No. 80-115 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

EARL R. BURNS, 

Plaintiff and Appellant, 

-vsU & R EXPRESS, a Mont. Corp., 

Defendant and Respondent. 

Appeal from: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, The Honorable 

Robert Holter, Judge presiding. 

Counsel of Record: 

For Appellant: 

Murphy, Robinson, Heckathorn & Phillips, Kalispell, 

Montana 

For Respondent : 

Garlington, Lohn & Robinson, Missoula, Montana 

Filed: 

Submitted on Briefs: November 26, 1980 

Decided : 4 " 1981 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Earl Burns brought this action for personal injury and 

property damages arising out of a collision between Burns' fuel 

delivery truck and a U. & R Express chip truck driven by Larry 

Woll. U & R Express counterclaimed for damages to its truck. 

Burns appeals from the judgment entered on the jury verdict in 

favor of the defendant on its counterclaim. 

The accident occurred on the afternoon of November 8, 

1977, on Highway No. 202 near Troy, Montana, in Lincoln County. 

Burns was making fuel deliveries, proceeding at a speed of about 

20 miles per hour and intending to make a left-hand turn from the 

highway into a private driveway. While Burns was in the process 

of turning, his truck was struck by defendant's truck which was 

attempting to pass. The impact occurred in the left-hand lane of 

travel. The evidence showed skid marks of 72 feet 3 inches prior 

to the point of impact. 

Burns testified that he signalled for 200 feet or more 

before starting his turn and that he looked in his rear view 

mirror when he signalled, saw no vehicles behind him, and did not 

check again before he turned. At no time did he see the chip 

truck. He was rendered unconscious and has no recollection of 

the accident itself. His last memory was of proceeding down the 

road intending to turn but not yet beginning to turn. 

The driver of the chip truck, Larry Woll, testified that 

he first saw the fuel truck when it was parked at some garbage 

containers, that the fuel truck backed onto the highway and proceeded south at a slow speed. Burns denied being parked at the 

containers and said he pulled onto the highway from the driveway 

of his previous delivery stop. In any event, the chip truck was 

proceeding at a faster speed and as it approached the fuel truck 

Woll decided to pass. Woll testified that he saw no turn signal 

of any kind. As Woll was attempting to pass, Burns started 
moving over the center line. Woll tried to avoid him but as 

Burns continued to turn, the vehicles collided. The chip truck 

went out of control and tipped over, and the fuel truck was sent 

towards the right side of the road. Woll was unhurt and Burns 

was injured. 

On appeal Burns contends there was insufficient evidence 

to support the jury verdict. The major premise of his argument 

is that the physical facts made the testimony of the defendant 

inherently incredible. Further, Burns requests reversal due to 

the trial court's rejection of his proposed jury instruction 

regarding the duty of an approaching motorist in the event a turn 

signal is timely made. Respondent asserts that there was 

substantial evidence to support the jury verdict and that Burns 

was negligent in failing to signal and in failing to maintain a 

proper lookout. 

It is the general rule that an order denying a new trial 

will not be reversed where the evidence is conflicting if there 

is substantial evidence to support the verdict. Frank v. 

Burlington Northern, Inc. (1975), 167 Mont. 293, 538 P.2d 333; 

Casey v. Northern Pacific Ry. Co. (1921), 60 Mont. 56, 198 P. 

141. When the surrounding circumstances make the testimony of a 

witness highly improbable or incredible , that testimony is not 

"substantial evidence." Frank v. Burlington Northern, supra. 

Appellant argues that the testimony of the driver of the chip 

truck was at variance with the physical facts to such an extent 

that his story was impossible, that the jury should not have 

believed him. The chip truck driver testified that he was first 

aware of an impending left turn when he was 20 to 25 feet from 

the point of impact. The skid marks left on the highway by the 

chip truck were 72 feet long. Taking into account the reaction 

time and the time it takes for the brakes to lock, Burns argues 

that something alerted Woll of the impending turn more than 100 

feet from the point of impact. He asserts that Woll must have 
seen his turn signal. 

It is true that undisputed physical facts control over 

testimony when the physical facts admit of only one 

interpretation. Bush v. Albert D. Wardell Contractor, Inc. 

(1974), 165 Mont. 312, 528 P.2d 215; Hayward v. Richardson 

Construction Co. (1959), 136 Mont. 241, 347 P.2d 475. The 

fallacy in appellant's argument is that the variance between the 

physical facts and Woll's testimony does not necessarily lead to 

a conclusion that Woll must have seen the turn signal. The jury 

is the judge of the credibility of the witnesses and the weight 

to be given testimony. Matter of Holm's Estate (1979), Mont. 

, 588 P.2d 531, 36 St.Rep. 11. The jury may have rejected 

Woll's estimates of distances in favor of the evidence of the 

length of skid marks without disbelieving Woll Is testimony that 

he saw no turn signal. When there are inconsistencies in the 

testimony of a witness, the jury may accept the testimony in part 

and reject it in part, or may disregard it altogether. No11 v. 

City of Bozeman (1977), 172 Mont, 447, 564 P.2d 1296. It is common knowledge that persons frequently fail to estimate speed and 

distances on the highway with accuracy. Further, the chip truck 

driver testified that his truck was 70 feet long and that he 

thought the back tires must have caused the skid marks. We 

conclude that there was substantial evidence to support the jury 

verdict. 

Appellant next urges reversal due to the trial court's 

rejection of his proposed instruct ion which stated : 

"In the event a left-turning motorist has 

signalled for a left turn for 100 feet or more, 

the primary duty of avoiding an accident lies 

with the vehicle approaching from the rear." 

The requested instruction is not an accurate statement of the law 

as applicable to the instant case. The authorities cited by 

appellant, including Custer v. Brewer (1974), 163 Mont. 519, 518 

P.2d 257 and Farris v. Clark (1971), 158 Mont. 33, 487 P.2d 1307, 

did not involve left-turning motorists. The primary duty of 
avoiding the collision was not necessarily on the passing 

motorist in the situation of the instant case. 

Furthermore, the instructions as a whole adequately 

informed the jury of the duties of the passing motorist and the 

left-turning motorist. The proposed instruction, even if it were 

a correct statement of the law, would have added nothing to the 

jury's understanding of the applicable law. 

For the foregoing reasons, the judgment of the District 

Court is af f irmed. 

Chief Justice 

n We concur: I