No. 13014 

### IN THE SUPRLTVIE COURT OF THE STATE OF MONTANA 19 75

TYYRA J. ERICKSON and NILS G. ERICKSON, Plaintiffs and Appellant,

LUELL J. PERRETT, Defendant and Respondent.

Appeal from: District Court of the Fourth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellant: Boone, Karlberg & Haddon, Missoula, Montana Sam E. Haddon argued, Missoula, Montana For Respondent: Worden, Thane, Haines and Williams, Missoula,

Montana Shelton C. Williams argued, Missoula, Montana

i Filed: -I Submitted: November 

### 5, 1975 Decided: 

## ;)h~~

3 ibl 17.k. .JusticeWesley Castles delivered the Opinion of the Court.

This isan appeal from a judgment for defendant entered in the district court, Missoula County. Plaintiffs seek review of a jury verdict for defendant in 

### a personal injury and property damage action. T.lotions by plaintiffs pursuant toMontana Rule of Civil Procedure 50(b), for a new trial or in the alternative forjudgment notwithstanding the verdict were denied. The instant case grew out of an automobile accident which occurred on December 4, 1972, near the intersection of Brooks Street and South Avenue inMissoula under extremely icy conditions. An automobile driven by defendant Luell J. Perrett collided with the rear of a car driven by plaintiff Nils G. Erickson inwhich hiswife plaintiff Tyyra J. Erickson was riding. Atthe time of the collision plaintiff 

### rick sons' vehicle

was headed south on Brooks and was stopped in the right-hand traffic lanebehind other stopped vehicles waiting for the traffic signal at the intersection of Brooks and South to turn from red to green. Defendant Perrett's car was also proceeding south on Brooks in the right-hand lane, attempting to turn left into the middle lane. After moving two-thirds of theway into the middle lane, defendant's vehicle turned back into theright lanebecause

a panel truck had entered the middle lane in front of him. Even though defendant was traveling slowly, about ten miles per hour, the icy street conditions prevented him from stoppingbefore he hit plaintiffs1vehicle. Property damage to defendant's and plaintiffs' vehicles as a result of the accident was $78 and $94.84, respectively. Action was brought for property damage toplaintiffs1 automobile; for medical and hospital expenses, lost wages, pain and suffering and general damages from injuries to plaintiff 

### Mrs. Erickson; and for damages for lost employment toMr. Erickson while he was caring for his wife.The matter came on for trialon November 25, 1974. plaintiffs' motion for a directed verdict attheclose of the evidence was denied and thejury found for defendant on the issue of liability. Subsequently plaintiffs moved, pursuant to Rule 50(b), M.R.Civ.P., for a new trialorjudgment notwithstanding the verdict. The district court denied plaintiffs' motions and they appeal. Presented forreview isthe correctness of the district court's rulings on plaintiffs' motions, aswell aswhether the evidencewas sufficient touphold the verdict. While the tests for directingjudgment notwithstanding theverdict or a new trialaredissimilar, 

### we consider the denial of both Rule 50(b) motions together, inview of the discretion granted to the district court and this Court by Rule 50(b). This discussion in 5A ~oore's Federal Practice Para. 50.11, p.2363, supports that discretion: "Rule 50(b) provides for threepossible dispositions of a motion made thereunder. If there 

### is evidence to support the verdict, the trialcourt must enterjudgment 

### in accordancewith the verdict; it cannot order a new trial. If the evidence 

### is insufficient topermit a verdict to stand under therigid testsheretofore described, the trialcourt is given a discretionary power either to orderjudgment for the moving party, to grant a new trial, orto order dismissal without prejudice under Rule 41. y: y: ik" Cases from the United States Supreme Court have held this discretion inFederal Rule 50(b)

## ,which ~ontana's rule 

### is patterned after, also applies toreviewby appellate courts. Bryan v. United'States, 

### 338 U.S. 552, 70 S.Ct. 317, 94 L ed 335, citedwith approval inNeely v. Martin K. Eby Construction Co., 386 U.S. 317, 322, 87 S.Ct. 1072, 18L ed 2d 75. Appellants argue that there is insufficient evidence to support the verdict inview of the respondent's breach of duty established by these Montana statutes:Section 32-2144, R.C.M. 1947: "(a) A person operating or driving a vehicle of any character on a public highway of this state shall drive it in a careful and prudent manner, and ata rate of speed no greater than is reasonable and proper under the conditions existing atthe point of operation, taking into account the amount and character of traffic, condition of brakes, weight of vehicle, grade and width of highway, condition of surface, and freedom of obstruction to view ahead, and he shalldrive it so asnot to unduly orunreasonably endanger the life, limb, property, mother rights of a person entitled to the use of the street orhighway.

"(c) The driver of a vehicle shall, consistentwith paragraph (a), drive atan appropriatereduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hillcrest, when traveling upon a narrow or winding roadway, and when a special hazard existswith respect topedestrians or other 'traffic orby reason of weather or highway condition.II Section 32-2153, R.C.M. 1947: "The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject tothose limitations, exceptions, and special rules hereinafter stated: "(a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shallpass tothe left thereof ata safe distance and shallnot again drive to the right side of the roadway until safely clear of the overtaken veh3.cle. "(b) Except when overtaking and passing on theright ispermitted, the driver of an overtaken vehicle shall giveway tothe right in favor of the overtaking vehicle on audible signal and shallnot increase the speed of his vehicle &ti1completely passed by the ove;taking vehicle.II Section 32-2159(a), R.C.M. 1947: "Whenever any roadway has been divided into two(2) or more clearly marked lanes for traffic the following rules in addition to allothers consistent herewith shall apply "(a) A vehicle shallbe driven asnearly aspracticable entirelywithin a single lane and shallnot be moved from such lane until the driver has first ascertained that such movement can be made with safety.II Section 32-2160(a), R.

### C.M. 1947: "(a) The driver of a motor vehicle shallnot follow another vehicle more closely than isreasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway. IIAppellants arguebreach of duty established by these statutes is conclusive asto the issue of negligence and could not be overlooked by 

### a jury. Respondent submits that there is substantial evidence to support thejury verdict. However, 

### we

reverse the district court. We note that the mere happening of an accident is insufficient evidence of negligence. Flansberg v. Montana Power Co., 154Iqont. 53, 58, 460 P.2d 263; Fries v. Shaughnessy, 159 Mont. 307, 310, 496 P.2d 1159. Furtherwhen thebreach of a statutory duty 

### isalleged, that duty required by statutemust be the efficient or proximate cause of the damages fornegligence to be predicated on the violation of the statute. Joki v. IJlcBri.de, 150Mont. 378, 436 P.2d 78; Rauh v. Jensa, 161Mont. 443, 445, 507 P.2d 520.

### In the instant case the above statutesdo contemplate protection of driverswho are stopped waiting for traffic signals tochange. ~espondent's unsuccessful attempt tochange lanes and his failure to stopbecause of the icyroad conditions involved breaches of the duties imposed by the statuteswhich ledproximately tothe accident. These Montana cases where the defendant claimed that a factor over which he lacked control excused his conduct--Custer Broadcasting Corp. v. Brewer, 163Mont. 519, 518 P.2d 257 (swirling snow), Farris v. Clarlc, 158Mont. 33, 

### 487 P.2d 1307 (failure of power steering), and 14cDonough v. Smith, 86 Mont. 545, 284 P. 542 (oncoming vehicle)---are applicable to the instant case. Thus through failure tocontrol his vehicle negligence per sewas established on the part of respondent which thejury could not overloolc, McNair v. Eerger, 92 Mont. 441, 15 P.2d 834; Burns v. Fisher, 132Fiont. 26, 313 P.2d 1044; Williams v. E'laley, 150Idont. 261, 434 P.2d 398.Stillrespondent argues that therewas a sufficientbasis for thejury tofindno negligence on his part because of the intervening negligence of 

### a panel truclcwhich allegedly suddenly entered the middle lane in front of him. This mysterious panel truck, which could not be located nor 

### its driverproduced at trial, isalsothebasis for the injection of the doctrine of sudden emergency as support for thejury verdict. No sudden emergency instructionwas given thejury in thiscase. Thus it

was not the law of the case and reliance on it as support for the verdict 

### is ill-founded. With regard torespondent's assertion of intervening negligence, we must find that therewas sufficient evidence to establish that 

### a new, independent, and unforeseeable cause produced the accident in order toaffirmthejury verdict. Plize v. Roclcy Itfountain Bell Telephone Co., 35 Mont. 521, 532, 100 P. 971; Cowden et a1.v. Crippen, 101Mont. 187, 206, 53 P.2d 98; 2 Restatement of Torts 2d, 

### 55 440,442. In the instant case the evidencewas not sufficient to establish such a superceding cause. Respondent 

### was traveling on

a busy, icy street, approaching 

### a traffic signalwhere cars continually change lanes toget into theproper position for their intended direction of travel atthe intersection. Itwas not shown tobe unforeseeable that a car or truckwould swerve in front of respondent ashe was attempting tochange lanes. Nor was thismysterious panel truck shown tobe an independent cause of the accident given the.inability of respondent to stop his own vehicle on the icy street. Because therewas insufficient proof of an intervening cause of the accident respondent must be held legallyresponsible for the established negligence. Only through application of the doctrine of sudden emergency could a jury in thiscase determine that therespondent

was not liable for his conduct which proximately caused propertydamage. Since thejury was not instructed on sudden emergency, therewas an insufficient legalbasis for the verdict. Accordingly, it was error for the district court not to set aside the verdict and deny theRule 

### 50(b) motions. Sincewe have set aside the district court's judgment because of thenegligence established attrial, this Court, in the exercise of sound discretion provided for inRule 50(b), M.R.Civ.P., must determine whether to directjudgment for appellants or toorder a new trial. United Statesv. Weiler, 385 F.2d 63, 66; Bryan v. United States, supra; Neely v. Martin I<. Eby Construction Co,, supra. This Court isof the opinion that a new trial in the instant casewould better serve the ends of justice. Here, there isone appellant with a complex medical history dating from a time prior tothe accident and existingatthe time of the accident. For thejury to clearly comprehend the extent of the injuries and other damages resulting proximately from this accident, the complete case should be before it. Even though property damages were small, the proof of them

was clear and not disputed. The substantial damages, if any,

were related to the alleged injuries and the alleged consequential damages arisingtherefrom. Thus, for a jury to ignoreboth proof of negligence and proof of property damages arising therefrom necessitates a new trial. By the same token, for thejury to fully appreciate the entirealleged damage situation, a new trialrather than a directed verdict on the issue of liabilityonly isrequired. Finally, in view of our decision to grant a new trial and respondent's assertion of the doctrine of sudden emergency,
we feel further discussion of propriety of such an instruction in the instant case necessary. On review of the record we emphasize chat the district court properly refused the sudden emergency instruction. Such an instruction isnot available to those whosenegligence has produced the emergency. Peabody v. Northern Pacific itai.lway Co., 

### 80 Mont. 492, 497,498, 261 P. 261; 

### 2 Restatement of Torts 2d $296. It is also improper where the emergency is anticipated or foreseeable. Peabody v. Northern Pacific Railway Co.

## , supra. Foreseeabilityof emergencies on highways isdiscussed in Prosser

on Torts, 4th ed. p. 170: "A further qualification which must be made is that some 'emergencies' must be anticipated, and the actor must be prepared tomeet them when he engages inan activity inwhich they are likely to arise. Thus under present day traffic conditions, any driver of an automobile must be prepared for the sudden appearance of obstacles in the highway or of other vehicles at intersections, just as one who sees a child on the curb may be required toanticipate its sudden dash into the street, and his failure to act properly when they appear may be found to amount tonegligence." If the district court 

### is presented a similar record on retrial, sudden emergency instructions should be refused. Judgment isreversed and the cause isremanded tothe district court with orders togrant a new trial.

Justice 

### /y21:. Justice ''ra~ilcI-. ia~~eLi, J~s~e~~cir~g. I would affirm thejudglilent based on ~11rjury veidl~i. Chis case involves an appeal from (1) an order denying ~J-dzlc~irs a new trial, 

### (2) an order denying entry of judgment ~~irtwithstanding the verdict, and 

### (3) thejudgment. The district court's order denying plaintiffs

## ' motion izoi -i riew trial is clearly correct. The motion was defective in railing 110 statethe grounds with particularity. Halsey v. Uithof,

Nor are plaintiffs entitled to entry of judgment notw~~hsrdnding the verdict for the reasons stated in the majority pinion. The majority concludes that the evidence is insufficient to juppurt the jury verdict because defendant's negligence isestabI-ished as a matter of law and failure of proof of intervening negligence on the part of the driver of the panel truck. In my view these areboth jury questions decided adversely to plaintiffs. A jury could well conclude that the accident here was nirc caused by negligent driving. The evidence viewed in the light
ruost favorable tothe prevailing party shows that defendant was driving at a speed of ten miles an hour on an icy street and was able to stop the forward motion of his carwithout impact, but chat it slidor skidded sideways when the forward momentum ceased ;iriking the rear of plaintiffs' car. Nor do I believe that proximate cause is established as

i ndcier of law. This ispatently a jury question resolved against plaintiffs. For the foregoing reasons, I dissent.

Justice.