No. 13732 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

JEFFREYA. 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: 

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- -? Filed:J&p - IMr. Justice John Conway Harrison delivered the Opinion of the Court.

Plaintiff brought an action inthe DistrictCourt of the Third Judicial District, Powell County, torecover damages for injurieshe suffered in a motor vehicle accident

on June 11, 1974. The accident occurred approximately one milewestof Garrison Junction attheWarm Springs intersectionwhere Interstate 90, a divided four-lane highway, meets an undivided two-lane road. Atthe timeof the collisionplaintiff was turning leftoff 1-90 in the transition

area onto the frontageroad attheWarm Springs intersection. Hisautomobile was struck by a loaded logging truck driven by Walter Greig Godkin, an employee of defendant FlintValley Forest Products. Godkin ignored signs in the area directing traffic tokeep right and not to pass, and as

a result, while improperly inthe leftlane, his truck struck plaintiff's vehicle. Plaintiff suffered severe injury tohis leftleg, which was nearly severed atthe ankle. Plaintiff sued FlintValley 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 constructionwere dropped. Negligence as tomarking alone was contended attrial. 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, inthe alternative, for new trial.plaintiff appeals from an order of the District Court granting a new trial todefendant Stateof Montana. The Statecross-appeals from the court's refusal todismiss the

case against it, a motion on which wasmade atthe 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 stillbeing advanced and that they should be considered by this Court. There was testimony by the engineers thatwent toquestions of construction and designnegligence, as well as tothe problem of marking the accident area. It should be noted thatduring the trialdefendants claimed they were unable, after diligently seeking, tofind Godkin, the driver of the FlintValley logging truck. Within days of the conclusion of the trial, counsel for FlintValley located Godkin, a convict out on parole. He

now comes up with a most articulate statement regarding the circumstances of the accidentwhich had happened some years before on a stretchof road which he had driven (exactly, according tohis affidavit) eleven times. In his affidavit, Godkin expresses hiswillingness toreturn toMontana for trial or tobe deposed. To get a new trialwhere additional evidence has come tolight, themoving party must demonstrate, inter alia, thatit was not lack of diligencewhich failed to turn up the evidence atan earlier time. See Kerrigan v. ~errigan (1943), 115Mont. 136, 144-45, 139 P.2d 533, 535. We find this evidence does notmeet the standards set in~errigan to warrant a new trial. Plaintiff appeals the DistrictCourt order granting a

new trial, advancing a claim of invalidity for failure toparticularly 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 DistrictCourt a statement of Certification of Issues on Appeal, it appears the first claim ismoot. The State cross-appeals alleging the District Court erred infailing todismiss the action against it atthe end of plaintiff's case-in-chief. Inmeeting plaintiff's statement of the issues, the Stateclaims that the order granting a new trialis supported by the evidence. The State argues a new trialwas correctly ordered for four reasons: 1. Plaintiff's attempt atintroducing itsExhibit #28,

a petition signed by the residents of the Garrison-Warm Springs area protesting the conditions of the highway inthe 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 trialwas properly ordered. Section 93-5603(5), R.C.M. 1947. 3. The evidence was insufficient to support the verdict, especially inlightof the testimony given by a highway patrolman tothe effectthatplaintiff was contributorily negligent such thatplaintiff's recovery should have been barred. 4. Therewas error ingiving InstructionNos. 28, 30, 34, and 44, especially the firsttwo which employed descriptive language, e.g., dangerous intersections, embodying conclusions which werewithin the province of the jury alone tomake.

### In its Certificationof Issues on Appeal,which the State deems "irregular"but to which it says it does not object, the District Court stated: 

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# .. the only reason for 

# .. .granting a new trial in this action is as follows: "TheAppellant'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; Ballantynev. The Anaconda Company (1978), Mont. 

## , 574 P.2d 582, 35 St.Rep. 172. These purposes have been accomplished by the District Court's certification. Invirtue of that certificationof issues,we need not entertain the last three of defendant's reasons in support of the order for new trial. Granting a new trial iswithin 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'smotion 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 conclusionof trial,had received evidence sufficient to form the foundation for the belief that the intersectiontransition area was so confusinglymarked as to have contributed to the accident and thus to ascribe fault to the State. The Statepoints 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 itwould persuade the jury to find against the State. We find the above argument insufficient to warrant the granting of a new trial inview of the fact here that itwas not admitted as evidence. We have said the following in respect of granting a new trial: 

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# . . 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 authorizegranting a new trial, the error complained of must be an error 'materially affecting the substantial rights of [theaggrieved party]

### ' (section 93-5603, R.C.M. 1947) and the error must be of such character that

### refusal to grant a new trial 'appearsto the court inconsistent with substantial justice.'

(Rule 61,M.R.Civ.P.) In other words, if the substantial rights of the aggrieved party are notprejudiced, only 'harmlesserror' is involved not authorizing a new trial to be granted, Within these limitations, the trial courthas broad discretion to grant a new trial and will not be reversed except for abuse thereof. [Citationsomitted.]" Martello v. Darlow (1968), 151Mont. 232, 235, 441 P.2d 175, 176. As in Martellowe 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 issuebears brief consideration. That issue iswhether 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 inwhich plaintiff received his injuries. The States further contends that assuming arguendo itwas negligent inmarking the area, that negligence alone cannot be transformed into the requisiteproximate cause. At most, the State says, it furnished the conditions in which the injury occurred by the subsequent independentact of a third person, FlintValley, and asks us to rely on Boepple v. Mohalt (1936), 101Mont. 417, 436, 54 P.2d 857, 862. Existence of conditions is notproximate 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 ogo far enough. Itmust be remembered, as this Court recently said, that

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.. where one has negligently caused a condition of danger, he isnot relieved of responsibilityfor damage caused toanother merely because the injury also involved the later misconduct of someone else." Halsey v. Uithof (1975), 166Mont. 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 actsare infactconcurring proximate causes of the injury; and it isnot true if the later negligence is

an independent, intervening sole cause of the incident." Halsey, 166Mont. at327, 532 P.2d at690. In deciding Halsey, the Court entertained these thoughts: "In determining whether the negligence in creating a hazard (thetruck stalled on the highway) was a proximate cause of the accident, this test is tobe applied: Did the wrongful act, ina 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 actof another [Walker and McWhirk] cooperated to cause it. On the other hand, if the latter's actof negligence incausing the accident was of such a character asnot reasonably tobe expected tohappen inthe natural sequence of events, then such later actof negligence is the independent, intervening cause and therefore the soleproximate 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 tomeet the requirements of proximate cause. "Applying Jimison here, appellant was not obliged to foresee or anticipate that either Walker orMcWhirk would come over the hillat such speeds that they could not stopwithin 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 theremight 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, 166Mont. 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 ismade, cannot sustain a finding for the party againstwhom it ismade. See e.g., Thomas v. Merriam (1959),135Mont. 121, 126, 337 P.2d 604 and cases cited therein. Here evidence supporting plaintiff's casewas 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 courtproperly 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 damageswas excessive,given under the influence of passion and prejudice. As noted in Brown v. Columbia Amusement Co. (1931), 91Mont. 174, 193, 6 

### P.2d 874,no two cases are alike. The rule is that givenwe have a justice systemwhich 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, itmust 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 asmere speculationby 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 circumstanceswere such that plaintiff could be deemed contributorily negligent; it did not so find. It concluded thatplaintiff's testimony to the effect that he did check his rear-viewmirror 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 languagedrawing conclusionswhich were within the province of the jury to make. While these instructions are not necessarilymodel,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

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