NO. 85-149 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

WILLIAM A. KUKUCHKA, 

Plaintiff and Appellant, 

MICHAEL W. ZIEMET, and DOES I 

through V., inclusive, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kelly & Halverson, P.C.; Sheehy, Prindle & Finn, 

Patrick L. Prindle, Billings, Montana 

For Respondent: 

Crowley Law Firm; Steven Lehman, Billings, Montana 

Submitted on Briefs: Oct. 10, 1985 

Decided: December 20, 1985 

Filed: 

Clerk 
Kr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

The appellant, William Kukuchka, brought an action in 

the District Court of the Sixteenth Judicial District of the 

State of Montana against the respondent, Michael Ziemet, for 

negligence in the operation of a motor vehicle. Trial by 

jury resulted in a finding of no negligence. A motion for a 

new trial was denied. This appeal followed. 

We affirm. 

The issue presented for review is whether the jury 

verdict is supported by substantial credible evidence. 

At between 12:00 midnight and 12:30 a.m. on May 10, 

1981, the appellant and a companion were walking in a 

westerly direction along First Avenue in Ingomar, Montana. 

They were in the right lane on the side of the road and not 

facing the traffic in that lane. The appellant was on the 

right, the companion was to his left. The respondent was 

driving a vehicle in the same westerly direction. The 

vehicle struck the appellant from behind. 

First Avenue, at the point where the accident occurred, 

was unpaved and was without sidewalks or streetlamps. At the 

time of the accident, it was dark, cloudy, and damp in 

Ingomar. 

The respondent was driving at between 5 and 15 miles per 

hour. Although the respondent's headlamps were on and aimed 

properly, he did not see the appellant or the appellant's 

companion until he was 5 to 10 feet from them. He then saw 

only "shadows.'Vhe companion jumped to the left and the 

appellant was struck by the center of the vehicle, fell on 

the hood, and rolled off. The appellant did not recall the 
clothes worn but the respondent testified that the 

pedestrians were wearing dark clothes and his headlamps did 

not "illuminate" them. 

The appellant's testimony placed him at the far right 

edge of the road. The appellant argues that in order for him 

to have been struck hy the center of the vehicle the 

respondent would have to have been driving off of the road. 

The first issue is whether the jury verdict is supported 

by substantial credible evidence. This Court will not 

disturb a judgment on appeal where substantial evidence to 

support the judgment appears on the record and this is 

especially true when the District Court has upheld the 

sufficiency of the evidence on a motion for a new trial. 

Keil v. Glacier Park Inc. (1980), 188 Mont. 455, 461, 614 

P.2d 502, 505. The evidence wil-1- be viewed in a light most 

favorable to the prevailing party and, if the evidence 

conflicts, the credibility and weight given to the evidence 

is the province of the jury and not this Court. Mountain 

West Farm Bureau Mutual Insurance Company v. Girton (Mont. 

1985), 697 P.2d 1362, 1363, 42 St.Rep. 500, 501. A verdict 

will be changed only when it can be shown with reasonable 

conviction that the jury violated the law, gave way to 

passion, prejudice, or partiality, made a mistake of law or 

fact, or acted carelessly or perversely. Dieruf v. Gollaher 

(1971), 156 Mont. 440, 446, 481 P.2d 322, 325. Only when 

there is a complete absence of probative facts does error 

occur. Griffel v. Faust (Mont. 1983), 668 P.2d 247, 249, 40 

St.Rep. 1370, 1373. Substantial evidence is evidence such as 

will convince reasonable persons and on which such persons 

may not reasonably differ as to whether it establishes the 

prevailing party's case, and, if all reasonable persons must 
conclude that the evidence does not establish such case, then 

there is not substantial evidence. Cameron v. Cameron 

(1978), 179 Mont. 219, 228, 587 P.2d 939, 944-945. 

In viewing the record in a light most favorable to the 

prevailing party and in leaving the credibility and weight of 

the evidence to the jury, the record discloses probative 

facts that could convince reasonable persons that the 

respondent was not negligent. The respondent was traveling 

at a reasonable rate of speed. His headlamps were on and 

aimed properly. The appellant and his companion were walking 

on the road, facing away from traffic, and wearing dark 

clothes on a dark night. We hold that the substantial 

evidence test is met. 

Relevant to this issue is whether there is negligence as 

a matter of law in this case. The appellant refers to the 

case Aemisegger v. Herman (Mont. 1985), 697 P.2d 925, 42 

St.Rep. 420 as being comparable here and as support for 

negligence was a matter of law. This argument is without 

merit as applied. to the facts in this case. In Aemlsegger 

there was negligence as a matter of law because the person 

driving the vehicle struck from behind by the other vehicle 

was lawfully on the road, properly stopped, did nothing to 

cause, and could do nothing that would have avoided the 

accident. There was no question of comparative negligence in 

Aemisegger. Here, however, the appellant was walking in the 

road, facing away from traffic, and wearing dark clothes on a 

dark night. A question of comparative negligence exists. It 

would be error to find negligence as a matter of law in this 

case as the degree of negligence is a question of fact for 

the jury. See, Reid v. Little (Mont. 1984), 680 P.2d 937, 

940, 41 St.Rep. 644, 648. 
Affirmed. 

Fle Concur: 
Mr. Justice Frank B. Morrison, Jr. concurs as follows: 

I concur in the result for the reason that the plaintiff 

did not move for a directed verdict on liability nor did the 

plaintiff request the court to instruct the jury that the 

defendant was negligent as a matter of law. I feel that 

under the evidence in this case, and under the applicable 

law, the defendant was negligent as a matter of law but I 

feel that I have no choice, given the state of this record, 

but to vote for an affirmance. 

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