No. 13635 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

SAMUEL J. YERKICH and SHARONA. YERKICH, Plaintiffsand Respondents,

-vsMITCHELL J. OPSTA, Defendants and Appellants.

Appeal from: District Court of the Second Judicial District, Honorable James Freebourn, Judgepresiding. 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: 

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## " : '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 SharonA. 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 amotor 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 causewas heard by the District Court, sittingwith a jury. The jury returned a verdict for defendant, specifically finding that defendantwas not negligent. Plaintiffs entered amotion for new trial and requested the jury verdict be vacated. Briefs

were submitted and a hearing on themotion was conducted before the District Court onAugust 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 evidencewas insufficient to justify the verdict for Defendant in that the clear and uncontroverted evidence established the plaintiffs' daughterwas crossing Harrison Avenue and was near the center line, that the defendant took no evasive action to avoid striking the decedent, that therewere no cars in the west lane of southbound traffic on HarrisonAvenue to obstruct Defendant's view, that the child was in plain view to be seen if Defendanthad looked, that Defendanthad 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 Yerkichwas struckby the left front of defendant'svehicle,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 shewasstruck; 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 frontof 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 iswhether 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: "Whena new trialmay be granted. The former verdict or other decisionmay 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 suchparty:

"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 rulingwill not be disturbed on appeal in the absence of a clear showing of manifest abuse of discretion. Nont

# . Brothers v. Town of Virginia City, (1976), 

### , 558 P.2d 464, 33 /~t.~e~. 1250;Gunderson v. Brewster, (1970),154Mont. 405, 466 P.2d 589. Thereareinsufficient grounds for the trial judge to grant amotion for new trial when conflicting testimony

was received into evidence at the trial and the order granting themotion 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. 

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re Hardy Estate, (1958),133Mont. 536, 326 P.2d 692.The present case exemplifies the situationwhere on-thescene witnesses offered conflicting testimony at the trial. The transcript of the proceedings reveals conflicting testimony in the followingparticulars: (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 victimwas 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 HarrisonAvenue under a "DONOT WALK" pedestrian traffic signal. Other on-the-scene witnesses testified defendant's vehicle was travelingwithin the speed limit and in a nonreckless manner when the accident occurred. Investigatingpolice 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: