                               No. 14775
                 IN THE SUPREME COURT OF THE STATE OF MONTANA




GERALDINE PATRICIA METS, mother of
Decedent, Casey Edward Mets, GEORGE
DOUGLAS METS, JR., as guardian and as
brother of Decedent, Casey Edward Mets,
and GEORGE DOUGLAS METS, JR., as
Personal Representative for the Estate
of Casey Edward Mets,
                           Plaintiffs and Appellants,


EDGAR C. GRANRUD,
                           Defendant and Respondent.


Appeal from:       District Court of the Eleventh Judicial District,
                   Honorable Robert Sykes, Judge presiding.
Counsel of Record:
   For Appellants:
         Moore and Doran, Kalispell, Montana
         James D. Moore argued, Kalispell, Montana
         Warden, Walterskirchen and Christiansen, Kalispell,
          Montana
   For Respondent :
         Hash, Jellison, O'Brien and Bartlett, Kalispell,
          Montana
         James C. Bartlett argued, Kalispell, Montana


                                  Submitted:   November 6, 1979


Filed:
         FEij   2 6 13%
Mr. Justice John C. Sheehy delivered the Opinion of the Court.

     The survivors and personal representative of Casey
Mets appeal from the order and judgment of the Flathead
County District Court granting summary judgment in favor
of Granrud; and Granrud appeals from the subsequent entry
of summary judgment in favor of the survivors on his
counterclaim.
     On December 19, 1976, a Ford jalopy departed from its

proper lane of traffic on Whitefish Stage Road, where it       .
had been proceeding in a southerly direction.    The vehicle
passed over the edge of the road, through a barrowpit and
collided with a telephone pole.   The accident occurred on
the second of two curves located south of the intersection
of Granrud Lane and Whitefish Stage Road near Kalispell,
Montana.    The day had been sunny and clear, and the pavement
was dry.    There were no skid marks nor any evidence that the

driver had applied the brakes.
     Little physical evidence existed at the scene of the
accident, and the vehicle was practically disintegrated as a
result of the impact with the telephone pole.    Both Mets and

Granrud were thrown from the vehicle, and Mets died without
regaining consciousness.    Granrud suffered extensive injuries,
and has no memory now of any of the events surrounding the

accident.   Additionally, there were no eyewitnesses to the
accident.
     On August 10, 1977, the survivors and personal repre-
sentative of Mets brought suit alleging that Granrud's negligent
driving caused the death of their decedent.     On October 18, 1977,
Granrud filed his answer and counterclaim alleging that Mets
had been driving the vehicle when the collision occurred.
On May 31, 1978, the District Court granted Granrud's motion
for summary judgment, and accordingly judgment was entered

on June 5, 1978.     On June 2, 1978, the survivors moved
for summary judgment on Granrud's counterclaim.     The survivors'
motion was granted, and judgment was entered on June 5,
1978.
     On June 8, 1978, the survivors filed a motion to stay

judgment, reconsider and vacate summary judgment.     The
District Court set the judgments aside and granted the sur-

vivors additional time in order to test the pitman arm,
a steering rod.
        On January 25, 1979, the District Court granted Granrud's
motion for s a y
            -r        judgment on the ground that there was "no

evidence, circumstantial or direct, establishing any negligence
on the part of the defendant on any theory"; and judgment
was entered on January 30, 1979.    On February 16, 1979, the
survivors moved for summary judgment on Granrud's counterclaim;
and judgment for the survivors was entered on February 16,
1979.     The survivors appealed and Granrud cross-appealed.
        The dispositive issue on appeal is whether the
doctrine of -- loquitur is applicable under the facts
            res ipsa
of the instant case.
        The doctrine of -- loquitur simply stated is:
                        res ipsa
that when an instrumentality which causes injury, without
any fault of the injured person, is under the exclusive
control of the defendant at the time of the injury, and the
injury is such as in the ordinary course of things does not
occur if the one in control uses proper care, then the law
infers negligence on the part of the one in control as the
cause of the injury.    Knowlton v. Sandaker (1968), 150 Mont.
438, 446, 436 P.2d 98, 103; Whitney v. Northwest Greyhound
Lines (1952), 125 Mont. 528, 533, 242 P.2d 257, 259. The
elements necessary for the application of -- loquitur
                                          res ipsa

are:     (1) the instrumentality which caused the injury must
be within the exclusive control of the defendant; (2) the

injury must be one that does not ordinarily occur if the
party in control uses proper care; (3) the injury must not
be due to any fault on the part of the injured person.
Montana Deaconess Hospital v. Gratton (1976), 169 Mont. 185,
190, 545 P.2d 670, 673; Jackson v. William Dingwall Company
(1965)) 145 Mont. 127, 135-136, 399 P.2d 236, 241; Krohmer
v. Dahl (1965), 145 Mont. 491, 498, 402 P.2d 979, 983;
Stocking v. Johnson Flying Service (1963), 143 Mont. 61, 68,
387 P.2d 312, 316, Prosser, - - Torts 539, at 214 (4th
                            Law of
ed. 1971).
       Because of the absence of evidence tending to establish

that the death of Casey Mets was caused by the negligence of

Granrud, and the manner in which Granrud drove the vehicle,

the survivors rely upon the doctrine of -- loquitur to
                                        res ipsa
establish negligence on the part of Granrud.    The doctrine

of - ipsa loquitur is not an exception to the rule that
   res
the burden is on the plaintiff to prove actionable negligence,
nor does it permit a recovery on mere proof of the injury.
It merely has the force of a disputable presumption of law
and supplies the place of proof necessarily wanting when the
injured party cannot disclose the cause of his injury, but
it is apparent prima facie that the accident would not
ordinarily have happened had the defendant exercised ordinary

care.    Stocking v. Johnson Flying Service, supra, 143 Mont.
at 68.
        The first element of - - loquitur, that of "defendant's
                             res ipsa
exclusive control at the time of injury", is disputed by the
                              -4-
parties in the instant case.     Granrud contends that Mets
was driving, and the survivors contend that Granrud was
driving the vehicle.     The requirement of "exclusive control

at the time of injury" does not mean actual physical control
at the time of injury.     It may be sufficient to show that
the defendant exercised control some time prior to the
injury.    Knowlton v. Sandaker, supra, 150 Mont. at 446.
Officer Denning, following an investigation of the accident
scene, determined that Granrud was the driver and that Mets

was the passenger.     Officer Denning's determination was
based upon the location of Granrud and Mets in relation to
the position of the vehicle.      The record also indicates
that Granrud was driving the vehicle when he picked up Mets.

Granrud was observed driving the vehicle approximately
thirty minutes before the accident occurred.
        The second element of -- loquitur, that "the
                              res ipsa
injury must be one that does not ordinarily occur if the
party in control uses proper care", is lacking in the instant

case.    The plaintiff is not required to eliminate with certainty
all causes or inferences other than the negligence on the
part of the driver.    As Professor Prosser has stated:
    "All that is needed is evidence from which
    reasonable men can say that on the whole it is
    more likely that there was negligence associated
    with the cause of the event than that there was
    not." Prosser, - - Torts, S39, at 218 (4th
                    Law of
    ed. 1971)
The above cannot reasonably be said in the instant case.
Whether the cause of the accident was due to the negligence

of the driver remains in doubt.    The accident occurred at
a point where the road curves, on a sunny and clear day,
the pavement was dry, and there was no evidence that the
brakes had been applied.    Mets died as a result of the

accident and Granrud has no memory whatsoever concerning the
                                -5-
facts and events surrounding the accident.    Further, there
were no witnesses to the single vehicle accident.
     Officer Denning, the ~ontan'a
                                 Highway Patrolman who
responded to and inspected the accident scene, was deposed
and gave his opinion that the cause of the accident was that
the vehicle's pitman arm broke at a weld point as the
vehicle entered the second curve.    The record contains the
affidavit of an expert, Ralph Godtland, president of Western
Iron Works, Inc.    Godtland stated, "it is infinitely more
likely and probable that this pitman arm fractured under the
force of the impact with the utility pole at the point of
collision."   In this regard, the survivors contend that
Officer Denning lacked the requisite training, education,
experience and expertise to allow him to give his opinion
concerning the pitman arm.    The survivors filed a motion in
limine to restrict Officer Denning's testimony to matters
within the scope of his education, experience, and competence;
which was denied by the District Court.    Highway patrolmen

in Montana have been allowed to reconstruct and give their
opinion as to the cause of an accident based upon their
investigation.     See State v. Deshner (1971), 158 Mont. 188,
489 P.2d 1290.     The determination of the qualification of a
skilled or expert witness is a matter largely within the
discretion of the trial judge, and in the absence of a
showing of abuse, ordinarily will not be disturbed.    Graham
v. Rolandson (1967), 150 Mont. 270, 285, 435 P.2d 263, 271.
From our examination of the record in the instant case, we
cannot conclude that the District Court abused its discretion
in denying the survivor's motion in limine.
     In the instant case, it is possible that there was
some lapse on the drivers part and that the driver was
negligent, and because of that, the vehicle went off the
road and collided with the telephone pole.    But it is also
possible that the cause of the accident was not due to the
driver's fault; and that the cause of the accident was the
failure of the brakes to operate, a failure in the steering
mechanism, or some other reason not due to lack of care on
the part of the driver.   See Speiser, The Negligence Case:

-- Loquitur, Vol.
Res Ipsa                  2, 526.7 (1972).   In such a situation,
the balance of probabilities between, first, causes of an
accident involving the vehicle which are due to lack of
care on the part of the driver, and second, causes of an
accident not due to lack of reasonable care, are so nearly equal
that a conclusion that the driver was negligent cannot
reasonably be found and would be the result of mere speculation.
This conclusion is further supported by the confl.ictingopinions
of Denning and Godtland concerning the pitman arm and the
cause of the accident.
     Under the facts and circumstances of the instant case,
the doctrine of -- loquitur is not applicable because
                res ipsa
at least one of the three necessary elements to the appli-
cability of the doctrine cannot be shown to exist, namely;
the injury must be one that does not ordinarily occur if the
party in control uses proper care.
     The third element of -- loquitur is that "the
                          res ipsa
injury must not be due to any fault on the part of the
injured person."   From our review of the record, we cannot
determine whether there was any fault on the part of Mets.
A conclusion that Mets was or was not at fault, wholly or
partially, cannot reasonably be found and would also be the
result of mere speculation.
       Because of the combination of uncertainties involved
in the instant case, we cannot say that the unexplained
collision of the vehicle with the telephone pole would
not ordinarily occur in the absence of negligence.   As we
have stated, this is one of the necessary elements for
invoking the doctrine of -- loquitur.
                         res ipsa             Therefore, there
is no inference of negligence in the instant case, and
accordingly there was no genuine issue as to any material
fact, and Granrud was entitled to judgment as a matter of
law.
       The District Court was correct in entering summary
judgment in favor of Granrud; and in entering summary
judgment in favor of the survivors on the counterclaim.
       Affirmed.


                                        Justice

We Concur:



         Chief Justice
Mr. Justice Daniel J. Shea dissenting:

     I do not believe Officer Denning was competent to give
his opinion as to the cause of the accident.   Furthermore,
the doctrine of res ipsa loquitur does apply in this case.
     The plaintiffs filed a motion in limine seeking an order
from the trial court restricting Officer Denning's testimony
to matters within his education, experience and competence.
The trial court denied this motion and Denning then testified
at his deposition that the cause of the accident was that the
vehicle's pitman arm broke at a weld point as the vehicle entered
the second curve.   Although I do not believe that Officer Denning
should necessarily have been restricted at his deposition, I
do believe that the trial court had no right to rely on his
opinion testimony in granting summary judgment to the defendant.
Officer Denning was clearly not qualified to render an opinion
on the subject.
    An expert witness may be qualified by professional,
scientific or technical training, or have practical experience
in some field or activity conferring upon him a special knowledge.
The true test would seem to be whether the subject is sufficiently
complex so as to be susceptible to opinion evidence, and whether
the witness is properly qualified to give his opinion.   McGuire
v. Nelson (1975), 167 Mont. 188, 200, 536 P.2d 768.   The most
critical considerations to be made are the qualifications of a
person to give his opinion.   Here, on the question involved, the
highway patrolman had none at all.
     Highway patrolmen may reconstruct and give opinion testimony
as to the cause of an accident based upon their investigation.
State v. Deshner (1971), 158 Mont. 188, 193, 498 P.2d 1290.
There is no doubt here that expert opinion evidence concerning
the pitman arm is required, for the knowledge and expertise required
                               -9-
to form an opinion concerning the pitman arm is beyond that
possessed by a layman.      But Officer Denning had no qualifications
to provide the necessary opinion.      The record indicates that
he is a high school graduate, had no metallurgical training,
and no special knowledge of stress or force.     Furthermore,
he had no special training in mechanics and possessed no
identificable qualifications or knowledge relating to weld
strength, metal stress, design or defect.     He had no previous
experience investigating an accident involving a broken
pitman arm or defect in the steering mechanism.     His testimony
at deposition was devoid of any factual basis in support of
his opinion concerning the pitman arm.
     The knowledge and experience required in the instant
case is beyond that within the normal competence of a highway
patrolman.    An expert opinion concerning the pitman arm does
not relate at all to training or experience in estimating
speed, examining skidmarks, and the performance of similar
investigative functions.    The question related to metallurgical
factors and the officer had absolutely no qualifications to
give an opinion in this area.
    Modern day lawsuits could rarely function without the
aid of expert witnesses.    Indeed, it seems that the need for
the so-called expertise at trial sua sponte gives birth to
                      I
the presence of an e?fect of some kind to provide the necessary
opinion.     But there are limits to the use of expert testimony,
and trial courts must recognize those limits.     Here, Officer
Denning clearly lacked the necessary qualifications to
render an opinion in relation to the metallurgical failure
of the pitman arm.    Discretion of a trial court in permitting
expert testimony is no substitute for careful consideration
of the underlying qualifications of a witness to advance his
opinion on a subject requiring expert opinion.
                                -la-
     The determination by the majority that a conclusion
                was negligent
that the driver/would be mere speculation is but a speculative
comment itself, for it fails to consider the proper role of
res ipsa loquitur.
     I have no quarrel with the three element test set forth
by the majority as necessary for the application of the doctrine
of res ipsa loquitur; Montana Deaconess Hospital v. Gratton
(1976), 169 Mont. 185, 545 P.2d 670, correctly sets it
forth.
     The first element of res ipsa loquitur, that of "defendant's
exclusive control at the time of injury", does not require
direct evidence of actual physical control at the time of
injury.   It is sufficient to show that the defendant exercised
control some time prior to the injury, Knowlton v. Sandaker
(1968), 150 Mont. 438, 446, 436 P.2d 98.    The record reveals
that Granrud was driving the vehicle when he picked up Mets;
and Granrud was observed driving the vehicle approximately
thirty minutes before the accident occurred.      Officer Denning,
following an investigation of the accident scene, determined that
Granrud was the driver and Mets was the passenger.     Officer

Denning's determination was based upon the location of Granrud
and Mets in relation to the position of the vehicle.     The first

element of res ipsa loquitur is thus satisfied.
     The second element of res ipsa loquitur, that "the injury
must be one that does not ordinarily occur if the party in
control uses proper care',   is also satisfied.   The accident
occurred at the point where the road curves, on a sunny and
clear day, the pavement was dry, and there was no evidence
that the brakes had been applied.     Mets died as a result of the
accident and Granrud has no memory whatsoever concerning the
facts and events surrounding the accident.    Additionally, there
                               -11-
were no witnesses to the single vehicle accident.   Officer
Denning investigated the accident scene and said that there
were no objects in or on the road which would have caused the
accident.
                                          normal
     It is reasonable to assume that undedthe circumstances
                   do not
automobiles simply/veer off the road into a borrow pit unless
the driver has been negligent.   The majority conclusion that
it is possible that the accident was not due to the driver's
fault, that is, that the cause of the accident may have been
due to brake failure, or some other reason, is itself mere
speculation.   The plaintiffs here were not required to
eliminate all possibilities of how the accident may have
happened.   Plaintiffs were required only to establish a factual
basis to infer negligence on the part of the driver.   The
inference is clear in this case; whether the jury would have
accepted this inference is yet another matter.
     The conflicting opinions of Officer ~enningand Mr.
Godtland concerning the pitman arm as the causative agent
of the accident, do not cancel the application of the doctrine
of res ipsa loquitur.    Indeed, if this were the case, a
defendant could defeat the application of res ipsa loquitur
by hiring himself a pseudo expert (in essence, what happened
in this case) to render an opinion as to what caused the
accident.   Here the majority has classified Officer Denning
as an expert witness in relation to metalurgy and pitman arms
and by permitting his testimony, has denied plaintiffs an
opportunity to take their case to the jury under the doctrine
of res ipsa loquitur.   This is hardly a fair result, especially
when plaintiffs had their own expert, who was properly qualified,
to testify that the cause of the accident was not a broken
pitman arm or defective steering mechanism.
     Assuming the qualifications of Officer Denning to give his
opinion in relation to the pitman arm, the majority cannot then
                              -12-
declare that Mr. Godtland was not at least equally qualified
to give his opinion that the accident was not caused by a
broken pitman arm or defective steering mechanism.       If the
jury chose to believe Mr. Godtland rather than Officer Denning,
then the jury could proceed to find negligence on the part of
the driver based upon the inferences permitted by the doctrine
of res ipsa loquitur.     But the majority here has usurped the
function of the jury.
     The third element of res ipsa loquitur, that "the injury
must not be due to any fault on the part of the injured person",
is also satisfied.     There is absolutely no evidence indicating
that the deceased, was at fault in any manner.      Obviously, there
is no direct evidence as to the lack of fault on the part of the
deceased; just as there is no direct evidence of fault on the
part of the defendant.     But this situation calls for the
application of res ipsa loquitur.       The doctrine permits the case
to go to the jury where there is a lack of direct evidence on
these matters.   If there were direct evidence, the doctrine
either would not apply or would have limited applicability.
     The Hawaii case of Winter v. Skemran (1976), 57 Hawaii
279, 554 P.2d 1137, is in point.     The facts of Winter are
similar to the facts of this case.       In Winter, a vehicle failed
to negotiate a curve, crossed into the opposite lane of traffic,
onto the opposite shoulder of the highway, and traveled on the
shoulder parallel to the pavement for 225 feet until it collided
with a utility pole.    After the collision with the pole, the
vehicle overturned.     There were no defects in or objects on
the highway, no mechanical defect in the vehicle was discovered,
and no eyewitnesses of the accident.       Both the driver and

passenger died from injuries received in this single car accident.
Under these facts, the Hawaii Supreme Court held that an
inference of negligence was created through the application
of the doctrine of res ipsa loquitur.
                                 -13-
         The only difference between Winter and the instant case
 is the question of mechanical defects.     In Winter, no
..mechanicaldefects in the vehicle were discovered.      In the
 instant case Officer Denning determined that the pitman arm
 broke, which was the cause of the accident.    However, as
 previously discussed, Officer Denning was not qualified as
 an expert or competent to give such an opinion concerning
 causation; and therefore this opinion should not have been
 considered by the District Court.    Furthermore, there was
 contrary opinion evidence provided by the plaintiffs.
         The doctrine of res ipsa loquitur is not an exception
 to the rule that the burden is on the plaintiff to prove
 actionable negligence, nor does it permit a recovery on mere
 proof of the injury.     It merely has the force of a disputable
 presumption of law and supplies the place of proof necessarily
wanting when the injured party cannot disclose the cause of
 his injury, but where it is apparent that the accident would
 not ordinarily have happened had the defendant exercised ordinary
 care.     Stocking v. Johnson Flying Service (1963), 143 Mont. 61,
 68, 387 P.2d 312.
         The procedural effect of the application of the doctrine
 of res ipsa loquitur is important.    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 loquitur, where it applies,
 does not convert the defendant'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.       Helmke
 v. Goff (1979), - Mont     .     , 597~.2d1131, 36   St.Rep. 1104,
 1107-1108.
     The trial court should have denied the defendant's motion
for summary judgment, and allowed the plaintiff to take his
case to the jury through the application of the doctrine
of res ipsa loquitur.   Under the facts, reasonable people
could reach differing conclusions as to the negligence of
the defendant.   See Helmke v. Goff, supra, 36 St.Rep. at 1108.
The majority opinion has undermined one of the principle
functions of res ipsa loquitur--to let a jury determine the
ultimate fact of negligence if there is sufficient circumstantial
evidence to create an inference.   But here, the trial court
and this Court had become the trier of fact by declaring that
other reasonable possibilities exist which are inconsistent
with the driver's negligence.   That may well be true; but if
so, it should be a jury making that decision.
