore 

was reasonably foreseeable and proximate cause was established. 

Therefore, the lower court did not err in refusing to grant MPC's 

motions for summary judgment, directed verdict or judgment 

notwithstanding the verdict. 

Issue V 

Finally, MPC argues that there was insufficient evidence to 

support the jury's conclusion that it was responsible for sixtyfive percent of Sizemore's injury. In support of this contention 

MPC recites evidence which established both Kessells and Sizemore's 

knowledge of the location and danger of the powerlines. They 
maintain that their negligence if any, was in failing to raise or 

relocate the powerlines. This act constituted mere passive 

negligence, as opposed to the active negligence of Kessel and 

Sizemore. Given these facts, the evidence does not support the 

juryts apportionment of damages. 

We disagree. This Court Is function in reviewing jury verdicts 

is necessarily very limited. We must review the evidence in a 

light most favorable to the prevailing party to determine whether 

substantial evidence supports the jury's verdict. Anaconda Co. v. 

Whittaker (1980), 188 Mont. 66, 610 P.2d 1177. This Court cannot 

reweigh the evidence or disturb the findings of a jury unless that 

evidence is so inherently impossible or improbable as not to be 

entitled to belief. Reynolds v. Trbovich Inc. (1949) , 123 Mont . 

224, 210 P.2d 634. 

The evidence presented at trial established that MPC knew that 

construction activity took place at the Kessel Yard. Apparently, 

MPC employees had been at the yard approximately 100 times over the 

years preceding the accident. Evidence was also introduced which 

established that a similar incident, although with no injuries, 

occurred a few months prior to Sizemorets accident. The evidence 

is conflicting on whether MPC was notified of the incident. 

However, the incident involved contact with a powerline that was 

connected to the same power pole that connected the powerlines 

involved in the Sizemore accident. Finally, the record shows that 

MPC had been at the construction yard and had buried cables earlier 

in 1984, several months before the accident. 
These facts rise to the level of substantial evidence needed 

to support the jury's apportionment of damages. As stated earlier, 

this Court is precluded from reweighing the evidence. Accordingly, 

the jury's verdict is affirmed. 

We Concur: H ,pVT- Chief Justice 

Justices '-.- 
Justice Fred J. Weber dissents as follows: 

My dissent focuses on Issue I11 in which the majority 

concludes that it was not error to refuse any of defendant's 

proposed Instructions 15, 15-A and 15-B. The majority concludes 

that the theories on the part of the defendant are adequately set 

forth in Instruction No. 13 which is set forth as follows: 

The proximate cause of an injury is that cause which in 

a natural and continuous sequence, unbroken by an 

unforeseeable, new and independent cause, produces the 

injury, and without which it would not have occurred. 

(Added words underlined.) 

The majority concludes that Instruction No. 13 adequately sets 

forth the concept of foreseeability and its application to 

proximate causation. I suggest that the analysis of Instruction 

No. 13 is not consistent with Kitchen Krafters Inc. v. Eastside 

Bank of Montana (Mont. 1990), 789 P.2d 567, 47 St.Rep. 602. 

Instruction No. 13 speaks of "Thetf proximate cause in a case where 

there are three different causes to be considered. The instruction 

essentially uses the Ifbut fortf approach as it states that the 

proximate cause is that "without which the injury would not have 

occurred." As pointed out in Kitchen Krafters, 789 P.2d at 574, 

47 St. Rep. at 610, causation in fact is determined by the Ifbut 

fortf test where applicable. However, if two causes concur to bring 

about an event then the tfsubstantial factorft test is used. Under 

Kitchen Krafters, it appears that Instruction No. 13 improperly 

focuses on the negligence of the defendant Montana Power Company 

without reference to any concurring negligence. 

The defendant's problem with Instruction No. 13 is that it 
contends there is a failure to set forth its theories on 

foreseeability. The general rule is stated in Kitchen Krafters, 

789 P.2d at 575, 47 St.Rep. at 611, as follows: 

Proximate cause is normally analyzed in terms of 

foreseeability. Simply stated, one is only liable for 

consequences which are considered to be reasonably 

foreseeable. Prosser and Keeton at 5 43. If the 

consequences of one's wrongful act are not reasonably 

foreseeable, then it follows that it was not proximately 

caused by that act. Using this analysis, one must look 

forward through the chain of causation in order to 

determine whether the events which occurred were 

foreseeable. If they were, the element of proximate 

cause is satisfied and liability will attach. 

In analyzing the instructions in Kitchen Krafters, the Court 

concluded that the instructions were inadequate and suggested that 

on remand a proper instruction on proximate cause with regard to 

foreseeability would state: 

In order for the defendant's negligence to be the 

proximate cause of the plaintiff Is injury, it must appear 

fromthe facts and circumstances surrounding the accident 

that the defendant as an ordinarily prudent person, could 

have foreseen that the plaintiff's injury would be the 

natural and probable consequence of the wrongful act. 

The proposed instruction in Kitchen Krafters would have been much 

more helpful in the present case because it focuses on the aspect 

that the defendant as an ordinarily prudent person could have 

foreseen that the plaintiff's injury would have been the natural 

and probable consequence of the wrongful act. Instruction No. 13 

as given is much less helpful. 

That is particularly true in the present case where we have 

a passive condition of danger created by the defendant Montana 

Power Company, which is followed in time by subsequent acts of 

negligence on the part of both Kessell and the plaintiff. This 
raises the issue of superseding, intervening causes. The 

instruction is totally inadequate in articulating the concept of 

superseding, intervening cause. Instruction No. 15-A as proposed 

by the defendant properly emphasized that if an act of negligence, 

such as that of the plaintiff or Kessell, subsequent to the first 

act of negligence was of such a character as not reasonably to be 

expected to happen in the natural sequence of events, then that 

later act is an independent, intervening cause. I believe that 

instruction to be an accurate statement of the law which cannot be 

derived from other instructions. It appears to me to be comparable 

to the instruction suggested in the majority opinion in Kitchen 

Krafters, which required the jury to determine if the defendant as 

an ordinarily prudent person could have foreseen that plaintiff's 

injury would be the natural and probable consequence of the 

defendant's negligence. To restate this in accordance with the 

factual determination which should have been required of the jury 

in the present case, the jury should have been instructed in such 

a manner as to require it to focus on whether or not the Montana 

Power Company, as an ordinarily prudent person, could have 

reasonably foreseen that Kessellls backing into the power line and 

the plaintiff's injury would be the natural and probable 

consequence of its failure to raise the power line above 20 feet 

in height. 

A proper instruction on this aspect was also defined by this 

Court in Jacobson v. State (1989), 769 P.2d 694, 698, 46 St.Rep. 

207, 212, where this Court approved the following instruction: 
An intervening cause will relieve a Defendant of 

liability for negligent acts where the cause is one which 

the Defendant could not reasonably anticipate under the 

circumstances. 

I conclude that there has been a failure to properly instruct 

the jury on the defendant's theory of the case and I would 

therefore reverse and remand. Ic-c?