                                        No. 88-378
                        IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            1988



KATHRYN ANN NELSON,
                         Plaintiff and Respondent,
            -vs-
FAIRMONT HOT SPRINGS RESORT, INC.,
                         Defendant and Appellant.




APPEAL FROM:             The District Court of the Second Judicial District,
                         In and for the County of Silver Bow,
                         The Honorable Arnold Olsen, Judge presiding.
COUNSEL OF RECORD:
            For Appellant:
                         Ross P. Richardson; Henningsen, Purcell, Vucurovich
                         and Richardson, Butte, Montana
            For Respondent:
                         Clinton H. Kammerer, Missoula, Montana



                                           Submitted on Briefs:   Oct. 6, 1988
                                             Decided: November 1, 1988




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                                           Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
      Fairmont Hot Springs, Inc. (Fairmont), appeals an order
of the Second Judicial District, Silver Bow County, setting
aside a jury verdict for the defendant and ordering a new
trial for plaintiff Kathryn Nelson (Nelson) on ner personal
injury suit.
      The issues on appeal are as follows:
      1. Did the District Court abuse its discretion by
setting aside the jury verdict in favor of the defendant
because there was substantial credible evidence in the record
to support the verdict?
       2. Did tne District Court err in failing to give
Defendant's Proposed Instruction No. 24 on subsequent inju-
ries and damages?
       3. Does the 45-day limit imposed by          Rule 59,
M.R.Civ.P.,   apply to plaintiff's post-trial motions after
remand by this Court directing the District Court to recon-
sider those motions?
       We reverse.
       Nelson was on the Fairmont premises on December 30 and
31, 1984, while visiting relatives, who leased a Fairmont
time-share condominium. After dinner and drinks, Nelson and
her companions decided to go swimming in the Fairmont pools.
Fairmont closes its pools to the general public at 10:OO p.m.
However, hotel guests and condominium owners can still access
the pools with a special key.     It was just after midnight
when they accessed the pools with one of these keys.
       After swimming indoors for a short time, they decided
to go outside to the outdoor pool to experience the cold.
Although it was a cold December evening, near zero degrees,
the Nelson party wanted to swim in the outdoor heated pools
while experiencing the cold weather around them, and they
went outside for this express purpose.
       W'nile hurrying back indoors along the pathway leading
to the indoor pool, Nelson slipped and fell and injured
herself. She made no report to the resort management of her
fall and injuries; however, she filed complaint against them
on May 5, 1986, and a jury trial was had in September 1987.
The jury returned a defense verdict.           Plaintiff made
post-trial motions for judgment N.O.V. or, in the alterna-
tive, for a new trial.
       The District Judge ordered a new trial and defendants
appealed in October 1987. This Court remanded that appeal on
January 12, 1988, with instructions for the trial judge to
reconsider those post-trial motions and to make specific
findings if either of the motions were granted. It was not
until June that the District Court held another hearing and
then adopted verbatim plaintiff ' s findings of fact and con-
clusions of law to support a new trial.      The findings and
conclusions determined that there was insufficient evidence
to support the jury's defense verdict. The court issued an
order for a new trial pursuant to S 25-11-102(6), MCA. We
disagree and vacate the District Court's order granting a new
trial.
       Because we reverse on Issue 1, there is no need to
discuss appellant's further issues.

                       I.   NEW TRIALS
(a) Standard of Review
      The District Court abused its discretion in ordering a
new trial because there was substantial credible evidence in
the record to support the jury's verdict.
      Granting a new trial is discretionary with the trial
judge; however, this discretion is not without limitation.
AS we stated in Kincheloe v. Rygg (19681, 152 Mont. 187, 191,
448 P.2d 140, 142:
             Although the granting of a new trial for
             insufficiency of the evidence is a
             discretionary power of the trial court
             which will not be disturbed except for
             abuse of discretion, the trial court's
             discretion is exhausted when it finds
             substantial evidence to support the
             verdict.
      Thus, if there is substantial credible evidence to
support the jury's verdict, it must stand. Townsend v. State
of Montana    (Mont. 1987), 738 P.2d     1274, 44 St.Rep. 1014.
      This Court has defined substantial evidence as any
relevant evidence which a reasonable mind might accept as
adequate to support a conclusion. State v. Lamb (1982), 198
Mont. 323, 646 P.2d 516. A review of the trial transcript
reveals such substantial evidence. The jury which heard the
defendant's testimony determined it to be credible.      "If
there is conflicting evidence in the record, the credibility
and weight given to such conflicting evidence is the province
of the jury and not of this Court."      Wilkerson v. School
District No. 15, Glacier County (Mont. 1985), 700 P.2d 617,
621, 42 St.Rep. 745, 748.    The evidence reviewed by this
Court must be viewed in a light most favorable to the pre-
vailing party. Gunnells v. Hoyt (Mont. 1981), 633 P.2d 1187,
1191, 38 St.Rep. 1492, 1495. We will now review the evidence
which   substantially   supports the    jury   verdict.   Because
sufficiency of    the   evidence is    the   critical question on
appeal, a detailed review of the record is necessary.

(b) The Trial Record
      Nelson's complaint alleged that Fairmont was negligent
in failing to warn the plaintiff of the hazardous condition
on the deck area around the outside pool and by failing to
maintain and police the same.
      The defendant maintained that it took all reasonable
steps to eliminate hazards and adequately warned of any
possible hazards.    Additionally, it asserted that Nelson
assumed the risk of swimming past 10:OO p.m. at night and her
accident was caused by her own negligence by swimming after
consuming alcohol and by failing to use ordinary care in
negotiating the obviously icy pathway. Lastly, the defense
contended that the head, neck, back and shoulder injuries
suffered by Nelson were not proximately caused by her fall at
Fairmont since she was subsequently involved in an alterca-
tion in which her nose was broken and then involved in a car
wreck which rendered her unconscious.
      Testimony at trial was conflicting on some points.
This jury, based on the evidence, chose to believe the defen-
dant, and that is their right. The trial judge is not al-
lowed to weigh the evidence on a motion for new trial when
conflicting evidence is presented.       Lindquist v. Moran
(1983), 203 Mont. 268, 662 P.2d 281. Such is the province of
the jury.    It is an abuse of discretion for the District
Court to grant a new trial under the facts of this case.
Lindquist, 662 P.2d at 285.
      It was clear that guests who swam after 10:OO p.m. did
so at their own risk. Ten o'clock p.m. was the time when the
lifeguards went off duty and the doors were locked to the
general public.   There were large signs on the entrance to
the pool area and on the door to the outside pool stating
this policy.
      Dan Klemann, executive assistant at Fairmont, testified
regarding the pool facility and procedures of maintenance.
He testified that on the roof of the adjacent building there
are two 400-watt Mercury vapor lights which light the outdoor
walkway to the pool.   Pictures of the same were admitted into
evidence and given to the jury to show the well-lit view of
the walkway.
         Jake Maciag, a certified lifeguard employed at Fairmont
during the time in question, also testified regarding the
specific winter operation of Fairmont's outdoor pools. After
Labor Day, the pool was only open to the general public from
5 : 0 0 p.m. to 10:OO p.m. during the week, and from 1 : 3 0 p.m.
to 10:OO p.m. on weekends. Additionally, doors to the out-
side pool from the men's and women's dressing rooms were
sealed and access to the outdoor pool came only from one main
door connecting the indoor pools.    The door always had a
large warning sign on it which read "CAUTION, ICE" or "WATCH
FOR ICE."  This door swung out to the pool so that anyone
going to the outdoor pool necessarily would have to see the
sign.
      Additionally, there was a specific procedure for
"clearing the path" from the door to the edge of the outdoor
pool.   Lifeguards would come to work at 1 : 3 0 p.m. and immedi-
ately clean the pathway from the building to the edge of the
outdoor pool. If ice was present, they would use a pump to
force hot water onto the area, and the ice would be chipped
away by hand, if necessary. Then, the path would be vacu-
umed. Between 1 : 3 0 and 10:OO p.m., lifeguards would maintain
the pathway in this manner, policing it every twenty minutes,
keeping it free from snow and ice.     After the sun went down,
it made it more difficult to keep the ice off in the eve-
nings. In that case, rubber-backed mats were thrown over the
ice.   If these became encrusted with ice, they were also
cleaned.
      The lifeguards went off duty at 10:OO p.m. At that
time, they would place clean mats over the ice and. make
certain the warning signs were on the door.        The pool was
closed to the general public at that time and heavy flood-
lights lit the path making any ice that was present readily
visible.
      Barbara Barr, the pool manager in 1984, also testifieg.
at trial.   Barr was a certified lifeguard and she utilized
both the Red Cross and the State Department of Health in
developing safety procedures for her pool operation.
Fairmont was inspected twice a year by officials from the
Health Department and met all standards promulgated by the
Department and passed on all safety requirements. Addition-
ally, a fire marshal also inspected the premises and was
satisfied with its condition and maintenance.
      Rarr also testified as to why these procedures were
enacted as opposed to alternatives. Sand could not be used
on this path because it would clog the pool pumps, as would
de-icer solutions and rock salt. Additionally, de-icer and
rock salt would burn the patron's bare feet. A canopy over-
head to protect from falling snow would block the flood-
lights, without really curing the problem because the ice on
the path also formed from water dripping off the patrons as
they walked from pool to pool.
      Both Barr and Maciag testified that they had crossed
this pathway on numerous occasions without incident and that
it was not a hazard, but could be negotiated without problem
if the swimmer used care.    Both enforced the rules promul-
gated by Fairmont and neither were aware of any accident on
December 31, 1984, because it had not been formally reported.
      Two hundred fifty thousand people per year visit the
Fairmont resort, and a formal accident reporting procedure is
used there. Any injured patrons are requested to report the
incident and complete an accident report form.     Fairmont's
records show no record of Nelson's December 31, 1984, acci-
dent report.
      Plaintiff Nelson testified that she and her companions
saw the ice on the pathway in the early morning hours of
December 31, 1984, and were aware that it was slippery. All
crossed the path safely to enter the outside pool. Plaintiff
presented conflicting testimony as to how much alcohol she
consumed that night and when.    She did not see the warning
sign.
      Plaintiff also presented expert testimony by Gerry Van
Ackeren that the icy conditions of an outdoor pool consti-
tuted a substantial hazard to the users of the pool. Plain-
tiff makes much of the fact that although this evidence was
controverted by many Fairmont professional employees, it was
not controverted at trial by any qualified expert produced by
Fairmont to testify.
      There was ice present on the walkway in the early
morning hours of December 31, 1984. This condition was open
and obvious.    Certainly there was a jury question as to
whether a hazard existed; whether Fairmont negligently al-
lowed the hazard, if any, to exist; and whether it adequately
warned patrons of the possible hazard. The jury was properly
instructed on these issues and determined them accordingly
based on the foregoing substantial credible evidence.  The
jury's verdict of "not negligent" is supported by the evi-
dence of precautionary steps taken and warnings given by
Fairmont.  This Court will not substitute its judgment for
that of the jury when no misconduct or abuse of discretion
has been shown. We do not hesitate to reinstate a verdict
supported   by   substantial   credible   evidence.   Nelson   v.
Hartman (1982), 199 Mont. 295, 648 P.2d 1176.
      Based on the lengthy trial record and the foregoing
evidence recited, appellant convinces this Court that the
District Court abused its discretion by setting aside the
verdict and awarding a new trial.
         The o r d e r g r a n t i n g new t r i a l i s v a c a t e d .   The j u r y ' s
v e r d i c t of September 2 2 , 1 9 8 7 i s r e i n s t a t e d .



                                           7/~dy-    Chief Justice




W e concur:
