                                         No.   90-370

                IN THE SUPREME COURT OF THE STATE OF MONTANA




DOUGLAS C. BROOKINGS,
          Appellant and Plaintiff,
     -v-
DICK THOMPSON,
          Respondent and Defendant.
     ...................................
DONALD J. TIGART,
          Respondent and Plaintiff,
     -v-
RICHARD J. THOMPSON,
          Respondent and Defendant.
     ...................................
RICHARD J. THOMPSON,
          Respondent and Third-Party Plaintiff,
     -v-

DONALD J. TIGART,
          Respondent and Third-Party Defendant.



APPEAL FROM:              District Court of the Ninth Judicial District,
                          In and for the County of Pondera,
                          The Honorable R.D. McPhillips, Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                          Philip J. O'Connell, Helena, Montana
               For Respondent:                                    1
                                                                  ,



                          Patricia 0 ' ~ r i e nCotter, Great Falls, Montana; Lon
                          T. Holden, Great Falls, Montana


                                           Submitted on Briefs:       March 14, 1991
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Justice Fred J. Weber delivered the Opinion of the Court.

     This is the third appeal of a personal injury case arising out
of a motor vehicle accident in Conrad, Montana, on January 4, 1985.
The first trial resulted in a jury verdict on March 21, 1988,
finding neither Thompson nor Tigart to be negligent.      The District
Court granted a new trial for irregularites in the proceedings.
This Court upheld the District Court's order granting Brookings and
Tigart a new trial.    The case was then appealed a second time on
the issue of attorney's fees.        This Court upheld the District
Court's award of attorney's fees.
     On May 11, 1990, the jury returned its verdict on retrial,
again   finding neither Thompson nor Tigart to           be   negligent.
Brookings moved for a new trial.           The District Court denied
Brookings' motion.    Brookings appeals.    We affirm.
     The determinative issue is:
     Did the District Court err in denying Brookings' motion for
a new trial on the basis that the defendants, Tigart and Thompson,
are negligent as a matter of law?
     Plaintiff, Brookings, was a passenger in a pickup driven by
Tigart.   Tigart was rounding a corner in Conrad that was covered
with black ice.   Thompson, also driving a pickup, pulled out onto
the highway in front of Tigart.        Tigartls pickup went out of
control and ended up in the ditch on its top.
     There was substantial conflict in the evidence as to the cause
of the accident. Tigart asserts that Thompson pulled out onto the
highway without stopping or looking. Tigart was forced to hit his
                                 2
                                 -
brakes to avoid a collision.        He began to slide towards a large
sign. He overcorrected and the pickup ended up in the ditch on its
top.        Both   Tigart's   and   Brookings'   testimony   contained
inconsistencies as to where and at what distance Thompson's vehicle
entered the highway. There was conflicting testimony as to whether
Thompson stopped before entering the highway.        Tigart testified
that the Thompson vehicle had difficulty obtaining traction when
it pulled out onto the highway.        Officer Harris testified that
there was no evidence of slipping or spinning tires at the
intersection where Thompson pulled out.
       Witnesses Randy Olson and Tim Miller testified at trial that
at least 100 yards or the length of a city block separated the
Thompson and Tigart vehicles when the Tigart vehicle began skidding
out of control on the highway.       Miller did not see how Thompson
could have caused the Tigart vehicle to lose control because of the
distance between the two vehicles.       The estimates of Miller and
Olson as to the distance between the Thompson and Tigart vehicles
were confirmed by the measurements taken later by a paralegal.
       Tigart asserts that Thompson's failure to stop and look before
pulling onto the highway, forced Tigart to take evasive action,
causing the accident.         Brookings makes the same claim as to
Thompson.     Brookings also claims that Tigart was negligent for
driving at a speed greater than was reasonable and proper under
the icy conditions. The jury found neither Tigart nor Thompson to
be negligent.
       Brookings claims that he is entitled to a new trial under the
provisions of Rule 59 (a), M.R.Civ.P., and under 5 25-11-102 (6),
MCA.    Rule 59 (a) states in pertinent part:
       Grounds. A new trial may be granted to all or any of the
       parties and on all or part of the issues for any of the
       reasons provided by the statutes of the state of Montana.
       . . .
Section 25-11-102(6), MCA, states:
       Grounds f o r new t r i a l . 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:
       ...
       (6) insufficiency of the evidence to justify the verdict
       or other decision or that it is against law;
       The decision to grant a new trial is within the sound
discretion of the trial judge and will not be overturned absent a
showing of manifest abuse of discretion.        Stanhope v. Lawrence
(1990), 241 Mont. 468, 471, 787 P.2d 1226, 1228.        This Court's
function is to determine if there is substantial credible evidence
in the record to support the jury's verdict.    Walls v. Rue (1988),
233 Mont. 236, 238, 759 P.2d 169, 171.     We must view the evidence
in a light most favorable to the prevailing party below, and where
the record presents conflicting evidence, resolved by the jury,
this Court is precluded from disturbing the verdict.       Id.     This
rule is particularly applicable when the District Court has passed
on the sufficiency of the evidence on motion for new trial and has
upheld its sufficiency.     Id.   When testimony at trial includes
different accounts of an event, it would be an abuse of discretion
for the trial court to grant a new trial solely because it chooses
to believe testimony different than that believed by the jury. To
do so would create a bench supremacy and sap the vitality of jury

verdicts.    Nelson v. Hartman (1982), 199 Mont. 295, 300, 648 P.2d
1176, 1178-179.
     The basis of Brookings' argument appears to be that this kind
of accident cannot happen absent negligence.      Brookings was hurt
and somebody had to be at fault.     Brookings produces no evidence
to support this contention.   Brookings cites Aemisegger v. Herman
(1985), 215 Mont. 347, 697 P.2d 925, for the proposition that a
defendant is negligent as a matter of law when he violates basic
traffic rules, such as yielding the right-of-way or failing to take
the conditions of the highway into consideration. Aemiseqqer does
not stand for the proposition, as Brookings suggests, that because
there is an accident, someone must be found negligent.          The
evidence in Aemiseqqer was clear that the defendant was at fault.
In this case the evidence is conflicting and not at all clear that
anyone was at fault.
     We hold that the District Court did not err when it denied
Brookings' motion for a new trial on the basis that the defendants
were negligent as a matter of law.    Affirmed.




We Concur:    /
Justice Terry N. Trieweiler dissenting:
     I dissent from the opinion of the majority.
     I agree that as a general rule the mere occurrence of an
accident does not require a finding that negligence caused the
accident.   However, that general rule is not logically applicable
to the facts in this case.
     The plaintiff, Douglas Brookings, was an innocent passenger
in a motor vehicle which went out of control, left the highway, and
rolled over.
     Donald Tigart, the driver of that motor vehicle, blamed his
loss of control on Richard Thompson's unexpected entrance onto the
highway from a side street or driveway, and Thompson's failure to
yield the right-of-way to Tigart.
     Thompson's defense was that Tigart was simply operating his
vehicle too fast for the existing conditions, and therefore, was
unable to control his vehicle when Thompson entered the highway,
even though he should have been able to do so, based on their
respective locations at the time.
     No one alleges that the plaintiff contributed in any way to
the cause of the accident.   Neither did any witness or any party
blame any person other than Tigart or Thompson for what occurred.
     This accident could only have occurred because of one of the
two previous explanations.   Either Thompson failed to yield the
right-of-way to Tigart, or Tigart was going too fast for the
existing icy conditions.
     If Thompson failed to yield the right-of-way to Tigart, then
he violated   §   61-8-341, MCA, which provides in relevant part that:
     The driver of a vehicle shall stop .     ..
                                               at the entrance
     to a through highway and shall yield the right-of-way to
     other vehicles     .
                      . . which are approaching so closely on
     said through highway as to constitute an immediate hazard
     . . . .
     If the accident occurred because Tigart was operating his
vehicle on an icy road at a speed which left him unable to control
the vehicle when necessary, then he violated 5 61-8-303(1), MCA,
which provides in relevant part that:
     A person operating or driving a vehicle of any character
     on a public highway of this state shall drive it in a
     careful and prudent manner, and at a reasonable rate of
     speed no greater than is reasonable and proper under the
     conditions existing at the point of operation, taking
     into account the . . . condition of surface, and freedom
     of obstruction to view ahead . . . .
     The accident in which the plaintiff was injured could not
logically have occurred unless one of the above statutes was
violated.     Violation of either statute was negligence per se.

Aemisegger v. Herman (1985), 215 Mont. 347, 697 P.2d 925,
     The evidence may have been conflicting. However, that did not
absolve the jury of its obligation to resolve the evidence by
deciding that one or both of the defendants was negligent.

     I would remand this case to the District Court for retrial,
based on instructions to the jury that its sole responsibility is
to decide which of the defendants was at fault for the accident in
