No. 82-145 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

WILLIAM C. GRIFFEL, 

Plaintiff and Appellant, 

CHESTER FAUST, BAXT EISELE, 

et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Nilliam J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Agpellant: 

John J. Cavan; Sandal1 & Cavan, Billings, Montana 

For Respondents: 

Laurence R. Martin, Billings, Montana 

William S. Mather; Moulton, Bellingham, Longo 

& Mather, Billings, Montana 

-- 

Submitted on Briefs: May 19, 1983 

Decided: August 24, 1983 

Filed : UirG 2 4 1983 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Plaintiff brought this action in the District Court of the 

Thirteenth Judicial District, 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 for property damages. 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. At approximately 

6:00 p.m., Rick hooked his pickup to the haygrinder and proceeded 

to pull the haygrinder onto the frontage road for transport to 0 

Bar Feeders, east of Laurel, Montana. After driving a short 

distance, Rick noticed the pickup lights began to dim. Rick continued on the frontage road for approximately 200 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 shine backwards from the rear of the 

haygrinder for night operation. Rick then left the vehicles and 

crossed the frontage road and Interstate 90 to find a farmhouse 

from where he could call for help. As Rick returned he noticed 

the plaintiff's truck and trailer proceeding on the frontage road 

toward the disabled pickup and haygr inder . 

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 lights became so bright he was blinded. At that point, 
Griffel set his brakes and turned sharply to the left. The right 

side of his truck and trailer struck the left side of the 

haygr inder . Both vehicles were damaged. 

Griffel's vehicle came to rest in the ditch directly across 

from the haygrinder. Griffel sustained injuries to his ribs and 

his right arm. Robert Kettenring, the investigating highway 

patrolman, found no evidence that Griffel had been speeding prior 

to impact. 

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 

0 percent negligent and plaintiff was 100 percent negligent. The 

jury awarded defendants $9,055.95 for property damage to the 

pickup and haygrinder. Griffel appeals. 

The issues raised on appeal are: 

1. Whether the jury verdict is supported by substantial 

credible evidence; and 

2. Whether the District Court erred in refusing to give 

plaintiff's offered instruction no. 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. Only when 
there is a complete absence of probative facts to support the 

verdict does error occur. Strong v. State (1979), ---- Mont. 

Plaintiff argues there is not substantial evidence to support 

the jury's finding of no negligence on defendants' part. 

Plaintiff contends he proved defendants were negligent per se for 

their violation of sections 61-8-353, 61-9-201 and 61-9-217, MCA. 

This Court addressed this same issue in Gunnels 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 stop or 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. Scof ield (1979), 

Mont. ---- , 589 P.2d 1000, 1002, 36 

St.Rep. 185, 188. Questions of fact are for 

the jury to resolve, and should not be taken 

from the jury when reasonable men might draw 

different conclusions from the evidence. Heen 

v. Tiddy (1968), 151 Mont. 265, 269, 442 P.2d 

434, 436. In looking at the evidence in the 

light most favorable to the 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 flashlight by the defendant 

to warn approaching drivers, all bear upon the 

question of practicality. This Court will not 

disturb the jury's determination if the evidence furnishes reasonable grounds for diff erent conclusions. 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 set forth on the 

weight of the evidence including "hindsight" it may be tempting 

to conclude in the manner contrary to the conclusion of the jury. 

But, "only when there is a complete absence of probative facts to 

support the verdict does this occur ." 

Here, not only did the jury speak in the form of its verdict 

in favor of the defendants, but plaintiff, in moving 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), 154 Mont. 65, 

460 P.2d 90, held that the effect of the denial of a new trial 

motion is particularly apposite to this appeal. In addition, we 

noted in another case, Fordyce v. Hansen (1982), Mont. , 

"Once a District Court has considered and 

denied a motion for new trial, this Court will 

not lightly disturb that ruling absent evidence that it is clear, convincing and particularly free from doubt of the trial court's 

error. Schomyer v. Bourdeau (1966), 148 Mont. 

340, at 343, 420 P.2d 316, 317-18. No such 

showing was 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- 
dant was negligent because the floodlights deceived the plaintiff 

into thinking there was an oncoming vehicle in the westbound lane 

of traffic instead of the vehicle parked in his own lane of traff ic. 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 in his own 

lane. The evidence allows a reasonable conclusion that the 

plaintiff, in spite of seeing the lights, failed to slow down 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 

that a violation of the law is of 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 

there was no negligence on the part of the defendants which 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 ref used, 

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, the jury clearly found that the defendant's conduct was 

not the proximate cause of the accident. Question 2 of the special verdict asked, "Was the defendant's negligence, if any, a 

proximate cause of the accident?" The jury answered "No." 

Question 5 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 its conclusion. 

The judgment is affirmed . 

We concur: