No. 86-522
INTHE SUPREME COURT OF THE STATE OF MONTANA

JEAN PFAU, Plaintiff and Appellant,-VSRICHLAND COUNTY, a political subdivision of the State of Montana, Defendant and Respondent.

APPEAL FROM: DistrictCourt of the Seventh JudicialDistrict, In and forthe County of Richland, The Honorable H. R. Obert, Judge presiding. COUNSEL OF RECORD: For Appellant: Robert L. Johnson, Lewistown, Montana For Respondent: Gene R. Jarussi; Keefer, Roybal, Hanson, Stacey and Jarrussi, Billings, Montana

Submitted on Briefs: April 30, 1987 Decided: July 91 1987

~i led: 

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# -1987Mr. Justice Fred J. Weber delivered the Opinion of the Court.

Plaintiff Jean Pfau brought this action in the District Court of the Seventh Judicial District, Richland County, to recover damages for injuries she sustained when she fell at the Richland County Fairgrounds. The jury found the defendant Richland County not negligent. Mrs. Pfau appealed from the judgment entered on the verdict and the District Court's denialofher motion for anew trial. We affirm. The issue iswhether theDistrict Court erred in failing to grant Mrs. Pfau a new trial on the ground that the evidencewas insufficient to justify the jury verdict. On August 4, 1982, Jean Pfau, her husband, and her children were at the Richland County Fairgrounds settingup a booth for the fair which was to start the next day. About 8:00 or 9:00 p.m., Mrs. Pfau drove two of her childrenhome. Around 10:30 or 11:OO p.m., shedroveback to the fairgrounds topick up her husband and third child. As Mrs. Pfaupassed underneath thepedestrian archway at the southgate of the fairgrounds she tripped and fell. Mrs. Pfau sued Richland County on the basis that the sidewalkwas unsafe. After a jury trial, the 12 person jury came back with averdict thatRichland Countywas notnegligent. After her motion for a new trial was denied, Mrs. Pfau appealed. Did theDistrict Court err in failing to grantMrs. Pfau
a new trial on the ground that the evidencewas insufficient to justify the juryverdict? In determining the sufficiency of the evidence, our standard is one of substantial evidence. As this Court recently stated in Clark v. Norris (Mont. 1987), 734 P.2d 182, 185, 44 St. Rep. 444,445:The standard of review is substantial evidence. If substantial evidence supports the case of the prevailing party the verdict will stand. The evidencewillbe viewed in a lightmost favorable to the party thatprevailed at trial and, if the evidence conflicts, the credibility and weight given to the evidence is theprovince of the jury and not this Court. (Citeomitted.) This Court will especially not disturb a judgment on appeal where substantial evidence supports the judgment and the DistrictCourt hasupheld the sufficiency of the evidence
on a motion for a new trial. Keil v. Glacier Park, Inc.

(1980), 199 Mont. 455, 461, 614 P.2d 502, 505. Simply put, the question before this Court is whether there is substantial evidence in the record uponwhich the jury could return
a defenseverdict. After a careful review of the transcript, we conclude that there is substantial evidence in the record which supports the finding of the jury that Richland County was not negligent in the falland injuries sufferedby Mrs. Pfau. At trial, Mrs. Pfau's attorney called Daniel Pfau, Jean Pfau's husband,Doris Goebel,the secretary-manager for theRichland County Fair, and Jean Pfau herself. The attorney for Richland County cross-examined DorisGoebel and Jean Pfau and called George Urnback, the maintenance man for the Richland County Fairgrounds,as awitness. All fourwitnesses testified as to the conditionof the sidewalk where Mrs. Pfau fell. Doris Goebel testified that the sidewalk looked like a typical sidewalk in a county fairground, that some of the sidewalk was older and some of it was newer. She further testified that parts of the sidewalk were cracked and somewhat uneven, but generally the sidewalk was in normal condition and did not represent a hazard. George Umback also testified that the sidewalk did not look hazardous to him, was well-lighted, and wasessentially in the same shapeas ithad been for the previous 12 years when he had worked at the fairgrounds. There is some contradiction in the testimony of the various witnesses with regard to the condition of the sidewalk. However,we are required to view the evidence in a lightmost favorable to the defendant. In addition, the credibility and weight to be given to the evidence is the province of the jury with whichwe will not interfere. Viewing the evidence in a light favorable to the defendant, we conclude there is substantial evidence to support the jury's determination that the defendantwas not negligent. We affirm the District Court.

We Concur: //

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