                              No.    96-224
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1996



YELLOWSTONE WATER SERVICE, and
EMPIRE FIRE AND MARINE INSURANCE COMPANY,
          Plaintiffs and Respondents,
     v.

DAVID GEORGE DOTTING, and RONALD
SANNES, d/b/a/ UNITED GLASS,
          Defendants and Appellants.



APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County of Yellowstone,
               The Honorable G. Todd Baugh, Judge presiding.


COUNSEL OF RECORD:
          For Appellants:
               James A. Patteni West, Patten, Bekkedahl
               & Greeni Billings, Montana
          For Respondents:
               Tiffany B. Lonneviki Brown, Gerbase, Cebull,
               Fulton, Harman & ROSSi Billings, Montana


                            Submitted on Briefs:      September 26, 1996
                                           Decided:   November 26, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.

       Appellants David Dotting and Ronald Sannes appeal from the

findings of fact, conclusions of law, and judgment entered by the

Thirteenth     Judicial      District    Court,    Yellowstone        County.    The

District Court concluded that Dotting's negligent operation of his

vehicle actually and proximately caused the accident which occurred

on January 26, 1993, and that Sannes, as his employer, is liable

for all damages caused by Dotting.              We affirm.

       The issue on appeal is whether the District Court erred in

determining that Dotting failed to yield the right-of-way and that

Dotting's negligence actually and proximately caused the accident.

                                        FACTS

       On January 26,     1993,   on Montana Highway 201,             a   semi-truck

transporting waste water driven by Kevin Dean Valnes and owned by

Yellowstone Water Service (YWS) was headed in a westerly direction.

At the same time,       Dotting was driving a semi-truck owned by his

employer,     Sannes,   headed south on a         dirt       road that    ultimately

intersects with Highway 201.           The weather conditions were clear and

the main road surface was dry.

       Highway 201 is hilly, and one hill crests 700 feet east of the
intersection with the dirt road, thus limiting the visibility from

the intersection of west-bound traffic.                Portions of Highway 201
east of the intersection, however, are visible from time to time

from    various     points     along     the    dirt     road,     incl uding    the

intersection.      It is only the final quarter mile of the dirt road,

and    only   as   to   traffic   between       the    two    hills    nearest   the



                                          2
intersection, that west-bound traffic is not clearly visible.                     A

vehicle   traveling    south on    the     dirt   road and arriving        at   the

intersection does not have an opportunity to observe west-bound

traffic on Highway 201, which is cresting one of the hills, unless

it waits at the intersection for a sufficient period of time to

allow possible traffic that cannot be seen between the two hills to

clear.    Both drivers were familiar with this intersection and the

hazards posed by the limited visibility.

     Dotting stopped his truck at the intersection.                  The parties

disagree whether he stopped his truck for a short period or for two

to three minutes, as Dotting testified in his deposition.                  Dotting

then slowly proceeded into the intersection.             Valnes testified that

this occurred after he crested the hill, but Dotting testified that

he saw no traffic when he entered into the intersection.                    In any

event, Dotting pulled out onto Highway 201 and his trailer had not

completed its turn before the truck driven by Valnes approached the

intersection at approximately 55 m.p.h.              Valnes was forced to take

evasive action by applying his brakes but was unable to bring his

tractor/trailer   to   a   stop   in   the    less    than   700   feet   distance

between him and Dotting.     Dotting's vehicle crossed the center line

while making its turn and thus made it impossible for Valnes to

pass Dotting on the left.         Valnes therefore drove his truck into

the ditch to avoid a collision.            The investigating police officer

issued a citation to Dotting for failure to yield.

     Valnes'   overturned    tractor/trailer          suffered damage      in   the

amount of $14,706.15.      Empire Fire and Marine, the insurer of YWS,



                                       3
paid YWS the sum of $12,706.15 for the damages.                                 YWS paid the

$2,000      not    covered by        insurance         and    subrogated      its    claims     to

Empire.        YWS and Empire filed a complaint for property damages

against Sannes and Dotting.                  The District Court determined that

Dotting failed to operate his vehicle in a careful and prudent

manner,       thereby breaching his              duty owed to YWS,             and that        his

actions actually and proximately caused the accident on January 26,

1993.       The District Court rendered judgment on behalf of YWS and

Empire against Sannes and Dotting who appeal this determination.

                                             ISSUE

          Did the District Court err in determining that Dotting failed

to yield the right-of-way and that Dotting1s negligence actually

and proximately caused the accident?

          We review a district court1s findings of fact to determine

whether they are clearly erroneous.                      Daines v. Knight (1995), 269

Mon t .    320 ,   324 ,   888   P. 2 d   904,   906.        This Court has adopted a

three-part         test    to determine whether the               findings         are   clearly

erroneous.          Interstate Prod.         Credit Assln v.           DeSaye       (1991),    250

Mont.      320,    322,    820 P.2d 1285,            1287.     The test provides that:
(1) the Court will determine whether the findings are supported by

substantial         evidence;       (2)    if    the        findings   are     supported        by
substantial evidence the Court will determine if the trial court

has misapprehended the evidence; (3) if the findings are supported

by    substantial          evidence        and       that     evidence       has     not      been

misapprehended, this Court may still find that a finding is clearly

erroneous when, although there is evidence to support it, a review


                                                 4
of     the   record     leaves       the    Court          with     the   definite    and    firm

conviction that a mistake has been committed.                             DeSaye, 820 P.2d at

1287.

        The standard of review for a district court's conclusions of

law is whether the court's interpretation of the law is correct.

Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469,

898 P. 2d 680,        686 i    Steer,      Inc.       v.   Dep' t   of Revenue     (1990),    245

Mont. 470, 474-75, 803 P.2d 601, 603-04.

        YWS premises its argument that the District Court did not err

in concluding that Dotting was negligent for failure to yield the

right-of-way     on      the       basis   that        the    District     Court     found   that

Dotting saw or should have seen Valnes and therefore found him to

be more at fault than YWS who had the right-of-way.                                YWS asserts

that    this   finding        is    supported by substantial                evidence     in the

record and is not clearly erroneous.                         The court, however, did not

make an unequivocal             finding that the tractor/trailer driven by

valnes was visible to Dotting and that Dotting did see or should

have seen the oncoming vehicle.                       The court stated that,          "Dotting,

who had stopped his truck/tractor semi-trailer at a stop sign .

pulled out in front of Valnes .                            as plaintiff [Valnes] crested

a hill 700' from the intersection."                        Although there is substantial

evidence in the record for the court to make a finding that Valnes'

vehicle was visible at the time Dotting entered the intersection,

the court did not unambiguously state this as one of its findings.

        Furthermore,      the court did not premise its conclusion that

Dotting was negligent upon a finding that the YWS tractor/trailer



                                                  5
was visible to Dotting when he entered the intersection.              Rather,

the court, in part, based its conclusion that Dotting was negligent

on its finding that despite the fact that a "blind spot" did exist,

Dotting could nonetheless have seen Valnes had he waited at the

stop sign for a sufficient amount of time such that any unseen

traffic would become visible.        In addition, the court found that

Dotting was instructed to wait for a sufficient amount of time to

allow for unseen traffic and that it was his usual practice to do

so, but on this occasion he did not wait long enough.

       Although there is conflicting testimony regarding the length

of    time Dotting waited at      the stop sign,   there     is   substantial

evidence to support the court's finding that Dotting could have

yielded to oncoming traffic if he waited for the traffic obscured

by the hill to become visible.           Sannes himself testified that a

person could see west-bound vehicles from the intersection before

they began their ascent of the hill which crests 700 feet before

the   intersection.     Other witnesses'     testimony and photographic

exhibits also support this finding.          We therefore determine that

the District Court's finding that Dotting could have waited for any
unseen traffic in the portion of the road not observable from the

intersection to clear is based upon substantial evidence which was
not misapprehended by the court.          This finding is therefore not

clearly erroneous.

       Utilizing a standard negligence analysis the District Court

concluded that Dotting failed to operate his vehicle in a careful

and prudent    manner   when he    failed   to yield   the    right -of -way,



                                     6
contrary to       §§   61-8-341 and -344, MCA, and therefore breached the

duty he owed to YWS.             Dotting argues that the District Court erred

in     its   conclusion that         he was            negligent   because    there    was   no

negligence      per se       since   he       did not       violate    a    traffic   control

statute, and further, that he acted as a reasonably prudent person

when he entered onto the highway.                        He argues that he did not fail

to yield, as required under               §    61-8-341, MCA, but rather,             that he

waited at      the     stop sign and seeing no                    traffic   he entered the

intersection.

        Section 61-8-341, MCA, provides:

         (1) The driver of a vehicle shall stop as required by
        61-8-344 at the entrance to a through highway and shall
        yield the right -of -way to other vehicles which have
        entered the intersection from said through highway or
        which are approaching so closely on said through highway
        as to constitute an immediate hazard, but said driver
        having so yielded may proceed and the drivers of all
        other vehicles approaching the intersection on said
        through highway shall yield the right -of -way to the
        vehicle so proceeding into or across the through highway.
              (2) The driver of a vehicle shall likewise stop in
        obedience to a stop sign as required herein at an
        intersection where a stop sign is erected at one or more
        entrances thereto although not a part of a through
        highway and shall proceed cautiously, yielding to
        vehicles not so obliged to stop which are within the
        intersection or approaching so closely as to constitute
        an immediate hazard, but may then proceed.
The District Court, in its findings, determined that Dotting could

have     waited      for    oncoming      traffic           to    become    visible    before
proceeding      into       the   intersection.              The    court    concluded    that

Dotting's failure to wait was not careful and prudent,                                but was

negligent and in violation of                 §§       61-8-341 and -344, MCA.

        It is clear from the court's findings that Dotting could have

yielded to the vehicle driven by Valnes, which was approaching in

                                                   7
such     a   manner   as      to    constitute     an      immediate     hazard   under

§    61-8-341, MeA.      The extremely low speed at which Dotting entered

the intersection, due to the nature of his tractor/trailer and the

load he was transporting, would make traffic normally ascending a

hill only 700 feet away from the intersection an immediate hazard

and would require the driver at                  the   intersection to yield the

right-of-way by determining if all oncoming traffic had cleared.

       We    therefore       hold   that   the     court     correctly    interpreted

§§   61-8-341 and -344, MCA, to apply to Dotting's actions entering

the highway from the limited visibility intersection.                    Furthermore,

the court correctly concluded that Dotting actually and proximately

caused the accident which resulted in property damage in the amount

of $14,706.15.

       We therefore affirm the District Court.




                                                        Justlce

We concur:




-rta~  Chief Justi~~

                         \




     kI@"~~
       Justices


                                           8
