No. 80-115 INTHE 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"

## 1981Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court.
EarlBurns brought thisaction forpersonal injury and property damages arisingout of a collision between Burns' fuel delivery truck and 

### a U. & R Express chip truck driven by Larry Woll. U & R Express counterclaimed fordamages 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 nearTroy, Montana, inLincoln County. Burns 

### wasmaking fueldeliveries, proceeding ata speed of about 20 

### miles per hour and intending tomake a left-hand turn from the highway into a private driveway. While Burns 

### was inthe process of turning, his truck

### was struckby defendant's truck which was attempting topass. The impact occurred inthe left-hand lane of travel. The evidence showed skid marks of 72 feet3 inches prior to the point of impact. Burns testified thathe signalled for 200 feetormore before starting his turn and that he looked inhisrear view 

### mirror when he signalled, 

### saw no vehicles behind him, and did not check again before he turned. Atno 

### time did he 

### see the chip truck. He 

### was rendered unconscious and has no recollection of the accident itself. His

### lastmemory 

### was of proceeding down the road intending 

### to turn but not yet beginning 

### to turn. The driver of the chip truck, LarryWoll, testified that he first

### saw the fuel truckwhen 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 hisprevious delivery stop. In any event, the chip truck

### was proceeding 

### at a faster speed and 

### as it approached the fuel truck Woll decided topass. Woll testified thathe 

### sawno turn signal of any kind. AsWoll 

### was attempting 

### to pass, Burns startedmoving over the center line. Woll tried 

### to avoid him but 

### as Burns continued toturn, the vehicles collided. The chip truck went out of control and tipped over, and the fuel truck 

### was sent towards the right sideof the road. Woll 

### was unhurt and Burns


### was injured. On appealBurns contends there

### was insufficient evidence tosupport the jury verdict. The 

### major premise of his argument is that the physical factsmade the testimony 

### of the defendant inherently incredible. Further, Burns requests reversal due 

### to the trial court's rejection of hisproposed jury instruction regarding the duty of an approaching motorist inthe event a turn signal 

### is timelymade. Respondent 

### asserts that there

### was substantial evidence 

### to support the jury verdict and thatBurns


### was negligent in failing to signal and in failing tomaintain a proper lookout. It 

### is the general rule that an order denying a new trial willnot be reversed where the evidence is conflicting if there is substantial evidence to support the verdict. Frank v. BurlingtonNorthern, Inc. (1975), 167Mont. 293, 538 P.2d 333; Casey v. Northern PacificRy. 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. BurlingtonNorthern, supra. Appellant argues that the testimony of the driver of the chip truck

### was atvariance with the physical facts to such an extent thathis story

### was impossible, that the jury should not have believed him. The chip truck driver testified thathe 

### was first
aware of an impending leftturn when he 

### was 20 

### to 25 feetfrom the point of impact. The skid marks lefton the highway by the chip truck

### were 72 feet long. Taking into account the reaction 

### timeand the 

### time it takes for the brakes to lock, Burns argues that something alertedWollof the impending turn

### more than 100 feetfrom the point of impact. He 

### asserts thatWoll must haveseen 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), 165Mont. 312, 528 P.2d 215; Hayward v. Richardson Construction Co. (1959), 136Mont. 241, 347 P.2d 475. The fallacy in appellant's argument is that the variance between the physical factsand Woll's testimony does not necessarily lead to
a conclusion thatWoll must have seen the turn signal. The jury is the judge of the credibility of the witnesses and the weight tobe 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 WollIstestimony that he 

### saw no turn signal. When there 

### are inconsistencies in the testimony of a witness, the jury may accept the testimony inpart and reject it inpart, 

### or may disregard it altogether. No11v. City of Bozeman (1977), 172Mont, 447, 564 P.2d 1296. It is common knowledge thatpersons frequently fail to estimate speed and distanceson the highway with accuracy. Further, the chip truck driver testified thathis truck

### was 70 feet long and thathe 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 hisproposed instruct ion which stated: "In the event 

### a left-turning motorist has signalled for a leftturn 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, includingCuster v. Brewer (1974), 163Mont. 519, 518 P.2d 257 and Farris v. Clark (1971), 158Mont. 33, 487 P.2d 1307, did not involve left-turning motorists. The primary duty ofavoiding 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 statementof 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 affirmed.

Chief Justice 

# n We concur: I