No. 84-359 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

RONALD L. WELNEL, 

Plaintiff and Respondent, 

-vsWOODROW WILSON HALL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable Nat Allen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Landoe, Brown, Planalp, Kommers & Lineberger; 

Gene I. Brown, Bozeman, Montana 

For Respondent: 

Lynaugh, Fitzgerald & Hingle; William P. Fitzgerald, 

Billings, Montana 

Submitted on Briefs: Nov. 20, 1954 

Decided: February 7, 1985 

1". ' ! Filed: .!% 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Defendant appeals from a iudgment of the District Court 

of the Seventh Judicial District, Richland County, after jury 

trial, finding the defendant 100% negligent in causing injuries to the plaintiff. We affirm. 

Plaintiff, Welnel, was injured when his motorcycle 

collided with a car driven by defendant, Ha3.1, at 5:30 p.m. 

on July 11, 1980, in Sidney, Montana. Hall approached an 

intersection from the north and began making a left turn in 

front of oncoming traffic. Welnel approached the intersection from the south and struck the front passenger side of 

Hall's car after Welnel had attempted to avoid the collision. 

Loren Young had turned onto the street just in front of 

Welnel prior to the accident. This was about three and 

one-half to four blocks before the intersection where the 

accident occurred. His wife, Jacqueline Young, was a passenger in his pickup. This was across the street from the 

Michelin Tire Store. Loren Youi~g testified that as they 

accelerated slowly, Welnel passed them in a normal fashion 

and took a position in front of them. The speed limit decreases at this point from thirty-five to twenty-five miles 

per hour. Welnel was about ninety feet ahead of them and 

maintained that distance as they drove north. Jacqueline 

Young also testified that Welnel passed them in a very normal 

way and when he took a position in front of them he was about 

a quarter of a block ahead and they stayed the same distance 

apart down the street. Welnel testified he was down-shifing 

and bringing his speed down to the limit at about the twenty-five mile an hour sign (by the Michelin store). He also 

testified that down-shifting causes the engine to rev up. 

Welnel was a big man with hair shorter than counsel for 

plaintiff's hair (a point of reference at trial) and. riding a 
large, one-of-a-kind, distinctively colored Harley-Davidson 

motorcycle. He testified that he was wearing a flannel 

shirt, cut off at the sleeves, at the time of the accident 

and that he was not wearing a jacket. 

Hall attempted to introduce the testimony of John 

Herberg, owner of the Michelin dealership, to impeach the 

testimony of Welnel and the Youngs. Herberg would have 

testified that he was outside locking the door of his store 

between five and five-thirty or possibly as late as five to 

six on the day of the accident. He saw a motorcycle go by in 

excess of forty or fifty miles per hour a-nd still accelerating. The rider was dark complected with bushy hair longer 

than counsel for plaintiff's hair and wearing a black leather 

jacket. The motorcycle was a black Harley-Davidson. He 

observed the motorcycle for about three seconds over a distance of about a hundred yards. He would also have testified 

that he could not positively identify Welnel as the rider and 

that he may not have noticed other motorcycles while he was 

outside his store. He did not note the size of the driver or 

the motorcycle. 

The sole issue on appeal is whether the trial court 

improperly excluded Herberg's testimony when it was offered 

to impeach the competence and veracity of plaintiff's witnesses. Since the specific accounts of what occurred at the 

accident scene and the extent of Welnel's injuries have no 

bearing on this issue, they will not be discussed. 

There is no question that Herberg's testimony was too 

remote from the scene cf the accident to be relevant to the 

disputed issues at trial-. His testimony would be relevant if 

it in fact impeached evidence offered by plaintiff since Rule 

401 M. R. Evid. defines relevant evidence to include that 

offered for impeachment purposes. However, even relevant 

evidence may he excluded if its probative value is 
substantially outweighed by a danger of prejudice, confusion 

of issues, or misleading of the jury, Rule 403 M.R.Evid. 

This determination of admissibility is within the discretion 

of the trial judge (State v. Rollins (1967), 1.49 Mont. 481, 

428 P.2d 9-6T) and will not be disturbed unless there is 

*& 

manifest abuse (Gunderson v. Brewster (1970), 154 Mont. 405, 

466 P.2d 589). 

The trial judge did not abuse his discretion in ruling 

Herberg's testimony inadmissible. The probative value was 

minimal in that he could not positively identify Welnel as 

the operator of the motorcycle he saw; his view occurred 300 

yards before the accident scene; the time frame was unclear; 

and there was the possibility that other motorcycles could 

have gone past unobserved by him. The judge noted the possible prejudicial effect by stating that it might be considered 

as prior negligence of Welnel. Counsel for plaintiff also 

pointed out the possible prejudicial effect of characterizing 

the driver as a stereotypical biker traveling at a high rate 

of speed. Thus, assuming the offered testimony was sufficient to contradict testimony offered by Welnel, its prejudicial effect would have outweighed its minimal probative 

value. 

Herberg's testimony was also properly excluded because 

it lack.ed a sufficient foundation. Evidence relevant to a 

particular purpose may be excluded in the court's discretion 

where no proper foundation has been established. Rule 

104(b), M.R.Evid. and Nelson v. Hartman (Mont. 1982), 648 

P.2d 1176, 39 St.Rep. 1409. There are insufficient facts 

connecting the motorcyclist Herberg saw with Welnel. 

Herberg's description of both the driver and the motorcycle 

vary compared to Welnel's appearance and his motorcycle at 

the time of the accident. Appellant did not establish similarities between Herberg's motorcyclist and hilnel through 
the descriptions given by Loren Young, Jacqueline Young, 

investigating Officer Dopp or Welnel himself. Herberg's 

estimation of the time he observed the northbound motorcyclist was also vague. 

The trial judge ma.de his decision after considering all 

pertinent factors and absent abuse that. decision will not be 

overturned on appeal. We therefore hold tha.t Herberg's 

testimony was properly excluded because the prejudicial 

effect of the testimony outweighed any probative value and 

the testimony lacked sufficient foundation. 

The judgment is affirmed. 

We concur: 1 

Justice / 

/