No. 91-585 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

MICHAEL BROCKIE, as Personal 

Representative of the Estate 

of ARIC C. BROCKIE, Deceased, 

Plaintiff and Appellant, 

OM0 CONSTRUCTION, INC., 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kurt M. Jackson, Hoyt and Blewett, Great Falls, 

Montana 

For Respondent: 

Michael J. Milodragovich and Margaret L. Sanner, 

~ilodragovich, Dale and Dye, Missoula, Montana 

Submitted on Briefs: June 11, 1992 
Justice R. C. McDonough delivered the Opinion of the Court. 

Michael Brockie, personal representative of the estate of Aric 

C. Brockie, appeals from an order of the First ~udicial ~istrict, 

Lewis and Clark County, denying his motion for a new trial. We 

affirm in part and reverse in part. 

The following issues are presented on appeal: 

1. Whether the District Court erred in denying Brockie's 

motion for a new trial; 

2. Whether the District Court erred in refusing to instruct 

the jury that Omo Construction, 1nc.I~ violation of the Manual on 

Uniform Traffic Control Devices constituted negligence as a matter 

of law; 

3. Whether the District Court erred in refusing to instruct 

the jury that mere compliance with traffic regulations does not 

necessarily constitute due care; and 

4. Whether the District Court erred in excluding certain 

impeachment evidence and by admitting certain prejudicial evidence. 

On November 26, 1989, Aric Brockie was killed in a one car 

accident on 1-94 near the Huntley Interchange east of Billings. 

Aric Brockie was the passenger in a vehicle driven by a friend. 

The two were returning to Billings after a Thanksgiving holiday in 

Miles City. The vehicle skidded as it approached an icy bridge. 

The car slid off the highway into the median where it struck a 

flasher board owned by Omo Construction, Inc. (Omo). 

Omo was performing traffic control and guardrail work on 1-94 

as part of a construction contract with the State Highway 

2 
Department. On Wednesday, November 22, 1989, Omo had installed a 

new guardrail and median hazard closures on a bridge structure. In 

order to erect the guardrail on the median sides of the bridge, the 

crew was required to close the passing lane of the interstate in 

each direction of travel. Omo erected a number of advance warning 

signs for each lane plus two portable "arrow boards" or Itflasher 

boardsn which directed traffic with flashing arrows. 

At the end of the day, on Wednesday, November 22, 1989, the 

foreman on the project directed worker Michael Stookey to remove 

the equipment from the highway and store it for the Thanksgiving 

holiday. Stookey removed the advance warning signs to a location 

east of the bridge next to the highway right-of-way fence. He 

pulled other signs to the parking lot of the Longhorn Cafe. Upon 

instructions from the foreman he placed the flasher boards in the 

middle of the median at either end of the bridge. 

Highway Patrol Officer Virginia Kinsey drove past the area 

several times during her shift on November 26, 1989. She testified 

that she had the authority to have construction equipment removed 

if it was hazardous to the public. She saw the flasher board and 

did not believe it was in a hazardous area. Officer Kinsey 

responded to the Brockie accident and along with two other 

officers, made measurements at the scene. She testified that the 

flasher board was 27 feet 2 inches from the yellow median strip of 

the westbound lane at the time of impact. ~raffic control 

provisions of the contract required compliance with highway safety 
standards. A "30 foot clear" zone requirement prohibits storage of 

a traffic control device within 30 feet of the traveled highway. 

Omo's expert, Dr. Thomas Blotter, an accident reconstruction 

expert, opined that the flasher board was parked between 34 and 48 

feet from the westbound lane at the time of impact. Dr. Blotter 

testified at trial, basing his analysis on motion theory and 

kinematics. Since Brockie did not put an expert on the stand, Dr. 

Blotter's testimony went uncontroverted. 

Francis H. Rice, the jury foreman, after the close of the 

evidence, went to the library of Carroll College to do some 

research about Dr. Blotter's testimony. Rice had taken some 

physics courses in college, and by affidavit, stated he wished to 

refresh his memory about physics principles concerning kinematic 

theory and motion theory. He stated his research clarified the 

testimony of Dr. Blotter. Rice stated that he mentioned to only 

one other juror that over the weekend he had done some research 

into kinematic theory and motion theory. However, affidavits of 

two separate jurors stated Rice mentioned his research to them in 

the jury room. By affidavit Rice stated he did not mention his 

research during deliberations. 

Brockie's counsel, upon hearing that Rice had done some 

independent research, filed a motion for a new trial with the 

District Court. The District Court denied Brockie's motion . This 

appeal followed. Our standard of review is whether or not the 

District Court abused its discretion in denying Brockie's motion 
for a new trial and ruling on evidentiary matters. Steer, Inc. v. 

Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601. 

I 

Whether the District Court erred in denying Brockie's motion 

for a new trial. 

The District Court found that the actions of Mr. Rice amounted 

to jury misconduct. However, relying on Arthur v. Washington Iron 

Works (1978), 22 Wash.App. 61, 587 P.2d 626, the District Court 

found that Rice's conduct was not prejudicial to Brockie. In 

Arthur, the jury foreman went to the public library and looked for 

handbooks on rigging and informed the other jurors they were 

available. He also examined the yellow pages to see if the experts 

who testified were listed. Arthur, 587 P.2d at 628. The court of 

appeals upheld the trial court's determination that the library 

incident went to the credibility of the witness and that the 

telephone directory incident gave extra status to the expert 

listed. Arthur, 587 P.2d at 631. 

Generally, courts in both civil and criminal cases have held 

that to warrant a new trial, the misconduct must be such that 

actual or potential injury results to the losing party. Section 

25-11-102, MCA, governs grounds for a new trial. It provides in 

part: 

The former verdict or other decision may be 

vacated and a new trial granted on the 

application of the party aggrieved for any of 

the following causes materially affecting the 

substantial rights of such party; 

(1) irregularity in the proceedings of the 

court, jury, or adverse party or any order of 

5 
the court or abuse of discretion by which 

either party was prevented from having a fair 

trial. 

(2) misconduct of jury. Whenever any one or 

more of the jurors have been induced to assent 

to any general or special verdict or to a 

finding on any question submitted to them by 

the court by a resort to the determination of 

chance, such misconduct may be proved by the 

affidavit of any one of the jurors. 

See also Rule 606, M.R. Evid. 

We agree with the District Court that the actions of juror 

Rice constituted jury misconduct, as shown by his affidavit, and 

the affidavit of two other jurors. The question before us remains 

whether actual or potential injury to Brockie resulted from Rice's 

conduct, and denied Brockie a fair trial. We have said in Putro v. 

Baker & Mannix Electric, Inc. (1966), 147 Mont. 139, 410 P.2d 717, 

that the "guiding principle in our legal system is fairnessn and 

that both sides of the lawsuit are entitled to a fair trial. Putro 

at 147, 410 P.2d at 722. We went on to state that there is no 

practical method to determine whether the outcome would be 

different had the misconduct not occurred. We said: "The trial 

court should have declared a mistrial in justice to itself as well 

as to parties, so that a fair trial may result and the verdict when 

rendered may be entitled to the respect of both parties and the 

confidence of the court." Putro at 148, 410 P.2d at 722. 

In Putro a newspaper article disclosed that the defendant 

plead guilty to manslaughter, in a related criminal case, as a 

result of the accident in question. One of the jurors clipped the 

article and brought it into the jury room. The jurors stated that 
the article did not influence their verdict. Further, two of the 

jurors stated that they dropped the subject because they did not 

think they should read the article. We held that the possibility 

of influence existed, and probable prejudice resulted. PutrQ at 

149, 410 P.2d at 723. 

In Ahmann v. American Fed. Sav. & Loan Ass'n (1988) , 235 Mont. 

184, 766 P.2d 853, we held that any influence the alleged remark 

of the bailiff may have had on the jury did not affect the rights 

of the Ahmanns, and affirmed the District Court's denial of 

Ahmann's motion for a new trial. In Ahmann the jurors raised a 

question forthe judge. The bailiff said the judge wouldn't answer 

it until after the trial. However, he did not preclude the jurors 

from pursuing the matter. Ahmann at 191, 766 P.2d at 857. 

In the present case, Omo presented the expert testimony of Dr. 

Blotter at the trial. Dr. Blotter testified to the theory of 

kinematics and motion theory in relation to the location of the 

flasher board at the time of impact. Dr. Blotter's testimony was 

not contested or controverted by an expert, but was contested by 

the testimony of highway patrolman Kinsey. The location of the 

flasher board was at the very heart of the evidence. Francis Rice 

by affidavit, related that he went to the Carroll College library 

to research the theory of kinematics and motion theory and it 

clarified Dr. Blotter's testimony. Affidavits of two other jurors 

confirmed he had mentioned this to them in the jury room. Probable 

prejudice resulted from Rice's misconduct. Rice's independent 

alleged clarification of Dr. Blotter's testimony affected the 
rights of Brockie for any statements by Rice in the jury room 

relative to the placement and positions of the sign, could in 

effect make Rice a witness as to those jurors to whom he mentioned 

his research. 

We conclude the District Court abused its discretion in 

denying Brockie's motion for a new trial. Because we remand for a 

new trial, the balance of the issues are instructive only. 

I1 

Whether the District Court erred in refusing to instruct the 

jury that Omo Construction, Inc.'s violation of the Manual on 

Uniform Traffic Control Devices constituted negligence as a matter 

of law. 

The District Court refused Brockie's jury instruction that a 

violation of the Manual on Uniform Traffic Control Devices (MUTCD) 

is negligence per se. In 1955 the legislature authorized the State 

Highway Department to adopt a manual on traffic control devices. 

The State Highway Commission adopted the MUTCD in 1971. In 1981 

the legislature amended 5 61-8-202, MCA, to clarify which traffic 

control manual the highway department should adopt. The statute 

now states: "The department of transportation shall adopt a manual 

for a uniform system of traffic-control devices . . .I1 Section 61- 

8-202, MCA. If the legislature mandates a department to adopt 

rules but does not act further to adopt the rules, the rules do not 

become part of a statute by reference. Cash v. Otis Elevator Co. 

(1984), 210 Mont. 319, 326, 684 P.2d 1041, 1045. Here, the MUTCD 

is not incorporated by reference. The MUTCD is not a statute but 
an administrative regulation. Violation of the MUTCD is not 

negligence per se but evidence of negligence. See Williams v. 

Maley (1967), 150 Mont. 261, 434 P.2d 398, Herbstv. Miller (1992), 

- Mont. -, 830 P.2d 1268. 

We conclude that the District Court did not err in denying 

Brockie's proposed instruction that a violation of the MUTCD was 

negligence per se. 

Whether the District Court erred in refusing to instruct the 

jury that mere compliance with the traffic control regulations does 

not necessarily constitute due care. 

The District Court refused Brockie's instruction number 44. 

Instruction 44 Provided: 

If you find that defendant OM0 Construction, 

Inc. placed the arrow board more than thirty 

(30) feet from any traffic lane, you are 

instructed that defendant Omo Construction, 

Inc. was still required to comply with the 

provisions of its contract including the 

requirements of the MUTCD. 

Brockie argues that the District Court's refusal of this 

instruction encouraged the jury to conclude that mere compliance 

with the 30 foot clear zone constituted due care. The District 

Court also refused Brockie's No. 17 which instructed the jury that 

Omo had a duty to remove obstacles which may constitute an 

unreasonable danger to motor vehicles and a violation of that duty 

is evidence of negligence. 

However, the District Court provided the jury with proposed 

instructions 42 and 45 which provide respectively: 
INSTRUCTION NO. 42 

Ordinary care is not an absolute term, but a 

relative one. That is to say, in deciding 

whether ordinary care was exercised in a given 

case, the conduct in question must be viewed 

in light of all the surrounding circumstances, 

as shown by the evidence in the case. 

INSTRUCTION NO. 45 

On December 1, 1971, the Manual on Uniform 

Traffic Control Devices (MUTCD) , was adopted 

by the Montana Highway Commission as a 

standard or norm to be used for traffic 

control devices. 

Pursuant to the contract signed by the 

defendant Omo Construction, Inc., it was 

required to comply with the requirements of 

the MUTCD. If you find that defendant Omo 

Construction, Inc. violated any of the 

provisions of the MUTCD, you may consider such 

violation as evidence of Omo's negligence in 

this case. 

We conclude that the District Court's instructions properly 

instructed the jury. Therefore the District Court did not err in 

refusing Brockie's proposed instructions. 

Whether the District Court erred in excluding certain 

impeachment evidence and by admitting certain prejudicial evidence. 

The District Court granted Orno's motion in limine preventing 

Mr. Charlton, a retired Project Manager for the Highway Department, 

from testifying on certain matters. On the Monday following the 

accident, Mr. Charlton visited the accident scene and made some 

measurements of highway equipment stored by Omo. When Mr. Charlton 

arrived at the site, the flasher board in question had already been 

removed. He made measurements of the other flasher board on the 
other side of the bridge and equipment some distance from the 

accident site. The District Court ruled that only evidence 

concerning the accident would be relevant. 

On direct examination, Mr. Charlton testified that for 

safety's sake, obstructions should be completely removed from the 

median. On cross examination, Mr. Charlton testified that the 

other flasher board parked in the median on the other side of the 

bridge was outside the clear zone and in conformity with the 

requirements of the State of Montana. The District Court did not 

allow redirect examination about equipment unrelated to the 

accident, placed some two miles from the accident site. 

Brockie sought to 'impeach' Mr. Charlton through testimony 

that this other equipment, although in compliance with the clear 

zone, should be removed for safety reasons. Impeachment is 

typically used to test the veracity of a witness. On direct 

examination, Mr. Charlton testified that obstructions should be 

removed for the sake of safety. However, he admitted on cross that 

the other flasher board conformed with State requirements. Any 

testimony stating that equipment two miles from the accident site 

should have been removed for safety's sake would not be proper 

impeachment. The placement of the equipment two miles from the 

accident site is irrelevant, thus testimony regarding this 

equipment would not be proper impeachment. 

Brockie argues that Mr. Charlton's testimony that the flasher 

board on the other side of the bridge was in the clear zone and in 

conformity with the requirements of the State of Montana was 
prejudicial based on Rule 403, M.R.Evid. Rule 403 excludes 

evidence if its probative value is substantially outweighed by the 

danger of unfair prejudice. Because Mr. Charlton testified that 

any obstructions should be removed for the sake of safety, we do 

not find this testimony prejudicial. 

We conclude that the District Court did not err in refusing 

Mr. Charlton's testimony regarding the other equipment. 

For the reasons set forth above, we reverse and remand to the 

District Court for proceeding not inconsistent with this opinion. 

Justices 
Justice Terry N. Trieweiler specially concurring and dissenting. 

I concur with the majority's conclusion under Issue I that 

Michael Brockie is entitled to a new trial, based upon misconduct 

of the juror, Francis Rice. 

I also concur with the majority's conclusion under Issue IV 

that the District Court did not abuse its discretion by limiting 

the redirect examination of Robert Charlton. However, I do not 

agree with all that is said in the majority's rationale for that 

conclusion. Specifically, I do not agree that the questions posed 

to Charlton on redirect examination were improper for purposes of 

impeachment. However, I do agree that the District Court has broad 

discretion when it rules on the propriety of cross-examination or 

redirect examination. In this case, I agree that that discretion 

was not abused. 

I dissent from the majority's conclusions under Issues I1 and 

I11 which relate to the District Court's jury instructions. 

I conclude that based on our prior case law, and based upon 

the better public policy, the jury should have been instructed that 

a violation of the Manual on Uniform Traffic Control Devices is 

negligence as a matter of law. 

While the majority relies on our prior decisions in Cashv.Oh 

ElevatorCompany (1984), 210 Mont. 319, 684 P.2d 1041, and Williamsv. 

Maley (1967), 150 Mont. 261, 434 P.2d 398, I conclude that our 

decision in Martel v. Montana Power Company (1988) , 231 Mont. 96, 752 

P.2d 140, is controlling. 
The WiIhrns decision is not relevant to our conclusion on this 

issue because it was decided in 1967, and as pointed out by the 

majority, the statute upon which it relied was materially amended 

in 1981. At the time that Wlliams was decided, 5 32-2134, R.C.M. 

(now 5 61-8-202, MCA), made no reference to the Manual on Uniform 

Traffic Control Devices. Therefore, the Highway Commission had no 

direct mandate from the legislature to consider or adopt that 

manual. The majority opinion points out that that section was 

amended in 1981. However, when quoting the statute, the majority 

fails to include the amended portion. Significantly to our 

decision, the full statute now reads as follows: 

The department of transportation shall adopt a 

manual for a uniform system of traffic-control devices 

consistent with this chapter for use upon highways within 

the state. This uniform svstem shall correlate with and 

so far as ~0sSible conform to the manual on uniform 

traffic control devices, as amended. [Emphasis added.] 

Section 61-8-202, MCA. 

In other words, at the time that William was decided, the 

statute which authorized the Highway Commission to adopt a manual 

for uniform signing of highways made no specific reference to the 

MUTCD. At all times relevant to this action, the statute in 

question mandated that the Department of Transportation adopt a 

manual and that it conform as closely as possible to the MUTCD. 

The correct analysis under our case law regarding when the 

violation of national standards, such as the MUTCD, constitutes 

negligence per se is found in Herbst v. Miller (Mont. 1992), 830 P.2d 

1268, 49 St. Rep. 40. In that case, we gave the following 
explanation of the legal effect of national standards which have 

been adopted in Montana: 

We have held that violation of an administrative rule 

adopted under 5 50-60-203, MCA, as in the instant case, 

is not negligence per se but instead is evidence of 

negligence. Cash v. Oh Elevator Company (1984 ) , 210 Mont . 319, 684 P.2d 1041. In Oh, we recognize that 

5 50-60-203, MCA, mandates the Department of Commerce to 

adopt rules but that the legislature did not act further 

to incorporate by reference the rules adopted by the 

agency. In contrast, we held that violation of a 

national standard adopted by specific statutory reference 

is negligence as a matter of law. Martel v. Montana Power 

Company (1988), 231 Mont. 96, 752 P.2d 140. . . . 

. . . The Town of Belgrade adopted a resolution 

whereby the UBC [Uniform Building Code] is incorporated 

by reference. . . . 

. . . Miller's failure to install a handrail leading 

to the basement apartment is a failure to maintain her 

building in adherence with the ordinance and is therefore 

a violation of the ordinance. It is long settled that 

violation of a city ordinance constitutes negligence per 

se. Marshv.Ayers (1927), 80 Mont. 401, 260 P. 702. 

Herbst, 830 P.2d at 1271. 

The Town of Belgrade adopted the Uniform Building Code by 

reference, and therefore, we found that violation of the building 

code was negligence per se. 

The Montana Legislature mandated that the Department of 

Transportation "adopt a manual for a uniform system of 

traffic-control devices," and that so far as possible it conform to 

the "manual on uniform traffic control devices, as amended." 

Section 61-8-202, MCA. From that point on, the MUTCD was clearly 

"a national standard adopted by specific statutory reference." I 

fail to see any practical difference between the circumstances in 
this case, and the circumstances in Herbst or Martel. Furthermore, I 

fail to see any justification from a public policy point of view 

for giving greater legal significance to the Uniform Building Code 

or the National Electric Safety Code, than the Manual on Uniform 

Traffic Control Devices. As a practical matter, they are all part 

of the law of the State of Montana. They were all enacted to 

protect the public and make Montana a safer place to live, and the 

violation of one creates just as much potential for danger as the 

violation of another. The majority opinion constructs intellectual 

distinctions which make no practical difference, and which are 

neither supported by our prior case law nor common sense. It does 

nothing to further the historical purposes of the law of 

negligence. 

Finally, I dissent from the majority opinion because I 

disagree with this Court's conclusion, which had its genesis in 

Stepanekv. Kober Construction (lgsl), 191 Mont. 430, 625 p.2d 51, that 

there is any rational basis for treating the violation of a statute 

any differently than the violation of a lawfully enacted safety 

regulation. Both the statute and the safety regulation have the 

same purpose. Both are enacted for the public's protection, and 

presuming that proper procedures were followed, both are equally 

enforceable in the event of their violation. When it comes to 

determining whether one or the other can be used as a threshold 

standard by which to evaluate the exercise of reasonable care, what 

reason is there to treat one differently than the other? 
Safety regulations are adopted by the various state agencies, 

or adopted pursuant to notice to interested parties. They are 

enacted to further a legislative purpose for which that agency was 

established, and they presumably establish standards of reasonable 

conduct in the industry or area of activity with which they are 

concerned. Therefore, when it comes to a conclusion about whether 

a violation of the law amounts to negligence per se, I would draw 

no distinction between violations of statutory law and violations 

of regulatory law. 

For these reasons, I conclude that the jury was instructed 

improperly and dissent from that part of the majority opinion which 

concludes otherwise. 

~ustice William E. Hunt, Sr., concurs in the foregoing 

concurrence and dissent of Justice Trieweiler. 

/ 

Justice 
December 16, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Kurt M. Jackson 

Hoyt & Blewett 

P.O. Box 2807 

Great Falls, MT 59403 

Michael J. Milodragovich and Margaret L. Sanner 

Milodragovich, Dale & Dye 

P.O. Box 4947 

Missoula, MT 59806-4947 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE-OF MONTANA