                                            No. 8 3 - 1 0 1

                IN THE SUPREME COIJRT OF THE STATE OF MONTANA

                                                  19 8 3




CHARLES SHANNON,

                    P l a i n t i f f and R e s p o n d e n t ,



DONALD E . HULETT, EAST VALLEY TRUCKING and STEVE LUKSHA,

                    D e f e n d a n t s and A p p e l l a n t s




Appeal from:     D i s t r i c t Court o f t h e F i f t h J u d i c i a l D i s t r i c t
                 I n and F o r t h e County o f J e f f e r s o n
                 H o n o r a b l e Frank D&,      Judge p r e s i d i n g .
                                         BL+==?rJ      t


Counsel o f R e c o r d :

      For A p p e l l a n t :

            C o r e t t e , S m i t h , Polhman C A l l e n , B u t t e , Montana
                                                 ,
                 R o b e r t M. C a r l s o n and R , D . C o r e t t e , Argued


      For Respondent :

            J o h n L . P e t e r s o n , B u t t e , Montana
                  J o h n L . P e t e r s o n , Argued




                                            Submitted:            June 6 , 1 9 8 3

                                               Decided:           August 1 6 , 1983
M r . C h i e f J u s t i c e P r a n k 1. H a s w e l l d e l i v e r e d t h e 3 p i n i o n of
t h e Court.

         Donald H u l e t t , d / b / a      E a s t V a l l e y T r u c k i n g , and S t e v e n

Luksha      appeal       the    Jefferson         County       District        Court        order

g r a n t i n g C h a r l e s Shannon a new t r i a l .        W e reverse.

         On S e p t e m b e r   22,    1979,      Shannon was d r i v i n g h i s 1 9 6 6

C h e v r o l e t n o r t n b o u n d on 1-15 a t a b o u t 35 m.p.h.             L u k s h a was

d r i v i n g a 1972 Kenworth t r u c k w i t h a p u p - t r a i l e r ,           owned by

h i s employer H u l e t t ,      s o u t h b o u n d o n 1-15 a p p r o x i m a t e l y 4 0 t o

45 n.p.h.         Both d r i v e r s were on a t w o - l a n e           p o r t i o n of    1-15

just    south      of    Boulder,       which      i n many       places      was     i n poor

condition.

         The r e c o r d i n d i c a t e s t h a t b e c a u s e o f   t h e rough shoul-

d e r , Luksha was v e r y c l o s e t o t h e c e n t e r l i n e .        J u s t a f t e r he

e n t e r e d t h e two-lane       highway,       f i v e oncoming c a r s p a s s e d by

him,    and h e c h e c k e d t h e i r p r o g r e s s i n h i s r e a r v i e w m i r r o r .

When h e      looked       forward he         saw Shannon c u t t i n g          through       an

approaching         curve one o r          two f e e t     in his       lane of       travel.

Luksha t e s t i f i e d    that      l t appeared        a head-on         c o l l i s i o n was

~ m m i n e n t , s o he swerved h i s t r u c k t o t h e r i g h t .          T h i s sudden

a c t i o n and t h e rough r o a d c a u s e d t h e t r u c k t o l e a n b a d l y and

Luksha a l m o s t l o s t c o n t r o l .      I t a l s o caused t h e pup-trailer

t o swing o u t i n t o S h a n n o n ' s l a n e of        travel.         The l e f t s i d e

of   t h e t r a i l e r c o l l i d e d w i t h t h e f r o n t and t o p of S h a n n o n ' s

vehicle.        Shannon s u f f e r e d s e r i o u s i n j u r y .

         Shannon b r o u g h t a n a c t i o n i n J e f f e r s o n C o u n t y D i s t r i c t

Court     a g a i n s t a p p e l l a n t s s e e k i n g damages a r i s i n g     from      the

accident.         By s p e c i a l v e r d i c t t h e j u r y f o u n d a p p e l l a n t s n o t

" g u i l t y of n e g l i g e n c e which was t h e p r o x i m a t e c a u s e o f          the

c l a i m e d damage."

         T h e r e a f t e r , Shannon moved t h e c o u r t t o s e t a s i d e t h e
j u r y v e r d i c t and t o g r a n t a new t r i a l .                    The D i s t r i c t C o u r t

granted         a     new       trial        without          supporting          memorandum.            An

a p p e a l was b r o u g h t t o t h i s C o u r t w h i c h f i l e d i t s o p i n i o n on

January 19,            1983.           This Court dismissed t h e appeal without

p r e j u d i c e and remanded                t h e case t o t h e D i s t r i c t Court f o r

reconsideration                 and       e n t r y of    an order       s t a t i n g t h e grounds

for    granting            a    new       trial     in    compliance           with       Rule   59(f),

M.R.Civ.P.             Shannon v .           Hulett (1983),                       Mont.          ,      656

P.2d     825,        40        St.Rep.        35.        The     remittitur          was     filed       in

District            Court       on    February           1,    1983.         On    that     same       day,

District            Judges        Frank        Blair          (retired)        and    Frank        Davis

complied            with       this       Court's        order    by     filing       memoranda          in

s u p p o r t of      t h e o r d e r g r a n t i n g Shannon's motion                     for     a    new

trial     i n t h e D i s t r i c t C o u r t f o r J e f f e r s o n County.                    Luksha

and    Bulett         appeal          the     order       granting       a    new     trial.           They

r a i s e two i s s u e s f o r o u r c o n s i d e r a t i o n :

          1.        Was t h e D i s t r i c t C o u r t ' s o r d e r and memorandum i n

support         of     order          procedurally             proper        and     indicative          of

a c t u a l consideration given t o its decision?

          2.         Did       the District              Court abuse          i t s d i s c r e t i o n by

granting        a    new t r i a l ?

         We         reverse          on    the      ground       that    the       District        Court

abused         its discretion                in     setting      aside       the     jury    verdict.

The f i r s t i s s u e i s t h u s m o o t , and w e d o n o t a d d r e s s i t .

         Essentially,                 a p p e l l a n t s contend       t h a t a new t r i a l may

n o t be g r a n t e d i f           t h e r e is s u b s t a n t i a l evidence t o s u p p o r t

the    jury         verdict.              Here,      there       are    sufficient          facts        to

s u p p o r t t h e j u r y ' s v e r d i c t t h a t L u k s h a was f r e e f r o m n e g l i -

gence,         and     the       District           Court      abused        its     discretion          in

setting aside the verdict.
          Shannon a r g u e s t h a t t h e r e i s no c o n f l i c t i n g e v i d e n c e

which      can       support        the    jury      determination                that    Luksha          was
f r e e from negligence.                   H e was n e g l i g e n t a s a m a t t e r              of    law

when      the        trailer     crossed            into     Shannon's           lane     of       travel.

Shannon's             inluries            were       proximately                caused         by        such

negligence.

          The s t a n d a r d f o r g r a n t i n g a new t r i a l i s w e l l e s t a b -

lished         in     Montana.             If       there     is    substantial                evidence

supporting            the    verdict,           a   new     trial      may       not     be    granted.

Srenberg v.            Nee1 ( 1 9 8 0 ) ,              Mont    .           ,    6 1 3 P.2d     1 0 0 7 , 37

St.Rep.        1 1 7 0 ; L y n d e s v.    S c o f i e l d ( 1 9 7 9 ) , 180 Mont.             1 7 7 , 589

P.2d    1 0 0 0 ; K i n c h e l o e v. Rygg ( 1 9 6 8 ) , 1 5 2 Mont.                  1 8 7 , 4 4 8 P.2d

1 4 0 ; H i n t o n v . P e t e r s o n ( 1 9 4 6 ) , 1 1 8 Mont.              5 7 4 , 1 6 9 P.2d        333.

Neither         may     a    District           Court       grant      a       new     trial        simply

because         it    believed        one       l i n e of     testimony             different           frorn

t h a t which t h e j u r y b e l i e v e d .             Yerkich v. O p s t r a ( 1 9 7 8 ) , 176

Mont.     272,        577 P.2d       8 5 7 ; I n r e E s t a t e o f Hardy               (1958), 133

Mont.     5 3 6 , 326 P.2d          692.

          When a D i s t r i c t C o u r t d e n i e s a m o t i o n f o r a new t r i a l ,

w a r e less i n c l i n e d t o d i s t u r b t h a t o r d e r because t h e lower
 e

court has            indicated       faith          in the      jury       verdict.            However,

when a D i s t r i c t C o u r t i s p r e s e n t e d w i t h e v i d e n c e i n f a v o r o f

tne verdict            b u t p r o c e e d s t o g r a n t a new                trial,        it    is o u r

duty t o test the evidence a g a i n s t t h e v e r d i c t .                            Campeau v .

L e w i s ( 1 9 6 5 ) , 144 Mont.          5 4 3 , 5 4 9 , 398 P.2d             9 6 0 , 963.

          We     find       there    is s u f f i c i e n t evidence                 t o support the

jury's      verdict.           The e v i d e n c e         is undisputed               t h a t Shannon,

w h i l e d r i v i n g n o r t h b o u n d on 1 - 1 5 ,      c u t through a curve i n t h e

opposing         lane.         Luksha,          approaching         Shannon,            responded          by

s w e r v i n g t o t h e r i g h t t o a v o i d a head-on                    collision.            There
was no e v i d e n c e i n d i c a t i n g t h a t L u k s h a was d r i v i n g u n s a f e l y

prior     t o o b s e r v i n g Shannon o r t h a t h e was n e g l i g e n t i n a n y

o t h e r way.

         By s p e c i a l v e r d i c t t h e j u r y f o u n d t h a t n e i t h e r Luksha

n o r h i s e m p l o y e r w e r e g u i l t y of a n y n e g l i g e n c e w h i c h p r o x i -

m a t e l y c a u s e d t h e c l a i m e d damage.

          C o u r t ' s I n s t r u c t i o n Nos.   3 and 4 s t a t e :

                   "Every p e r s o n i s r e s p o n s i b l e f o r i n j u r y
                   t o t h e person o r p r o p e r t y of a n o t h e r ,
                   c a u s e d by w a n t o i o r d i n a r y c a r e o r s k i l l .

                   "When u s e d i n t h e s e i n s t r u c t i o n s , n e g l i -
                   g e n c e means w a n t o f s u c h o r d i n a r y c a r e o r
                   skill.            Such w a n t o f o r d i n a r y c a r e o r
                   s k i l l e x i s t s when t h e r e i s a f a i l u r e t o
                   d o t h a t which a r e a s o n a b l e and p r u d e n t
                   p e r s o n would o r d i n a r i l y h a v e d o n e u n d e r
                   t h e c i r c u m s t a n c e s of t h e s i t u a t i o n , o r
                   d o i n g what s u c h p e r s o n under t h e e x i s t i n g
                   c i r c u m s t a n c e s would n o t h a v e d o n e . "    In-
                   s t r u c t i o n No. 3 .

                   "You a r e i n s t r u c t e d t h a t a v i o l a t i o n o f
                   law i s o f no c o n s e q u e n c e u n l e s s i t was a
                   proximate c a u s e of ( o r c o n t r i b u t e d a s a
                   p r o x i m a t e c a u s e t o ) a n i n j u r y found by
                   you t o h a v e b e e n s u f f e r e d by t h e P l a i n -
                   tiff."          I n s t r u c t i o n No. 4 .

         Under t h e f a c t s o f t h e c a s e and w i t h i n t h e p a r a m e t e r s

of t h e a b o v e i n s t r u c t i o n s t h e j u r y c o u l d h a v e , f i r s t o f a l l ,

found Luksha committed no n e g l i g e n c e .                 T h e r e was n o e v i d e n c e

i n d i c a t i n g h e was n e g l i g e n t p r i o r t o t a k i n g e v a s i v e a c t i o n .

Further,         Luksha a c t e d a s a n y r e a s o n a b l e and p r u d e n t p e r s o n

would       when f a c i n g a n imminent head-on                  collision--he           moved

o u t o f t h e way.

         Secondly,         t h e f a c t t h a t Shannon w a s d r i v i n g i n t o t h e

oncoming         lane    when      approaching         Luksha       further       supports        a

finding          that    such      action        was     the     proximate          cause       of

Shannon I    s    injuries.

         W e v a c a t e t h e o r d e r g r a n t i n g a new t r i a l .           We    rein-
s t a t e t h e j u r y v e r d i c t and t h e j u d g m e n t e n t e r e d t h e r e o n .



                                                    ~LJk.8t$&A,
                                                     Chief J u s i c e
                                                                      t




W concur:
 e
       Mr.    Justice Frank B.       Morrison    specially concurs as
follows:
       I concur in the result but not in all that is said in
the majority opinion.
       The majority dismisses negligence on the part of the
defandant without discussing defendant's statutory violation.
Is    the majority       taking   the position        that defendant was
involuntarily across the centerline in the wrong lane of
traffic?       If so there is support in the law excusing the
statutory violation.            However,   if   the defendant made            a
calculated judgment to leave his lane of traffic for some
reason, a holding that a             statutory violation          is excused
represents new       law in Montana.           The issue is concluded
without discussion.            The majority simply states that the
defendant's conduct was to be considered by the jury under
the    "reasonable       and    prudent    person"      standard.           The
defendant's statutory violation is ignored.
       I    would   reverse    the   granting    of    a    new    trial    and
reinstate the defense verdict for the reason that the jury
could have found that any negligence on the part of the
defendant was not a proximate cause of the accident.                        The
record in this case supports the defense verdict on the basis
that       plaintiff's   conduct,     rather    than       the    conduct   of
defendant, formed the sole proximate cause of the accident
and consequent injuries to the plaintiff.
Mr. Justice Daniel J. Shea, dissenting:

       I would affirm the order granting a new trial.
       The    statutory     violation      of   defendant        driver    is
clear--the tail end of his tractor-trailer rig was on the
wrong side of the road at the time of collision.                    I would
further hold as a matter of law that at least one proximate
cause of the accident was the pup-trailer being on the wrong
side of the highway at the time of impact.                Regardless of
plaintiff's initial negligence, he had a right to expect that
when he recovered from his own driving error that his own
lane of traffic would be clear.
       It     is   not    necessary     that    the   driver       of     the
tractor-trailer rig be actively negligent.            Here, he may not
have been.         He swerved his rig to avoid the plaintiff's
vehicle which was initially in the wrong lane of traffic.
However, the effect of swerving the rig was to swing the
pup-trailer into plaintiff's lane of travel.             I have no doubt
that a contributing proximate cause of the accident was the
failure of the defendant driver to have his rig in the proper
lane     of   travel.      There   being    negligence      (a    statutory
violation) and there being negligence which was at least a
contributing proximate cause of the accident, the jury could
not properly absolve the defendant of all responsibility.
Therefore, the trial court was correct in granting a new
trial.
       The distance between the front bumper of the tractor to
the rear bumper of the pup-trailer was 73 feet, 6 inches.
The pup trailer was hooked to the main trailer with a 15 foot
tongue that produced a "swivel at the back of the truck."
This combination rig made it an extremely long and dangerous
highway vehicle, and the danger was multiplied many times
over by the fact that the tractor was pulling 10,000 gallons
of gasoline.   Plaintiff, an 87 year old man, regardless of
his own initial negligence in swerving onto the lane of the
tractor-trailer, had a right to assume that once he recovered
from his own driving error he would not be confronted with
the pup-trailer blocking in part his lane of travel.
     The extreme length of the tractor-trailer rig made it
impossible for the defendant driver to have his rig under
control.   Although federal and state laws seem to be ever
more permissive as to allowable tractor-trailer lengths, the
traffic safety laws must also be interpreted to protect the
driving public who meet these monsters on the highway.    We
have failed in that duty here.
