                                       No. 12152

          I N THE SUPREME COURT O THE STATE O MONTANA
                                 F           F

                                           1972



EDWARD T. CHARLIE,

                               P l a i n t i f f and A p p e l l a n t ,

      -vs   -
HENRY FOOS,

                               Defendant and Respondent.



Appeal from:           D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                       Honorable Robert Wilson, Judge p r e s i d i n g .

Counsel of R e c ~ r d :

      For Appellant :

                Michael J. Whalen, a r g u e d , B i l l i n g s , Montana.

      F o r Respondent :

                Anderson, Symmes, F o r b e s , P e e t e & Brown, B i l l i n g s ,
                 Montana.
                Weymouth D. Symmes and J o h n L. H i l t s a r g u e d , B i l l i n g s ,
                 Montana.



                                                   Submitted:              O c t o b e r 27, 1972

                                                      Decided :--
                                                                     NOV 1 4 1972
F i l e d : vnir   1 4 1T
                        9l
 M r , J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court.

        This i s an appeal from a judgment entered on a j u r y v e r d i c t
 f o r defendant i n a personal i n j u r y a c t i o n t r i e d i n t h e d i s t r i c t
 c o u r t of t h e t h i r t e e n t h j u d i c i a l d i s t r i c t , Yellowstone County,
 t h e Honorable Robert H. Wilson, p r e s i d i n g .
        The m a t e r i a l f a c t s were disputed by t h e p a r t i e s throughout
 the t r i a l .     However, we w i l l r e c i t e them i n a view which would
 correspond with t h e j u r y v e r d i c t and t h e p r e v a i l i n g party.
 P l a i n t i f f Edward T. C h a r l i e was i n Laurel, Montana, on Saturday,
 May 2 , 1970.         He was t r a v e l i n g with one P e t e r Spotted Wolf and
 they were heading toward Wyoming, looking f o r work.                           While i n
 Laurel, p l a i n t i f f went up t o Henry Foos, defendant h e r e i n , and
 asked him i f he had any work,                Foos s t a t e d t h a t he had no work
 a s such, b u t t h a t he did have some t r e e s t o t r i m and asked i f
 p l a i n t i f f would be i n t e r e s t e d i n t h a t work.    P l a i n t i f f s a i d he
. h a d done t h i s type of work before and he would do i t , b u t he
would need t h e h e l p of P e t e r Spotted Wolf.
        The t h r e e p a r t i e s then went out t o Foos' ranch.                 Foos asked

 p l a i n t i f f how much h e wanted f o r the work and p l a i n t i f f r e p l i e d
                                                     n t e trees
 t h a t $4 was a l l he wanted. They worked /for a out an hour and B
 then wanted t o go t o town t o e a t .             Foos took them back t o town
 and paid them $4 f o r t h e work they had done.                     A t t h i s time Foos
 thought t h e employment had ended, and he was through with them.
        However, about 1 p.m.
                        1                  t h a t same evening, p l a i n t i f f and
 Spotted Wolf came again t o t h e home of Foos and got him out of
bed.      A t t h i s point Foos was a f r a i d t h a t he might have some
 trouble.          Foos was 77 years old a t t h e time.              H e had from $70 t o
 $75 i n t h e house.        P l a i n t i f f t o l d Foos t h a t he and Spotted Wolf
wanted another $2,but d i d n o t say what f o r . Foos was f r i g h t e n e d and
 gave them t h e d o l l a r he had i n h i s pocket.               P l a i n t i f f and Spotted
 Wolf went back i n t o town, then r e t u r n e d , and s l e p t i n              FOOS'    barn,
 Foos had no idea they were i n t h e barn, a s he had never t o l d
 them they could s l e e p on h i s place.
        The next morning, May 3 , 1970, p l a i n t i f f and Spotted Wolf
went t o t h e Foos home and wanted something t o e a t , Because
   ' .
&
A.   ":t$?; J-
            h
   i n t d - f was s t i l l a f r a i d , he fed them what he could f o r break-
fast.      He d i d n o t t e l l them t o go back out t o work i n t h e t r e e s ;
h e thought t h e work was ended.                 P l a i n t i f f and Spotted Wolf d i d
go back t o t h e t r e e s and began trimming,                  While p l a i n t i f f was
working i n t h e t r e e , a limb buckled back and severed h i s r i g h t
arm except f o r a small amount of s k i n and f l e s h .
        Foos heard some y e l l i n g and upon coming out of h i s house
saw p l a i n t i f f s t i l l up i n t h e t r e e .    ~ o o s 'son, Clarence, whose
farm was only about 2 blocks away, heard t h e y e l l i n g and came
over t o a s s i s t one Les Bissonette i n removing p l a i n t i f f from t h e
tree.      He was taken t o a h o s p i t a l , where i t was found necessary
t o amputate p l a i n t i f f ' s arm.
        The cause went t o a j u r y t r i a l and judgment was entered f o r
defendant, Henry Foos.               From t h a t judgment and order denying a
motion f o r a new t r i a l , p l a i n t i f f , Edward T. Charlie,appeals.
        Appellant a l l e g e s four e r r o r s by t h e d i s t r i c t c o u r t ,
        F i r s t , t h a t he was deprived of a f a i r t r i a l by reason of
misconduct on t h e p a r t of t h e jury.                This a l l e g a t i o n i s based
on f o u r a f f i d a v i t s by members of t h e j u r y and two a f f i d a v i t s
by b a i l i f f s i n charge of t h e jury.             Appellant contends when t h e
j u r y was returned i n t o c o u r t l a t e on t h e n i g h t of A p r i l 29, 1971,
i t was a t such an impasse t h a t t h a t i t was no longer capable of
a r r i v i n g a t a v e r d i c t from an i m p a r t i a l e v a l u a t i o n of t h e case.
He contends t h e members of t h e j u r y were disappointed because
they were n o t discharged, b u t were r e q u i r e d t o be put up f o r t h e
n i g h t ; and, i n t h e i r d e s i r e f o r discharge, they r e t u r n e d a v e r d i c t
of expediency when they w e r e returned t o t h e juryroom t h e following
morning.
        Appellant f u r t h e r contends t h e a f f i d a v i t s prove t h a t one
of t h e j u r o r s made statements on v o i r e d i r e examination, saying
then t h a t she would judge t h e c a s e f a i r l y ,           However, i n t h e jury-
room she made statements t h a t she could n o t judge i t f a i r l y , t h a t
she knew defendant very w e l l ; and, t h a t she should n o t be on t h e
jury.     Another a f f i d a v i t goes t o show t h a t one of t h e j u r o r s
was concerned about h e r young c h i l d a t home and d i d n o t want t o
have t o s t a y the n i g h t .      This j u r o r wanted t h e judge t o appoint
an a l t e r n a t e j u r o r i n h e r place.
        With t h e j u r o r s i n t h i s s t a t e of mind and apparently a t an
impasse, they r e t u r n e d i n t h e morning and gave a judgment f o r
defendant. Foos.           This i s t h e b a s i s f o r a p p e l l a n t ' s contention
t h a t he d i d n o t r e c e i v e a f a i r t r i a l , due t o misconduct on t h e
p a r t of t h e jury.
        A review of t h e f a c t s and case law l e a d s t h i s Court t o f i n d
t h a t , i n f a c t , a p p e l l a n t d i d r e c e i v e a f a i r t r i a l under t h e jury
system.       A f f i d a v i t s used by a p p e l l a n t a r e concerned s o l e l y with
matters inherent i n t h e jury process.                   It has been e s t a b l i s h e d
t h a t matters which a r e i n h e r e n t i n t h e jury process and n o t
concerned with m a t t e r s which r e l a t e t o o u t s i d e i n f l u e n c e upon t h e
j u r y , a r e n o t a b a s i s f o r e s t a b l i s h i n g a charge of jury misconduct.
However, an examination of t h e cases shows a c l e a r d i s t i n c t i o n
between those c a s e s and t h e p o s i t i o n of a p p e l l a n t here.           Cited
i n support of a p p e l l a n t ' s p o s i t i o n i s Putro v. Baker & Mannix
E l e c t r i c , 147 Mont. 139, 148, 410 P.2d 717, where t h i s Court
reversed a decision because of some misconduct on t h e p a r t of
t h e jury.     I n t h a t c a s e a newspaper a r t i c l e concerning t h e de-
fendant and h i s c r i m i n a l l i a b i l i t y , was c a r r i e d i n t o t h e juryroom
by a j u r o r during a c i v i l s u i t .       It was e s t a b l i s h e d t h a t a l l of
t h e j u r o r s had read t h e a r t i c l e before making a decision.                  The
Court reversed because of t h e "contact of t h e j u r o r s with o u t s i d e ,
p r e j u d i c i a l influences".
        Appellant a l s o c i t e s Gaff v. Kinzle, 148 Mont. 61,66,67, 417
P,2d 105.       I t i s t r u e t h e Court d i d r e v e r s e t h a t c a s e on misconduct
of a j u r y member, b u t again the s i t u a t i o n i s c l e a r l y n o t t h e
same a s here.        There, the n i g h t b e f o r e t h e c a s e went t o t h e jury
t h e foreman went t o t h e scene of t h e a c c i d e n t and i n v e s t i g a t e d
the area.       He then went home and prepared a map which he took
i n t o t h e jury room.       A new t r i a l was granted on t h e grounds t h a t
i t was misconduct f o r t h e foreman t o assume the r o l e of i n s p e c t o r

or investigator.
        From t h e c a s e s , our p o s i t i o n has been t h a t when t h e m i s -
conduct of a j u r o r i s based on some o u t s i d e i n f l u e n c e , then
j u r o r a f f i d a v i t s can be t h e b a s i s f o r overturning t h e judgment.
On t h e o t h e r hand, i n Goff, i t was s a i d when t h e r e i s nothing

t o demonstrate t h a t t h e r e was any o u t s i d e i n f l u e n c e on t h e j u r y
members :
        "'*   **     t h e theory of our system i s t h a t              the
        conclusions t o be reached i n a c a s e w i l l                 be
        induced only by evidence and argument i n                        open
        c o u r t , and n o t by any o u t s i d e i n f l u e n c e ,   whether
        of p r i v a t e t a l k o r p u b l i c print"'.
Here, i n t h e record we f i n d no evidence of any o u t s i d e i n f l u e n c e
upon the j u r o r s .
            -
        I n Goff, t h i s Court c i t e d Kincaid v. Wade, 196 Kan, 174,
410 P.2d 333, 337, and we adhere t o t h e p o s i t i o n of t h e Kansas
c o u r t when i t s t a t e d :
        "'The g e n e r a l r u l e i s , t h a t a f f i d a v i t s of j u r o r s a r e
        admissible t o e x p l a i n and uphold t h e i r v e r d i c t , b u t
        n o t t o impeach and overthrow i t . But t h i s general
        r u l e i s subject t o t h i s qualification: t h a t a f f i d a v i t s
        of j u r o r s may be r e c e i v e d , f o r t h e purpose of avoiding
        a v e r d i c t , t o show any matter occurring during a t r i a l ,
        o r i n t h e juryroom, which does n o t e s s e n t i a l l y i n h e r e
        i n t h e v e r d i c t i t s e l f , a s t h a t a j u r o r was improperly
        approached by a p a r t y , h i s agent o r a t t o r n e y , t h a t t h e
        v e r d i c t was determined by l o t ; but n o t t o show any matter
        which does e s s e n t i a l l y i n h e r e i n t h e v e r d i c t , a s t h a t
        t h e - j u r o r d i d not a s s e n t t o t h e v e r d i c t , t h a t he m i s -
        understood t h e i n s t r u c t i o n s o r t h e testimony, o r any
        o t h e r matter r e s t i n g alone i n t h e j u r o r ' s b r e a s t . I l l
        The use of t h e a f f i d a v i t s by a p p e l l a n t i s not proper on
these f a c t s ,    H e i s t r y i n g t o r e v e r s e a d e c i s i o n by j u r o r
a f f i d a v i t s , which were based on matters s o l e l y within t h e province
of t h e jury.
        Second, a p p e l l a n t a l l e g e s t h e v e r d i c t was c o n t r a r y t o t h e
law and evidence i n t h e c a s e , and should have been s e t a s i d e .
H e bases t h i s a l l e g a t i o n on a f f i d a v i t s of t h e foreman of t h e

jury,      The foreman r e c i t e d t h e j u r o r s voted eleven t o one t o
f i n d t h a t t h e r e was no negligence on t h e p a r t of t h e employer,
and i n h e r e n t i n t h i s statement i s t h e f a c t t h a t one of t h e
j u r o r s who u l t i m a t e l y supported t h e v e r d i c t f o r t h e employer,
took t h e p o s i t i o n t h a t t h e r e was no negligence on a p p e l l a n t ' s
part.      The foreman conducted a v o t e on t h e question of contribu-
t o r y negligence a l o n e , and e i g h t of t h e j u r o r s voted i n t h e
a f f i r m a t i v e on t h a t question, which enabled them t o r e t u r n a
v e r d i c t f o r t h e employer.       Of n e c e s s i t y , t h e s e e i g h t j u r o r s
had t o include t h e one j u r o r who had previously taken a p o s i t i o n
t h a t t h e r e was no negligence upon t h e p a r t of t h e employer.
Contributory negligence presupposes negligence upon t h e p a r t
of t h e o t h e r party.
        Appellant a l s o contends t h e v e r d i c t i s c o n t r a r y t o t h e
evidence.        He contends t h e change of t h e v o t e of j u r o r , Verne G.
P a r t r i d g e , came about by reason of t h e f a c t he was persuaded
t h a t t h e i n j u r e d workman should have used t h e rope t h a t was
a v a i l a b l e t o him.     Yet, t h e evidence e s t a b l i s h e s t h a t t h e rope
was n o t t h e r e a s a s a f e t y device, b u t used t o p u l l limbs away
from t h e house.            I n order f o r t h e j u r o r t o f i n d a s he d i d , he
would have had t o f i n d t h a t the workman was n o t a t r e s p a s s e r
a t t h e time he was i n j u r e d and, a s a matter of f a c t , f i n d he
was not furnished adequate equipment t o do t h e work.                                To a p p e l l a n t

i t i s c l e a r t h e j u r o r d i d not understand t h e evidence and t h i s
should be cause f o r a new t r i a l .
        The b a s i s of a p p e l l a n t ' s argument i s t h a t t h e j u r o r s d i d
n o t understand t h e law of negligence and c o n t r i b u t o r y negligence
and d i d n o t c l e a r l y understand t h e f a c t s ,           Therefore, a p p e l l a n t
d i d n o t have a f a i r t r i a l .      This i s s u e has been answered by
both t h e f e d e r a l c o u r t and t h i s Court.          The Ninth C i r c u i t Court
i n upholding t h e Montana Federal D i s t r i c t Court, i n Bateman v.
Donovan, 131 F.2d 759, 765, refused t o g r a n t a new t r i a l , s t a t i n g :
        "'*   **      t h e general r u l e i s , t h a t a f f i d a v i t s of
        j u r o r s w i l l not be received t o prove any mistake
        of t h e evidence o r misapprehension of t h e law, on
        t h e p a r t of t h e jury.       ***   The v e r d i c t , i n which
        they a l l concur, must be t h e b e s t evidence of t h e i r
        b e l i e f , both a s t o t h e f a c t and t h e law, and there-
         f o r e must be taken t o be conclusive                  **  *,"'
        This Court i n 1969, reaffirmed t h a t r u l e i n Johnson v.
Green, 153 Mont. 251, 255, 456 P.2d 290:
        "~ut    we go one s t e p f u r t h e r , The r u l e i n Montana
        i s t h a t a j u r y may n o t impeach i t s own v e r d i c t
        based on mistake of t h e evidence o r misapprehen-
        s i o n of the law. I I
        Appellant would have us overrule t h i s r u l e by h i s argument,
b u t nothing has been demonstrated by a p p e l l a n t t o show t h a t we
should.        I t i s our view t h a t i t w i l l remain t h e law of Montana,
and a p p e l l a n t ' s contention f a i l s .
        Third, a p p e l l a n t contends he was prejudiced by respondent's
improper appeal t o t h e jury.                 During t h e testimony of respondent,
he s t a t e d he had worked i n Laurel c o n s t r u c t i n g t h e Masonic Temple.
With r e s p e c t t o h i s work i n those e a r l y y e a r s , he s t a t e d :
        "1 don't know i f he i s r e l a t e d t o t h i s one o r n o t ,
        b u t I shouldn't t a l k about i t . Mr. Brevins, h i s
        f a t h e r , I and him got down t h e r e and worked t o g e t h e r
        i n the basement. I'
Respondent was r e f e r r i n g t o a member of t h e jury and was immediately
t o l d by h i s counsel t h a t he should not volunteer anything,                         At
t h i s p o i n t , counsel f o r a p p e l l a n t objected "to t h i s l i n e of
questioning f o r t h e reason t h a t we a r e not concerned with any
i s s u e i n t h i s case a s t o t h e working c a p a c i t y o r t h e work h i s t o r y
p a r t i c u l a r l y of t h i s witness1'.
        Appellant now contends t h a t t h i s nentioning by t h e respondent
of t h e r e l a t i o n s h i p between t h e j u r o r and someone he knew, served
t o arouse passion and p r e j u d i c e of the jury a g a i n s t a p p e l l a n t .
        W cannot agree with t h i s contention f o r t h e s e reasons:
         e
W do n o t b e l i e v e t h a t t h i s was an attempt by respondent t o
 e
influence the jury or prejudice the appellant.                        It was a s i t u a t i o n
of a 77 year old man, who d i d n o t c l e a r l y understand t h e language,
t r y i n g t o answer t h e questions a s b e s t he could,             He stated t h a t
he was n o t s u r e t h a t t h e member of t h e j u r y was even r e l a t e d t o
t h e man he had worked with many years ago.                    This t y p e d       remark,
of course, i s not proper i n a t r i a l , but a c l o s e examination
of t h e record does n o t show t h e remark i n any way prejudiced t h e
jury a g a i n s t a p p e l l a n t ,
        Additionally, even though we f i n d t h e remark d i d n o t arouse
p r e j u d i c e of t h e jury a g a i n s t a p p e l l a n t , i t appears from t h e
record t h a t counsel f o r a p p e l l a n t d i d n o t make proper o r timely
objection.        A t t h e t i m e t h e statement was made, counsel objected
on the grounds t h a t t h i s work h i s t o r y of respondent had no
relevance t o t h e i s s u e s a t hand,
       W have held t h a t i f a p a r t y f a i l s t o make a timely o b j e c t i o n
        e
t o t h e i r r e g u l a r i t y , then t h e i r r e g u l a r i t y i s waived,     Herren v.
Hawks, 139 Mont. 440, 365 P.2d 641.                       It i s t r u e an o b j e c t i o n was
made, but i t was not t h e proper o b j e c t i o n ,               I n Hayward v. Richard-
son Const.Co.,         136 Mont, 241, 249, 347 P.2d 475, t h i s Court s a i d :
        It
         A t some s t a g e of t h e c a s e , p l a i n t i f f must o b j e c t t o
       t h e improper matter going before t h e j u r y a s being
       c a l c u l a t e d t o e x c i t e p r e j u d i c e b e f o r e he i s i n a
       p o s i t i o n t o complain. I n o t h e r words, p l a i n t i f f must
       o b t a i n an adverse r u l i n g by t h e c o u r t on t h e p o i n t
       before he i s i n a p o s i t i o n t o contend t h a t t h e c o u r t
       committed some e r r o r , I 1
During t r i a l , counsel f o r a p p e l l a n t d i d n o t make t h e same
o b j e c t i o n he now b r i n g s f o r t h on appeal.         He d i d n o t put t h e

t r i a l c o u r t i n e r r o r by a timely and proper o b j e c t i o n a s t o
prejudice.         Counsel i s t h e r e f o r e barred from claiming e r r o r here.
       The f o u r t h and f i n a l i s s u e on appeal concerns i n s t r u c t i o n s
given by t h e t r i a l c o u r t .
       Appellant o f f e r e d i n s t r u c t i o n s numbered 18, 19, 20 and 21
covering t h e d u t i e s of a n employer t o h i s employees.                       I n place

of those o f f e r e d i n s t r u c t i o n s , t h e c o u r t gave i t s i n s t r u c t i o n
No, 13:
        It
         A duty i s imposed upon an employer t o f u r n i s h a
       reasonably s a f e p l a c e t o work t o h i s employees and
       t o f u r n i s h reasonably s a f e t o o l s and appliances
       f o r t h e purpose of performing t h e work, Reasonably
       s a f e t o o l s and appliances a r e such t o o l s and appliances
       a s a r e adapted t o and a r e reasonably s a f e f o r use f o r
       t h e p a r t i c u l a r purpose f o r which they a r e furnished.
       This i s a duty which t h e employer may n o t d e l e g a t e and
       thereby r e l i e v e himself from performance of t h e duty.
       The duty thus imposed i s what a reasonably prudent
       employer under t h e same o r s i m i l a r circumstances would
       have done. I t
        Appellant argues t h a t h i s four proposed i n s t r u c t i o n s should
have been given, and t h a t t h e f i n a l sentence of c o u r t ' s i n s t r u c t i o n
No. 13 would allow t h e j u r y t o decide i n favor of t h e employer
i f he were abiding by t h e general custom i n t h e community, even
though t h e standards do n o t meet t h e requirements of t h e law.
W do n o t agree t h a t a p p e l l a n t ' s o f f e r e d i n s t r u c t i o n s should
 e
have been given, o r t h a t t h e c o u r t ' s i n s t r u c t i o n was wrong,
        Appellant's o f f e r e d i n s t r u c t i o n No. 18 read:
        It
          N employer s h a l l maintain o r o p e r a t e , o r cause t o
           o
        be maintained o r operated, any p l a c e of employment
        t h a t i s n o t s a f e , n o r s h a l l s a i d employer f a i l o r
        n e g l e c t t o do anything reasonably necessary t o p r o t e c t
        t h e l i f e and s a f e t y of t h e employees, I I
This i n s t r u c t i o n i s based on s e c t i o n 41-1710, R.C.M.                1947.
W b e l i e v e t h e i n t e n t of t h e i n s t r u c t i o n , r e q u i r i n g t h a t an
 e
employer f u r n i s h a s a f e p l a c e t o work i s s a t i s f i e d i n t h e
c o u r t ' s i n s t r u c t i o n No. 13.
        Proposed i n s t r u c t i o n No. 19 read:
        "'Reasonably s a f e p l a c e t o work' means t h a t t h e
        p l a c e of employment has been made a s f r e e from
        danger t o t h e l i f e o r s a f e t y of t h e employee a s t h e
        n a t u r e of t h e employment w i l l reasonably permit. 1I
This i n s t r u c t i o n d i d not take i n t o account t h e f a c t t h a t t h e
standard of c a r e required of t h e respondent would be t h a t of
an o r d i n a r i l y prudent person under t h e same o r s i m i l a r c i r -
cumstances.
        Proposed i n s t r u c t i o n No. 20 read:
        " ' ~ e a s o n a b l y s a f e t o o l s and appliances' a r e such
        t o o l s and appliances a s a r e adapted t o and a r e
        reasonably s a f e f o r use f o r t h e p a r t i c u l a r purpose
        f o r which they a r e funished. I'
This i n s t r u c t i o n , b e s i d e s being covered by the c o u r t ' s i n s t r u c t i o n ,
was n o t a p p l i c a b l e because t h e r e was no evidence i n t h e record
t h a t a p p e l l a n t was furnished any t o o l s t h a t were n o t reasonably
safe,
        Proposed i n s t r u c t i o n No. 2 1 read:
        II
          The duty imposed upon an employer t o f u r n i s h and
        use s a f e t y devices and safeguards and adopt and use
        methods and processes reasonably adequate t o render
        t h e p l a c e of employment s a f e , and t o do every o t h e r
        t h i n g reasonably necessary t o p r o t e c t t h e l i f e and
        s a f e t y of employees, i s a duty which t h e employer may
        not d e l e g a t e t o someone e l s e and thereby exonerates
        himself from non performance of t h e duty, o r i n o t h e r
        words the law imposes upon t h e employer t h e a b s o l u t e
        r e s p o n s i b i l i t y t o perform t h e duty s o imposed."
This instruction would impose absolute responsibility on the
respondent which disregarded the reasonably prudent person rule.
This instruction along with the other three representing the
essential ideas that appellant wanted expressed, were given to
the jury in the court's instruction No. 13. We do not find any
error on the part of the trial court in not granting appellant's
proposed instructions 18, 19, 20 and 21.
    Appellant argues that court's instruction No. 13 would
allow the jury to find that if respondent was following the
general custom in the community there would be no liability.
First, there was no evidence concerning any general custom in
the community, Second the instruction makes absolutely no
reference to custom or usage in any respect. We cannot agree with
appellent on this issue.
    Appellant contends the district court erred in giving its
instruction No. 14:
    "You are instructed that if you find that the plaintiff
    was working on the tree involved in this case without
    the express or implied consent of the defendant at the
    time this accident occurred, the plaintiff was in law a
    trespasser. The only duty owed by the defendant to him
    under such circumstances was to refrain from willful
    or wanton acts of misconduct. I f
Appellant submits that considering the evidence as a whole,
as a matter of law, the court should have determined that the
status of the injured workman was not that of a trespasser.
This instruction allowed the jury to consider whether or not
appellant was a trespasser at the time of his injury, and a
fair evaluation of the facts would justify that this instruction
should not have been given.
     The rule is established in Montana that whenever the facts
are in dispute, as here, as to whether or not appellant was a
trespasser, they should be resolved by the jury, This Court
stated in Maxwell v. Maxwell, 140 Mont. 59, 61, 367 P.2d 308:
     "The rule is well established that a question will
     not be taken from the jury, as the trier of facts,
     where there is conflicting evidence or where more than
     one conclusion can be drawn from the evidence,t I
           From t h e record, i t c e r t a i n l y appears t h a t t h e r e was a very
    genuine question of f a c t concerning t h e s t a t u s of a p p e l l a n t on
    t h e morning of t h e accident.             Respondent t e s t i f i e d a p p e l l a n t was
    n o t h i r e d , and was not t o be doing any work.                 Appellant t e s t i f i e d
    he was s t i l l working f o r respondent and was being t o l d what t o do.
    This i s c e r t a i n l y a question f o r t h e jury and the c o u r t d i d not
    e r r i n leaving t h e determination of t h e s t a t u s of a p p e l l a n t t o
    t h e jury.
          A c a r e f u l review of t h e i s s u e s r a i s e d by a p p e l l a n t i n d i c a t e
    t h e t r i a l c o u r t d i d n o t commit e r r o r during t h e t r i a l o r i n
    denying a motion f o r a new t r i a l ,
          Accordingly, t h e v e r d i c t of t h e t r i a l c o u r t i s affirmed.




/        Chief J u s t i c e




         Associate J u s t i c e s .
