No. 14230 

IN THE SUPRE3E COW OF THE STATE OF MXII'ANA 

1979 

ALBERT J. HELMKE, JR., 

Plaintiff and Appellant, 

-VSGIIJ3Em B. GOFF, 

Defendant and Respondent. 

Appeal £ram: District Court of the Nineteenth Judicial District, 

Honorable Robert M. Holter, Judge presiding. 

Counsel of Record: 

For Appellant: 

Terry N. Trieiler argued, Whitefish, Mntana 

For Respondent: 

Murphy, Fbbinson, Heckathorn and Phillips, Kalispell, Mntana 

I. James Heckathorn axgued, Kalispell, lvbntana 

Submitted: March 23, 1979 

Decided: JUN 18 1979 

Filed: JUN 18 1979 
Mr. Justice John C. Sheehy delivered the opinion of the 

Court. 

This is an appeal from a judgment based on a jury 

verdict for the defendant (Goff) in the District Court of 

the Nineteenth Judicial District, Lincoln County. 

Plaintiff (Helmke) filed his action against Goff alleging 

that on August 25, 1975 on Montana secondary highway no. 

202, approximately 4.4 miles from Troy, Montana, Goff negligently 

drove his 1966 Volkswagen sedan in such a manner that it 

went out of control, off the highway, and rolled over several 

times. Helmke, a passenger in the vehicle at the time of 

the accident, was injured. 

In his answer, Goff admitted the happening of the 

accident, but denied that any negligent act on his part caused 

the plaintiff's injuries. Beyond the general denial of 

negligence, no affirmative defenses were interposed by Goff. 

At the close of evidence in the trial, both parties moved 

for directed verdicts. The motions were denied and the cause 

submitted to the jury. A general verdict was found for Goff. 

Helmke moved for a judgment notwithstanding the verdict, or 

in the alternative, for a new trial. His motions were denied 

and Helmke duly filed his appeal to this Court. 

The suit arises out of a single vehicle accident which 

occurred on a clear sunny August afternoon. The investigating 

highway patrolman found that the automobile crossed the center 

line of the two lane highway onto the unpaved left shoulder, 

skidded 49 feet back into the right lane, then left the roadway 

on the right-hand side, overturned and rolled some 86 feet 

before coming to rest in a ditch on the right-hand side of 

the road. There were no defects or obstructions in the roadway 

and the pavement was dry. The driver testified that his 

visibility was unhampered and that his car had no mechanical 

-2- 
defects. He testified he was not tired, had no physical 

ailments or infirmities to impede his driving, and he 

was not intoxicated. The evidence has shown, however, that 

he and plaintiff had consumed a six-pack of beer in the 

morning and later in the day, just before the accident, had 

been passing a wine bottle back and forth and that the wine 

was probably half consumed at the.time of the accident. He 

agreed that Helmke had not contributed to the happening of 

the accident. Neither Helmke nor Goff knew how the accident 

happened and testified to that effect at the trial. 

There was some contention during the trial that there 

may have been a sudden loss of air in one of the tires of 

the vehicle, but the patrolman testified that such an incident 

would have been the result of the accident itself. 

In its charge to the jury, the trial court instructed 

both on ordinary negligence and -- res ipsa loquitur. With 

respect to ordinary negligence, it told the jury that a 

violation of law had to be the proximate cause of the 

plaintiff's injuries; that a violation of an applicable 

statute was negligence as a matter of law; and instructed 

on the "basic rule of vehicle operation," section 32-2144(a), 

R.C.M. 1947, now section 61-8-303(1) MCA, and upon the 

necessity of driving on the right half of the road, section 

32-2151, R.C.M. 1947, now section 61-8-321 MCA. 

The District Court did not take the MJIG instruction 

on res -- ipsa loquitur, but instructed as follows: 

"If you find, (1) that injury to the Plaintiff 

was proximately caused by the fact that the 

automobile which Defendant was driving left 

the road and rolled over; (2) that at the time 

of said accident the automobile in which the 

Plaintiff was injured was under the Defendant's 

exclusive control or management, so that the 

Defendant had superior means for determining 

the cause of the accident; and (3) that in the 
normal course of events the accident and 

ensuing injury would not have occurred without 

the negligence of the person having control and 

management of the automobile, then you may 

find that the accident and ensuing injury 

were caused by the negligence of the Defendant. 

"However, you shall not find that a proximate 

cause of the occurrence was some negligent 

conduct on the part of the defendant unless 

you believe, after weighing all the evidence 

in the case and drawing such inferences therefrom 

as you believe are warranted, that it is more 

probable than not that the occurrence was caused 

by some negligent conduct on the part of the 

Defendant. " 

The trial court also gave the "mere happening" instruction 

as follows: 

"The mere fact that an accident happened, 

considered alone, does not give rise to 

an inference that it was caused by negligence 

or that any party to this action was negligent." 

We restate the issues on appeal as follows: 

1. Assuming a res -- ipsa case, is the court or jury 

compelled to find for the plaintiff where the defendant 

does not attempt to explain the accident or to show his 

lack of negligence? 

2. What is the effect of the "mere happening" instruction 

in a res -- ipsa case? 

3. Is the verdict of the defendant here supported by 

the evidence? 

Under the first issue, Helmke contends that the trial 

court should have granted his motion for a directed verdict, 

or for judgment notwithstanding the verdict. Goff, on the 

other hand, though admitting that this is a -- res ipsa case, 

nevertheless states that the circumstances shown in the 

evidence, that it happened quite fast, that there were two 

flat tires on the automobile after the accident, that Helmke 

could point to no negligent act in the driving of the 

automobile, and a few other circumstances, meant that the 

jury was properly allowed to decide the issue. 
The procedural effect of the -- res ipsa case, that 

is whether the burden of proof upon the establishment of 

such a case shifts to the defendant, has been discussed in 

some Montana cases. In Whitney v. Northwest Greyhound 

Lines (1952), 125 Mont. 528, 242 P.2d 257, 258, this Court 

examined the problem but declined to decide it: 

"Error is predicated upon instructions given 

over plaintiff's objection and in refusing 

some instructions offered by plaintiff. 

The principal legal question presented is 

whether the doctrine of res ipsa loquitur 

applies under facts and dirc~ances presented - 

by the record, and if so, was the jury properly 

instructed on the subject. Interwoven with 

this general subject is the usual difference of 

opinion between counsel as to whether under that 

doctrine there is a shifting of the burden of 

proof. On that point the courts are in disagreement. 

Even this court has gone both ways on the question." 

Decisions vary from state to state as to whether the 

burden of proof shifts to the defendant in a -- res ipsa case. 

Authorities attempt to explain the disparity in these 

decisions by determining whether the jurisdiction follows 

the "permissible inference" theory or the "rebuttable preLaw of Torts S19.11 

sumption" theory. See 2 Harper and James,,/pp. 1100-1102. 

It is safe to say that the difference between an inference 

and a presumption escapes all but the most nimble legal minds. 

Statutory definitions do not help much. Section 93-1301-2, 

R.C.M. 1947, now section 26-1-501 MCA defines an "inference" 

as a "deduction . . . from the facts proved, without an 

express direction of the law to that effect." On the other 

hand, section 93-1301-3, R.C.M. 1947 (now repealed), defined 

a presumption as a "deduction which the law expressly directs 

to be made from particular facts". Both inferences and presumptions are deductions made from facts; both are forms of 

indirect evidence. Section 26-1-102(4) (b) MCA, formerly 

section 93-1301-1, R.C.M. 1947. The difference seems to be 

that a presumption is founded upon an express direction of 

''the law". 
It is not necessary for us, however, to attempt to 

classify this jurisdiction as one following the "permissible 

inferenceii theory, or the "rebuttable presumption" theory. 

It is our opinion that a -- res ipsa case does not put the 

defendant in a position of having to prove an affirmative 

defense to escape liability. The language in Sweeney v. 

Erving (1913), 228 U.S. 233, 240, 33 S.Ct. 416, 418, expresses 

our position: 

". . . -- res ipsa loquitur means that the facts 

of the occurrence warrant the inference of 

negligence, not that they compel such an 

inference; that they furnish such circumstantial 

evidence of negligence where direct evidence 

of it may be lacking, but it is evidence to be 

weighed, not necessarily to be accepted as 

sufficient; that they call for explanation or 

rebuttal, not necessarily that they require it; 

that they make a case to be decided by the jury, 

not that they forestall the verdict. -- Res ipsa 

lo uitur, where it applies, does not convert the a+%- e en ant's general issue into an affirmative 

defense. When all the evidence is in, the question 

for the jury is, whether the preponderance is with 

the plaintiff. " 

Obviously, the question of whether the court, at the 

close of all the evidence in the -- res ipsa case, should grant 

a motion for directed verdict, or later a judgment notwithstanding the verdict, will depend upon the facts proved in 

each individual case. We can conceive of situations where 

the inference of negligence in a -- res ipsa case would be so 

strong that persons of reasonable minds could not reach 

differing conclusions as to the negligence of the defendant. 

When that occurs, the course to be followed by the District 

Court should be no different than in any other case when 

faced by a motion for a directed verdict. 

In this case, we do not find that the District Court 

abused its discretion in refusing to grant a directed verdict 

or a judgment n. o. v. 
The inferences of fact raised by plaintiff's case 

were to be determined by a jury, which is the trier of all 

fact issues where a jury trial is demanded. Rule 39(a), 

The second issue, the giving of the "mere happening" 

instruction in a -- res ipsa case, is of more grave consequence, 

and in our view requires a reversal of this case. 

The statement that the fact of an accident or collision 

alone is no evidence of negligence has found its way into a 

number of opinions from this Court. See for example, Baatz 

v. Noble (1937), 105 Mont. 59, 69 P.2d 579; Cowden et al. v. 

Crippen (1936), 101 Mont. 187, 53 P.2d 98; Autio v. Miller 

(1932), 92 Mont. 150, 11 P.2d 1039. However, we pointed out 

in Hunsaker v. Bozeman Deaconess ~oundation (1978), 

Mont . I 588 P.2d 493, 35 St.Rep. 1647, that while 

occasionally, a statement in an opinion may also be a good 

jury instruction, opinions are not designed to be jury 

instructions. 

Also in Hunsaker, with respect to a "mere happening" 

instruction in a -- res ipsa case, this Court said: 

"In Graham v. Rolandson (1967), 150 Mont. 270, 

435 P.2d 263, an ordinary negligence action, 

we condemned an 'unavoidable accident' instruction. 

There we concluded that it injected a straw issue 

into the case and is confusing to the jury. This 

is somewhat akin to 'the mere fact of an injury' 

instruction as was given in this case. In 

Gagosian v. Burdickls Television & Appliances 

(1967), 254 Cal.App.2d 316, 62 Cal.Rptr. 70, 

California eliminated 'the fact of an injury' 

instruction from ordinary negligence actions, 

stating: 

"'. . . Since it but elucidates the obvious 

to the jury, and need not be given to meet 

any rule of appellate procedure, we join 

heartily in the recommendation of its authors 

for its "decent burial". The trial judge 

who strikes the "mere happening" instruction 

from his instruction book and completely 

erases it from his memory will save time in 

instruction and much in retrial after reversal.' 
"We also conclude that in an ordinary 

negligence action that such instruction 

should be given a 'decent burial1 in this 

State. " 588 P. 2d at 506, 507. 

The evil in giving such an instruction in a -- res ipsa 

case is that the jury may consider that they are foreclosed 

from considering the evidence provided by the happening of 

the accident itself. Jensen v. Minard (1955), 44 Cal.2d 

325, 282 P.2d 7, 9. Therefore we hold the instructions here 

to be so incompatible as to require reversal. 

In view of our holding on the second issue, it is 

unnecessary to review whether the evidence supported the 

defendant's verdict. 

The cause is reversed and remanded for a new trial. 

We Concur: 

V Justice 

Mr. Chief Justice Frank I. Haswell and Mr. Justice John C. 

Harrison would affirm the judgment of the District Court.