No. 13635 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

SAMUEL J. YERKICH and 

SHARON A. YERKICH, 

Plaintiffs and Respondents, 

-vsMITCHELL J. OPSTA, 

Defendants and Appellants. 

Appeal from: District Court of the Second Judicial District, 

Honorable James Freebourn, Judge presiding. 

Counsel of Record: 

For Appellants: 

Michael J. McKeon argued, Anaconda, Montana 

For Respondents: 

Roe, Kiely and Harrington, Butte, Montana 

Thomas F. Kiely argued, Butte, Montana 

George Sarsfield argued, Butte, Montana 

Submitted: March 6, 1978 

Decided: 4p6 ; 1978 

Filed: &ph I, - - " : 'r" 
Honorable M. James Sorte, District Judge, delivered the Opinion 

of the Court: 

Defendant Mitchell J. Opsta appeals from the order of 

the District Court, Silver Bow County, granting plaintiffs' 

motion for new trial and setting aside the verdict of the jury. 

On January 2, 1976, plaintiffs Samuel J. and Sharon A. 

Yerkich filed suit in the District Court seeking damages for 

the wrongful death of their eleven year old daughter, Dana Sue. 

The cause of action arose out of a motor vehicle accident in 

which an automobile driven by defendant struck and killed Dana 

when she attempted to cross a city street in Butte, Montana. 

The cause was heard by the District Court, sitting with a jury. 

The jury returned a verdict for defendant, specifically finding 

that defendant was not negligent. Plaintiffs entered a motion 

for new trial and requested the jury verdict be vacated. Briefs 

were submitted and a hearing on the motion was conducted before 

the District Court on August 13, 1976. 

On August 17, 1976, the District Court issued its order 

granting plaintiffs' motion for new trial and set aside the 

verdict on the grounds: 

"(a) That the evidence was insufficient to 

justify the verdict for Defendant in that the 

clear and uncontroverted evidence established 

the plaintiffs' daughter was crossing Harrison 

Avenue and was near the center line, that the 

defendant took no evasive action to avoid striking 

the decedent, that there were no cars in the west 

lane of southbound traffic on Harrison Avenue to 

obstruct Defendant's view, that the child was in 

plain view to be seen if Defendant had looked, 

that Defendant had the clear duty to be on the 

lookout ahead and laterally ahead and failed so 

to do. 

"(b) That standing alone, defendant's own testimony 

proves conclusively that he was driving his vehicle 

in the east lane of southbound traffic on the fourlane highway in a 25-mile per hour speed zone; that 

Dana Yerkich was struck by the left front of defendant's vehicle, was thrown into the air by the 

impact, and landed on the left fender of defendant's 

automobile; that she had crossed one lane of traffic 

and was almost through the second lane when she was 
struck; that defendant's view of the girl had 

to be unimpaired and that if he had maintained 

a proper lookout, he would have seen Dana Yerkich 

from the time she emerged into the street and 

crossed almost entirely in front of defendant's 

automobile; that by exercising the degree of 

care required by Law, and taking proper evasive 

action, defendant could have avoided striking 

the child with such force as to cause fatal 

injuries." 

The controlling issue on appeal is whether the District 

Court erred in setting aside the verdict of the jury and 

granting plaintiffs' motion for a new trial. 

A motion for new trial in this matter is controlled by 

Rule 59, M.R.Civ.P., and section 93-5603, R.C.M. 1947, which 

provides : 

"When a new trial may be granted. The former 

verdict or other decision may be vacated and a 

new trial granted, on the application of the 

party aggrieved, for any of the following causes, 

materially affecting the substantial rights of 

such party: 

"6. Insufficiency of the evidence to justify the 

verdict or other decision, or that it is against the 

law. 

This Court has held the District Court has broad discretion in granting or denying motions for new trial. The 

District Court ruling will not be disturbed on appeal in the 

absence of a clear showing of manifest abuse of discretion. 

Brothers v. Town of Virginia City, (1976), Nont . , 558 P.2d 

464, 33 

/~t.~e~. 1250; Gunderson v. Brewster, (1970), 154 Mont. 405, 

466 P.2d 589. There are insufficient grounds for the trial 

judge to grant a motion for new trial when conflicting testimony 

was received into evidence at the trial and the order granting 

the motion for new trial indicates the trial judge chose to 

rely on a line of conflicting testimony different from the 

testimony relied on by the jury in rendering its verdict. In 

re Hardy Estate, (1958), 133 Mont. 536, 326 P.2d 692. 
The present case exemplifies the situation where on-thescene witnesses offered conflicting testimony at the trial. 

The transcript of the proceedings reveals conflicting testimony in the following particulars: 

(1) The rate of speed of the 1957 Ford automobile 

which was driven by defendant and struck the victim. 

(2) The driving lane in which defendant's automobile 

was proceeding in a southerly direction on Harrison Avenue. 

(3) The location of parked motor vehicles at the scene 

of the accident. 

(4) The location of the victim at the time of impact. 

(5) Whether the victim was struck by the automobile 

when she was in or near the crosswalk or whether she had darted 

from between parked cars and was struck outside of the crosswalk. 

Although the testimony of witnesses conflicted, substantial credible testimony elicited from on-the-scene witnesses 

corroborated defendant's contention that he entered the intersection of Harrison Avenue and Cobban Street under a green signal 

light and that Dana attempted to cross Harrison Avenue under a 

"DO NOT WALK" pedestrian traffic signal. Other on-the-scene 

witnesses testified defendant's vehicle was traveling within 

the speed limit and in a nonreckless manner when the accident 

occurred. Investigating police officers at the scene of the 

accident failed to find evidence to warrant the issuance of a 

traffic citation to defendant. 

Upon review of the transcript of the District Court 

proceedings, we find substantial credible evidence to support 

the verdict of the jury. The District Court erred when it 

granted plaintiffs' motion for new trial and to set aside the 

verdict of the jury. 

The order of the District Court granting plaintiffs' 
motion for new trial is reversed. 

sitting with the Court. 

We concur: