### No. 82-145 INTHE SUPREME COURTOF THE 

### STATEOF MONTANA 1983

WILLIAM C. GRIFFEL, Plaintiff andAppellant,

CHESTERFAUST,BAXT EISELE, et al., Defendantsand Respondents.

APPEAL FROM: DistrictCourt of theThirteenthJudicialDistrict, Inand for the County of Yellowstone, TheHonorableNilliam J. Speare, Judgepresiding.

COUNSELOF RECORD: ForAgpellant: JohnJ. Cavan; Sandal1 & 

### Cavan,Billings, Montana For Respondents: Laurence

### R. Martin, Billings,Montana William 

### S. Mather;Moulton, Bellingham, Longo & 

### Mather, Billings, Montana

-- 

### Submittedon Briefs: May 19,

### 1983 Decided: August 

### 24, 1983

Filed: 

## UirG

## 2

# 41983

ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.

Plaintiff brought this action in the District Court of the ThirteenthJudicialDistrict, Yellowstone County, seeking damages for personal injury and property damage. Defendants counterclaimed for property damage. After a jury trial, the jury returned a verdict in favor of defendants and awarded them $9,055.97 forpropertydamages. Plaintiff appeals. On December 18, 1979, defendant Rick Eisele, an employee of defendant C & B Haygrinders, was grinding hay at the Patten Davidson Feedlot, west of Park City, Montana. Atapproximately 6:00 p.m., Rickhooked hispickup to thehaygrinder and proceeded topull the haygrinder onto the frontage road for transport to 0 Bar Feeders, east of Laurel, Montana. After driving a short distance, Ricknoticed the pickup lightsbegan to dim. Rickcontinued on the frontage road for approximately200 yards when the pickup lights went out completely, and the pickup engine died. Rick pulled the pickup and haygrinder to the side of the road. Rick estimated the left side of his vehicles came to a 

### rest approximately five feet from the center line of the highway. Rick had no flares or warning devices so he turned on four white floodlights which are attached to the rear of the haygrinder. The floodlights shinebackwards from the rear of the haygrinder for night operation. Rick then leftthe vehicles and crossed the frontage road and Interstate90 to find a farmhouse from where he could call for help. AsRick returned he noticed theplaintiff's truck and trailerproceeding on the frontage road toward the disabledpickup and haygrinder

# . Griffel observed the floodlights approximately one-half mile from where the pickup and haygrinder were parked. Griffel thought the lights were on some kind of farm implement and because the lights were white he assumed the vehicle was coming toward him. Griffel put on his jake brake to slow his truck until the lightsbecame sobrighthe was blinded. Atthatpoint,Griffel sethisbrakes and turned sharplyto the left. The right side of his truck and trailer struck the left side of the haygrinder

# . Both vehicleswere damaged. Griffel's vehicle came to rest in the ditch directly across from the haygrinder. Griffel sustained injuries to hisribs and his right arm. Robert Kettenring, the investigating highway patrolman, found no evidence that Griffel had been speeding prior toimpact. On September 16, 1980, Griffel filed a complaint in the 

### District Court of the Thirteenth Judicial District

## , Yellowstone County, seeking damages for property damage to his truck and trailer and personal injury. Defendants counterclaimed seeking damages for property damage to the pickup and haygrinder. After

a jury trial the jury returned a verdict finding defendants were 0percent negligent and plaintiff was 100percent negligent. The jury awarded defendants $9,055.95 for property damage to the pickup and haygrinder. Griffel appeals. The issuesraised on appeal are: 1. Whether the jury verdict 

### is supported by substantial credibleevidence; and 2. Whether the District Court erred in refusing to give plaintiff's offered instructionno. 38. Plaintiff first contends there 

### is not substantial evidence necessary to support the jury verdict. The jury found first, defendants were 0 percent negligent, second, plaintiff was 100 percent negligent, and third, plaintiff

### 's negligence was the proximate cause of property damage to defendants' vehicles. We must determine whether the evidence presented at the trial is sufficient to support these findings. In considering the sufficiency of evidence, we apply a limited standard of review. Where a fact issue is presented before a court sitting with a jury, and there is substantial evidence to support the jury verdict, the verdict will stand. Solberg 

### v. County of Yellowstone (1983)I Mont

# . ,659 P.2d 290, 40 St.Rep. 308. Onlywhenthere 

### is a complete absence of probative facts to support the verdict does error occur. Strong v. State (1979), ---- Mont.

Plaintiff argues there 

### is not substantialevidence to support the jury's finding of no negligence on defendants' part. Plaintiff contendshe proved defendantswere negligentper se for their violationof sections 61-8-353, 61-9-201 and 61-9-217, MCA. This Court addressed this same issue inGunnels v. Hoyt (1981),

---- Mont

# . ----

## , 633 P.2d 1187, 1192, 38 St.Rep. 1492, 1496, 

### a
case involving a strikingly

### similar fact situation. 

### We stated: 

### " In order to prove negligence per se, the plaintiff was required to prove that the defendants neglected 

### a duty imposed upon them by statute. Williams v. Maley (1967), 150 Mont. 261, 267, 434 P.2d 398, 401; Conway v. Monidah Trust Co. (1913), 47 Mont. 269, 278, 132 P. 26, 27. In pertinent part, section 61-8-353, MCA, provides that no person shall stop or leave standing any vehicle upon the main traveled part of the highway when it 

### is practical to stopor leave such vehicle off of such part of said highway. What 

### is "practical" in any situation clearly depends upon 

### all of the surrounding facts and 

### circumstances. See Lyndes v. Scofield (1979), Mont. ----

## , 589 P.2d 1000, 1002, 36 St.Rep. 185, 188. Questionsof fact are for the jury to resolve, and should not be taken from the jury when reasonable men might draw differentconclusions from the evidence. Heen v. Tiddy (1968), 151Mont. 265, 269, 442 P.2d 434, 436. In looking at the evidence in the lightmost favorabletothe defendant, we find that the defendants could have stopped the Volkswagen closer to the right edge of the pavement and further off the main traveled area; but we also find that the weather conditions, the darkness, the hill, the absence of white lines, head lights and tail lights, and the use of the flashlightby the defendant towarn approaching drivers, 

### allbear upon the questionof practicality. ThisCourt willnot disturb the jury's determination if the evidence furnishes reasonable grounds for differentconclusions. Payne v. Sorenson (1979), Mont

# . , 599 P.2d 362, 365, 36 St.Rep. 1610, 1%r3:- We do not find a violation of section 61-8-353, MCA, as a matter of law.

### " This rationale applies to 

### all three 

### of the alleged statutory violations. It 

### is not the function of this Court to agree or disagree with the jury verdict. We search only for sufficient evidence and where we have such evidence in the record, our job

### is complete. This Court, in a recent opinion, Solberg v. County of Yellowstone (1983), Monte ----

## , 659 P.2d 290, 40 St.Rep. 305, noted that in testing the principles above setforth on the weight of the evidence including "hindsight" it may be tempting toconclude inthemanner contraryto the conclusion of thejury. But, "onlywhen there 

### is a complete absence of probative factsto support theverdictdoes thisoccur

# ." Here, not only did the jury speak in the form of 

### its verdict in favor of the defendants, but plaintiff, inmoving for a new trial, asserted that the verdict of the jury as it relates to question 1 of the special verdict, finding no negligence on defendant's part, was contrary to the great weight of the evidence and to the instructions of the court. This motion was briefed and heard by Judge Speare who ruled against the plaintiffs. This Court, in Strong v. Williams (1969), 154Mont. 65, 460 P.2d 90, held that the effect of the denial of a new trial motion 

### is particularlyapposite to thisappeal. In addition, 

### we noted inanother case, Fordyce v. Hansen (1982), Mont. 

## ,

"Once a 

### District Court has considered and denied amotion for new trial, thisCourt will not lightly disturb that ruling absent evidence that it 

### is clear, convincing and particularlyfreefrom doubt of the trialcourt's error. Schomyer v. Bourdeau (1966), 148Mont. 340, at 343, 420 P.2d 316, 317-18. 

### No such showingwas made here

# ." Plaintiff's argument 

### is directed at the decisions made by defendant Eisele after the vehicle he was driving left the feed lot. The evidence on the driving and the argument as to the nature of these decisions was presented to the jury by both parties. The verdict signifies that the jury concluded that the defendant made reasonable decisions under the circumstances and in light of the instructions, and that the defendant did what a reasonable and prudent person would have done under the 

### circumstances. Concerning the floodlights, plaintiff argues that the defen-

-5-dantwas negligent because the floodlightsdeceived theplaintiff intothinking therewas an oncoming vehicle inthewestbound lane of traffic instead of the vehicleparked in hisown laneof traffic. Such testimony was contradicted by that of the deputy sheriff and highway patrol officer, both of whom reported that the plaintiff had admitted seeing the lights ahead of him approximately one-half 

### mile away from the impact and inhis own lane. The evidence allows a reasonable conclusion that the plaintiff, in spiteof seeing the lights, failed to slowdown and keep his vehicle under control so as to keep from striking the parked unit. Plaintiff argues that defendant was negligent per 

### se, as a matter of law under jury instruction 15. That instruction stated thataviolation of the law 

### isof no consequence unless it is the proximate cause of the accident. Under the special verdict, the jury concluded that the defendants 

### were not negligent and that therewas no negligence on thepart of thedefendantswhich was a proximate cause of the accident. This disposes of plaintiff's argument. Plaintiff further argues that section 61-9-217, MCA, was violated and that plaintiff's instruction 38 which was refused, should have been given by the court. We find the instruction inapplicable. On 

### its face the instruction refers to the duty of

a driver of a motor vehicle with respect to "spot lamps" and not the type of lights which were on the vehicle here in question. The statute requires such "spot lamps" to be turned off upon approaching another vehicle from either direction. That is not the factual case here involved where the haygrinder was stationery. Here, thejury clearlyfound thatthe defendant's conductwas not theproximate cause of the accident. Question2 of the special verdict asked, "Was the defendant's negligence, if any, a proximate cause of the accident?" The jury answered "No." Question5 asked, "Was the plaintiff William C. Griffel's negli-gence, if any, a proximate cause of the alleged damages?" The jury answered "Yes." We find substantial evidence upon which the jury could have based 

### itsconclusion. The judgment 

### is affirmed

# .

We concur: