No. 87-345 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

LESLIE G. WHEELER and WILDA J. 

WHEELER, husband and wife, 

Plaintiffs and Appellants, 

CITY OF BOZEMAN, a Municipal 

corporation, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lyman H. Bennett, 111, Bozeman, Montana 

For Respondent : 

Bruce Becker, City Attorney, Bozeman, Montana 

H. William Coder, Great Falls, Montana 

Submitted on Briefs: May 12, 1988 

Decided: June 28, 1988 

Filed* . %,L < 

- -. 
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the 

Court. 

Plaintiffs Leslie G. Wheeler and Wilda I. Wheeler, 

husband and wife, appeal the order of the District Court of 

the Eighteenth Judicial District, Gallatin County, denying 

plaintiffs' motion for a new trial. We affirm. 

The issues raised on appeal are: 

1. Whether the District Court erred by refusing to 

grant plaintiffs' proposed instruction no. 15, instructing 

the jury that a municipality has a duty to keep its sewers in 

repair? 

2. Whether the District Court erred by refusing to 

grant a new trial on the basis that no substantial evidence 

existed to support the verdict? 

Leslie and Wilda Wheeler operate a physical fitness and 

health center out of their residence in Bozeman. Leslie 

Wheeler initiated this business as a result of his interest 

in physical fitness. The business had its beginning in the 

Wheelers' garage, but by 1981 the Wheelers decided to expand 

their existing facilities. 

The first expansion of the facilities occurred during 

the early part of 1982 and the second expansion was completed 

in early 1983, when the Wheelers built a 15 foot addition to 

their residence with an 8 foot basement. This newly built 

basement contained a hot tub which protruded 2 to 24 feet 

below the basement floor. In both instances, the City of 

Bozeman issued building permits to the Wheelers for the 

construction. 

Beginning in 1983, the Wheelers began experiencing water 

flooding into their new basement. The Wheelers experienced 

nine floods between June 19, 1983 and May 31, 1986. In an 

attempt to solve the problems resulting from the floodings, 
the Wheelers installed a sump pump in their basement, two 

drain ditches, and a sump tank. 

The Wheelers informed the City of Bozeman about the 

floodings and the City of Bozeman responded by cleaning out 

the silt and roots from the storm sewer drain located 

directly south of the newly built basement. Nonetheless, the 

floodings continued. The Wheelers brought this action in 

front of a jury in the Eighteenth Judicial District Court, 

Gallatin County, arguing that the City of Rozeman was 

negligent in designing, installing, and maintaining the storm 

sewer system located near the Wheelers' residence. After a 

three day trial, the jury found the City of Bozeman not 

negligent in designing, installing and maintaining the storm 

sewer. The Wheelers' appealed. 

The first issue the Wheelers raise on appeal is whether 

the District Court erred by refusing to grant plaintiffs' 

proposed instruction no. 15? This instruction states that: 

You are instructed that the duty of a municipality 

to keep its sewers in repair involves the exercise 

of a reasonable degree of watchfulness in 

ascertaining their condition from time to time, 

preventing them from becoming dilapidated or 

obstructed. Where the obstruction or dilapidation 

is an ordinary result of the use of the sewer, 

which ought to be anticipated and could be guarded 

against by occasional examination and cleaning, the 

omission to make such examination and keep the 

sewers clear is a neglected duty which renders the 

municipality liable. 

The District Court refused this instruction as well as 

defendant's proposed instructions no. 21 and 24 which states 

as follows: 

Defendant's Proposed Instruction -- No. 21 

The duty of Bozeman to inspect, repair and maintain 

its storm drain system is a duty of ordinary care, 

and it is not required to dig up its storm drain 

system to conduct such inspection and maintenance. 
Defendant's Proposed Instruction -- No. 24 

The City of Bozeman is not liable for stoppages of 

its storm drains which are caused by objects or 

materials thrown into the system by others. 

In refusing plaintiffs ' proposed instruction no. 15 and 

defendant's proposed instructions no. 21 and 24, the District 

Court noted that the case was already being given to the jury 

on the basis of negligence, contributory negligence, and 

nuisance. The instructions given regarding negligence and 

contributory negligence were as follows: 

Instruction No. 10 

Every person is responsible for injury to the 

person or property of another caused by want of 

ordinary care or skill. When used in these 

instructions, negligence means want of such 

ordinary care or skill. Such want of ordinary care 

or skill exists when there is a failure to do that 

which a reasonable and prudent person would 

ordinarily have done under the circumstances of the 

situation, or doing what such person under the 

existing circumstances would not have done. 

Instruction No. 11 

Contributory negligence is negligence on the part 

of a claimant which contributed as a proximate 

cause to his injury. 

Instruction No. 12 

A proximate cause of an injury is that cause which 

in a natural and continuous sequence, unbroken by 

any new and independent cause, produces the injury, 

and without which it would not have occurred. 

Instruction No. 13 

Every person who suffers a detriment from the 

unlawful act or omission of a municipal corporation 

may recover from the municipal corporation a 

compensation therefore in money which is called 

damages. In this case, detriment is the loss or 

harm suffered. The measure of damages is the 
amount which will compensate for all the detriment 

proximately caused thereby herein defined, whether 

it could have been anticipated or not. 

Refusing an instruction which has been adequately 

covered by other instructions is not reversible error. Burns 

v. U & R Express (Mont. 1981), 624 P.2d 487, 489, 38 St.Rep. 

302, 304-05; Holland v. Konda (1963), 142 Mont. 536, 545, 385 

P.2d 272, 277. In the present case, the instructions as a 

whole adequately informed the jury on the issues of 

negligence, including the duty of the City of Bozeman, 

proximate cause and damages. Therefore, the District Court's 

refusal to give plaintiffs' proposed instruction no. 15 is 

not reversible error. 

The second issue the Wheelers' raise on appeal is 

whether the District Court erred by refusing to grant a new 

trial on the basis that no substantial evidence existed to 

support the verdict? The law is well settled in this area. 

When determining whether substantial evidence exists to 

support the verdict, this Court must review the evidence in a 

light most favorable to the prevailing party. Kukuchka v. 

Ziemet (Mont. 1985), 710 P.2d 1361, 1363, 42 St.Rep. 1916, 

1917; Anderson v. Jacqueth (1983), 205 Mont. 493, 495, 668 

P.2d 1063, 1064; Gunnels v. Hoyt (Mont. 1981), 633 P.2d 1187, 

1191, 38 St.Rep. 1492, 1495; Groundwater v. Wright (19791, 

180 Mont. 27, 29, 588 P.2d 1003, 1004. The evidence may be 

inherently weak and still be considered substantial. Local 

Union No. 400 of Intern. Union v. Bosh (Mont. 1986), 715 P.2d 

36, 42, 43 St.Rep. 388, 394; Anderson, 205 Mont. at 495, 668 

P.2d at 1064; Gunnels, 633 P.2d at 1191, 38 St.Rep. at 1495; 

In the Matter of the Estate of Holm (1979), 179 Mont. 375, 

379, 588 P.2d 531, 534. Further, when conflicting evidence 

exist, the credibility and weight given to the conflicting 

evidence is within the jury's province. Mountain West Farm 
Mutual Insurance Co. v. Girton (Mont. 1985), 697 P.2d 1362, 

1363, 42 St.Rep. 500, 501; Kukuchka, 710 P.2d at 1363, 42 

St.Rep. at 1917; Gee v. Egbert (Mont. 1984), 679 ~.2d 1194, 

1203, 41 St.Rep. 515, 525. 

The Wheelers contend that substantial evidence does not 

exist to support the jury's verdict, arguing that their 

expert witness testified 'conclusively' that the water 

entering the Wheelers' basement came from the City of 

Bozeman's storm sewer system and that the City of Bozeman 

could not produce any evidence indicating 'conclusively' the 

source of the water. We disagree. 

The jury had an opportunity to hear testimony concerning 

the source of the water from two expert witnesses. The 

Wheelers' expert witness testified that the source of the 

water resulted from the City of Bozeman's negligence. On the 

other hand, the City of Bozeman offered contrary evidence 

through another expert witness stating that the water in the 

Wheelers' basement may have resulted from the naturally high 

ground water in the area in combination with the Wheelers' 

basement and hot tub protruding more than 10 feet below the 

surface. The jury, after hearing the conflicting evidence, 

determined that the water in the Wheelers' basement was not a 

result of the City of Bozeman's negligence. The credibility 

and weight given to the testimony of each of these expert 

witnesses is within the province of the jury, not this Court. 

We will not second guess the jury when, as in this case, 

substantial evidence exist to support the jury's verdict. 

Affirmed.. 

A' 

We Concur: 

- Justice