No. 13732 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

JEFFREY A. GILES, 

Plaintiff and Appellant and 

Cross-Respondent, - 

-vsFLINT VALLEY FOREST PRODUCTS, 

MONTANA STATE HIGHWAY COMMISSION, 

a Body Politic and Members thereof 

and H. J. ANDERSON, Montana State 

Director of Highways, 

Defendants and Respondents and 

Cross-Appellants. 

Appeal from: District Court of the Third Judicial District, 

Honorable Robert Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

Daniels and Mizner, Deer Lodge, Montana 

Ted L. Mizner argued, Deer Lodge, Montana 

For Respondents: 

Poore, McKenzie, Roth, Robischon & Robinson, 

Butte, Montana 

Garlington, Lohn and Robinson, Missoula, Montana 

Gary Graham argued, Missoula, Montana 

Submitted: October 16, 1978 

Decided: :- ;379 

- -? 

Filed: J&p - I 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Plaintiff brought an action in the District Court of 

the Third Judicial District, Powell County, to recover 

damages for injuries he suffered in a motor vehicle accident 

on June 11, 1974. The accident occurred approximately one 

mile west of Garrison Junction at the Warm Springs intersection where Interstate 90, a divided four-lane highway, 

meets an undivided two-lane road. At the time of the collision plaintiff was turning left off 1-90 in the transition 

area onto the frontage road at the Warm Springs intersection. His automobile was struck by a loaded logging truck 

driven by Walter Greig Godkin, an employee of defendant 

Flint Valley Forest Products. Godkin ignored signs in the 

area directing traffic to keep right and not to pass, and as 

a result, while improperly in the left lane, his truck 

struck plaintiff's vehicle. Plaintiff suffered severe 

injury to his left leg, which was nearly severed at the 

ankle. 

Plaintiff sued Flint Valley for their agent's allegedly 

negligent operation of the logging truck while in the course 

of his employment, and sued the State of Montana for the 

allegedly negligent construction, design and marking of the 

Warm Springs intersection and the transition area. On 

motion the allegations regarding negligent design and construction were dropped. Negligence as to marking alone was 

contended at trial. The jury returned a verdict against 

both defendants and awarded plaintiff $100,000. Both defendants moved for judgment notwithstanding the verdict and 

directed verdicts and, in the alternative, for new trial. 
plaintiff appeals from an order of the District Court 

granting a new trial to defendant State of Montana. The 

State cross-appeals from the court's refusal to dismiss the 

case against it, a motion on which was made at the close of 

plaintiff's case-in-chief. With respect to the allegations 

on design and construction, plaintiff argued during oral 

argument that those claims were still being advanced and 

that they should be considered by this Court. There was 

testimony by the engineers that went to questions of construction and design negligence, as well as to the problem 

of marking the accident area. 

It should be noted that during the trial defendants 

claimed they were unable, after diligently seeking, to find 

Godkin, the driver of the Flint Valley logging truck. 

Within days of the conclusion of the trial, counsel for 

Flint Valley located Godkin, a convict out on parole. He 

now comes up with a most articulate statement regarding the 

circumstances of the accident which had happened some years 

before on a stretch of road which he had driven (exactly, 

according to his affidavit) eleven times. In his affidavit, 

Godkin expresses his willingness to return to Montana for 

trial or to be deposed. 

To get a new trial where additional evidence has come 

to light, the moving party must demonstrate, inter alia, 

that it was not lack of diligence which failed to turn up 

the evidence at an earlier time. See Kerrigan v. ~errigan 

(1943), 115 Mont. 136, 144-45, 139 P.2d 533, 535. We find 

this evidence does not meet the standards set in ~errigan to 

warrant a new trial. 

Plaintiff appeals the District Court order granting a 

new trial, advancing a claim of invalidity for failure to 
particularly specify the grounds therefor as required by 

Rule 59(f), M.R.Civ.P., and contending the court abused its 

discretion in so ordering a new trial. As plaintiff requested and received from the District Court a statement of 

Certification of Issues on Appeal, it appears the first 

claim is moot. The State cross-appeals alleging the District Court erred in failing to dismiss the action against 

it at the end of plaintiff's case-in-chief. In meeting 

plaintiff's statement of the issues, the State claims that 

the order granting a new trial is supported by the evidence. 

The State argues a new trial was correctly ordered for 

four reasons: 

1. Plaintiff's attempt at introducing its Exhibit #28, 

a petition signed by the residents of the Garrison-Warm 

Springs area protesting the conditions of the highway in the 

vicinity of the accident, was harmful and prejudicial to the 

State such that it could not receive a fair trial. 

2. The award of damages was excessive, given under the 

influence of passion or prejudice, such that a new trial was 

properly ordered. Section 93-5603(5), R.C.M. 1947. 

3. The evidence was insufficient to support the verdict, especially in light of the testimony given by a highway patrolman to the effect that plaintiff was contributorily 

negligent such that plaintiff's recovery should have been 

barred. 

4. There was error in giving Instruction Nos. 28, 30, 

34, and 44, especially the first two which employed descriptive language, e.g., dangerous intersections, embodying 

conclusions which were within the province of the jury alone 

to make. 
In its Certification of Issues on Appeal, which the 

State deems "irregular" but to which it says it does not 

object, the District Court stated: 

". . . the only reason for . . . granting a 

new trial in this action is as follows: 

"The Appellant's attempted [sic] to introduce 

their [sic] Exhibit 28 . . . [which] was not 

listed in the pre-trial order as a proposed 

exhibit. As such its attempted introduction 

was an irregularity in the trial which prevented the defendants from having a fair 

trial, and is a grounds [sic] for a new trial 

under Section 93-5603(1), R.C.M. 1947." 

The purposes of requiring a statement of the reasons 

are to narrow the issues on appeal and to obviate the need 

for this Court to read the entire record to find the rationale 

underlying the ruling. Rule 59(f), M.R.Civ.P., ~dvisory 

Committee's note; Ballantyne v. The Anaconda Company (1978), 

Mont. , 574 P.2d 582, 35 St.Rep. 172. These purposes have been accomplished by the District Court's certification. In virtue of that certification of issues, we 

need not entertain the last three of defendant's reasons in 

support of the order for new trial. 

Granting a new trial is within the sound discretion of 

the trial court, and its order so granting a new trial will 

be reversed only if manifest abuse of that discretion is 

shown. Such an order will be upheld if it can be sustained 

on any ground stated in the order or opinion accompanying the 

order. Rule 59(f), M.R.Civ.P. The question thus is whether 

the order may be sustained on that ground specified by the 

District Court as the reason for granting the new trial. 

Plaintiff argues that defendant suffered no prejudice, 

such that it was denied a fair trial, because of plaintiff's 
attempt to offer its Exhibit #28. The court refused to 

admit the exhibit upon defendant's objection and further 

refused to grant defendant's motion for a mistrial. The 

jury at no time was allowed to view the exhibit. Counsel's 

questions were brief and did not convey information calculated to prejudice the jury. Without the exhibit the jury, 

at the conclusion of trial, had received evidence sufficient 

to form the foundation for the belief that the intersectiontransition area was so confusingly marked as to have contributed to the accident and thus to ascribe fault to the 

State. 

The State points to the District Court's certification 

of issues as evidence enough of the prejudice which it 

suffered by the attempted introduction of Exhibit #28, 

declaring that that alone demonstrates that the trial judge 

believed the jury was unduly influenced and that the prejudice had not been cured, even with instructions. The petition, drafted and signed by local residents, says the State, 

was likely of greater weight than the testimony of experts, 

and even the attempt to introduce it would persuade the jury 

to find against the State. 

We find the above argument insufficient to warrant the 

granting of a new trial in view of the fact here that it was 

not admitted as evidence. We have said the following in 

respect of granting a new trial: 

". . . it is not every error or defect that 

occurs during the course of a trial that 

furnishes grounds for granting a new trial. 

The court must disregard any error or defect 

which does not affect the substantial rights 

of the parties. (Rule 61, M.R.Civ.P.) To 

authorize granting a new trial, the error complained of must be an error 'materially affecting the substantial rights of [the aggrieved party] ' (section 93-5603, R.C.M. 1947) 

and the error must be of such character that 
refusal to grant a new trial 'appears to the 

court inconsistent with substantial justice.' 

(Rule 61, M.R.Civ.P.) In other words, if the 

substantial rights of the aggrieved party are 

not prejudiced, only 'harmless error' is 

involved not authorizing a new trial to be 

granted, Within these limitations, the trial 

court has broad discretion to grant a new 

trial and will not be reversed except for 

abuse thereof. [Citations omitted.]" Martello 

v. Darlow (1968), 151 Mont. 232, 235, 441 P.2d 

175, 176. 

As in Martello we find that, under the circumstances of this 

case, the error did not affect the complaining party's 

substantial rights. Therefore, the District Court abused 

its discretion in granting a new trial on this ground alone. 

Defendant's other issue bears brief consideration. 

That issue is whether the District Court erred in failing to 

dismiss the action against the State at the conclusion of 

plaintiff's case-in-chief. 

The State contends that plaintiff failed to prove 

either negligence or proximate cause such that the State 

could be chargeable for plaintiff's damages. Essential to 

plaintiff's case, says the State, was proof that the State 

was negligent in marking the highway at the site of the 

accident - and that such negligence was the legal (proximate) 

cause of the accident in which plaintiff received his injuries. The States further contends that assuming arguendo 

it was negligent in marking the area, that negligence alone 

cannot be transformed into the requisite proximate cause. 

At most, the State says, it furnished the conditions in 

which the injury occurred by the subsequent independent act 

of a third person, Flint Valley, and asks us to rely on 

Boepple v. Mohalt (1936), 101 Mont. 417, 436, 54 P.2d 857, 

862. Existence of conditions is not proximate cause; therefore, plaintiff's case fails for want of proof, according to 

the State. 
Although these arguments are sound as far as they go, 

they f a i l t o go far enough. It must be remembered, as this 

Court recently said, that ". . . where one has negligently 

caused a condition of danger, he is not relieved of responsibility for damage caused to another merely because the 

injury also involved the later misconduct of someone else." 

Halsey v. Uithof (1975), 166 Mont. 319, 327, 532 P.2d 686, 

690. An important qualification of this rule, however, was 

stated immediately thereafter. "But, this is true only if 

both negligent acts are in fact concurring proximate causes 

of the injury; and it is not true if the later negligence is 

an independent, intervening sole cause of the incident." 

Halsey, 166 Mont. at 327, 532 P. 2d at 690. In deciding 

Halsey, the Court entertained these thoughts: 

"In determining whether the negligence in 

creating a hazard (the truck stalled on the 

highway) was a proximate cause of the accident, this test is to be applied: Did the 

wrongful act, in a natural continuous sequence 

of events, which might reasonably be expected 

to follow, produce the injury? If so, it is 

a concurring proximate cause of the injury 

even though the later negligent act of another 

[Walker and McWhirk] cooperated to cause it. 

On the other hand, if the latter's act of 

negligence in causing the accident was of such 

a character as not reasonably to be expected 

to happen in the natural sequence of events, 

then such later act of negligence is the independent, intervening cause and therefore the 

sole proximate cause of the injury. (Citations omitted. ) 

"Applying the foregoing test to the instant 

situation, it was reasonable to foresee that 

the eastbound drivers [Walker and McWhirk] 

would see the truck parked on the highway. 

Considering Montana's case law and the federal 

court views on our law, this Court again finds 

that abstract foreseeability is not sufficient 

to meet the requirements of proximate cause. 

"Applying Jimison here, appellant was not 

obliged to foresee or anticipate that either 

Walker or McWhirk would come over the hill at 

such speeds that they could not stop within 

the assured clear distance ahead of them. 
Neither was appellant obliged to foresee that 

Walker would continue over the hill without 

braking after seeing the reflector at the top 

and should have realized there might be trouble on the other side. All of this leads to 

the conviction that the district court should 

have granted appellant's motion for a directed 

verdict at the close of respondent's case-inchief." Halsey v. Uithof, 166 Mont. at 328, 

532 P.2d at 690-91. 

A case should be taken from the jury only when the 

facts and reasonable inferences drawn from them, when viewed 

in a light most favorable to the party against whom the 

motion for a directed verdict is made, cannot sustain a 

finding for the party against whom it is made. See e.g., 

Thomas v. Merriam (1959), 135 Mont. 121, 126, 337 P.2d 604 

and cases cited therein. Here evidence supporting plaintiff's case was presented, and whether that evidence was 

sufficient to sustain a prima facie case undoubtedly was 

considered by the trial judge in making his ruling against 

defendant. The court properly let the case go to the jury. 

As to the other assertions of error made by the State, 

the following is dispositive. 

1. The State claims that the award of damages was 

excessive, given under the influence of passion and prejudice. As noted in Brown v. Columbia Amusement Co. (1931), 

91 Mont. 174, 193, 6 P.2d 874, no two cases are alike. The 

rule is that given we have a justice system which confides 

to juries the duty to determine the issues and to fix the 

amount of compensation to be paid, unless the award is such 

to shock the conscience and understanding, it must be accepted as conclusive. The award in the instant case is not 

so shocking as to be deserving of vacation. 

2. The States claims that the evidence was insufficient to support the verdict and that plaintiff's claim 
should have been barred because of his contributory negligence. he only testimony as to possible contributory 

negligence was that given as mere speculation by the highway 

patrolman who investigated the accident, but who did not 

witness it. Again, it was the task of the jury to determine 

if the factual circumstances were such that plaintiff could 

be deemed contributorily negligent; it did not so find. It 

concluded that plaintiff's testimony to the effect that he 

did check his rear-view mirror for upcoming traffic, and 

that he did signal so as to warn any upcoming traffic of his 

intention to turn left, was believable. 

3. The other objection centers on certain of the 

instructions given the jury. The State particularly objects 

to those numbered 28, 30, 34 and 44, putting emphasis on the 

first two. The charge is that the instruction contained 

language drawing conclusions which were within the province 

of the jury to make. While these instructions are not 

necessarily model, we do not find them to be so prejudicial 

to defendant as to be made the basis for a new trial. 

Again, error, to be made the basis for a new trial, must be 

so significant as to materially affect the substantial 

rights of the complaining party. See Martello v. Darlow, 

supra. 

The order of the District Court granting a new trial is 

set aside and the verdict and judgment reinstated. 
We Concur: 

Chief Justice 

2'. j; , i L/- d, 

Justices - I