                            No.    89-383

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1990



JOAN M. GRIFFITH, as Guardian of the
minor children of CHARLES PAUL GRIFFITH;
and JOAN M. GRIFFITH, individually,
               Plaintiffs and Respondents,


MONTANA POWER COMPANY, a corporation,
               Defendant and Appellant.



APPEAL FROM:   District Court of the Twentieth Judicial District,
               In and for the County of Sanders,
               The Honorable Ed McLean Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Richard Ranney; Shelton C. Williams; Williams Law
               Firm; Missoula, Montana
          For Respondent:
               Kenneth H. Grenfell; McChesney, Grenfell        &   Ogg,
               Missoula, Montana
               Ben Everett; night, Dahood, McLean         &   Everett;
               Anaconda, Montana

                                  Submitted on Briefs:   May 16, 1990
                                             Decided:    June 26, 1990
Filed:                                   0




                             # Clerk
Justice Fred J. Weber delivered the opinion of the Court.

     After trial in the District Court of the Twentieth Judicial
District, Sanders County, the jury returned a verdict in favor of
defendant, Montana Power Company (MPC).       Plaintiffs moved the
District Court for a new trial based on irregularities in the
proceedings which prevented a fair trial and an error in law at
the trial.   The District Court granted plaintiffs a new trial and
defendants appeal.   We affirm.
     The sole issue for our consideration is whether the District
Court erred in granting plaintiffs a new trial?
     certain agreed facts were read as true to the jury prior to
trial.   They may be summarized as follows: MPC entered into a
contract with Williams Construction Company, Inc. (Williams), to
replace a pole and certain power distribution lines owned by MPC
near a bridge crossing the Clark Fork River approximately 4 miles
east of Paradise, Montana.   Charles Paul Griffith (Mr. Griffith),
was employed by Williams as a lineman on the Clark Fork River
crossing project.    The crews were working to string new lines
across the river.    While Mr. Griffith was working with other
members of the crew to raise a new distribution line, the line
became hung up in the river.      Mr. Griffith was working from the
surface of the bridge.   Tim Smith, an MPC employee, was assisting
the Williams crew by driving a pickup truck which was used to pull
the new lines into position.      Richard Hewitt, the Williams crew
foreman, was located on the pole on the west side of the river.
A1 Whitaker, another Williams lineman, was on the pole on the east
side of the river crossing. Whitaker attached a tag line connected
to a brass hook to the conductor which was caught in the river, and
Mr. Griffith then took the tag line to the bridge and used it to
pull the conductor free from the obstruction in the river. At some
point   the    conductor contacted    an     energized   portion   of   the
distribution     line,   became   energized,    and   Mr.   Griffith    was
electrocuted. He fell from the bridge, and died of his injuries.
     The evidence established that the tag line which Mr. Griffith
was using to free the conductor was nonconducting polypropylene,
and was not the path through which electricity entered his body.
None of the other crew members were eye witnesses to the manner of
electrocution.     Mr. Griffith had electrical burn marks on both
hands, and there were apparently correspondending burn marks on the
conductor. In addition, Mr. Griffith had burn marks on both knees.
MPC contends that the physical facts show that after the new
conductor was freed by means of the tag line, Mr. Griffith pulled
the conductor towards himself, and after it had become energized
on coming into contact with the 7200 volt phase, he placed his
hands on it.
     Plaintiff, ioan M. Griffith, acting individually, and as
guardian of her three minor children, brought this action against
MPC based on alleged negligence.        Plaintiffs contended that MPC
owed Mr. Griffith and the Williams line crew a duty to provide a
safe place to work pursuant to       .fj§   50-71-201, 202 and 203, MCA
(1985).   They contended such duty was breached when MPC failed to
exercise reas0nabl.e care and to take proper precautions surrounding
the work on the project.        Plaintiffs also maintained that MPC
retained substantial control and right to control Williams on this
project   and    that   MPC   negligently   exercised   that   control.
Plaintiffs further contended that such duty was nondelegable and
therefore any negligence of Williams was to be imputed to MPC.
They maintain that MPC knew or should have known that the kind of
work the Williams crew was doing created a I1peculiar riskffof
physical harm to individuals unless special precautions were taken.
Plaintiffs sought damages for loss of society, comfort, consortium,
contribution to support, education and training, and emotional
distress as well as other expenses.
     MPC denied any negligence on its part.        It contended that
Williams, acting as an independent contractor, retained control of
its employees.     In MPCfs proposed pre-trial order, it summarized
its contentions:
     [tlhe sole cause of Mr. Griffithfs tragic accident was
     his inexplicable conduct in pulling the conductor to him,
     placing his hands on it, while his knees were against the
     steel bridge rail, and continuing to pull the wire to the
     point that it contacted the energized south phase. Mr.
     Griffithfs conduct violated the work rules agreed upon
     by the Williams crew, and violated various OSHA and NESC
     rules and requirements, all of which were well known to
     Mr. Griffith as a result of his education, training and
     experience as a journeyman lineman. The conduct of Mr.
     Griffith was unforeseeable to his foreman Dick Hewitt,
     to Williams Construction Co., Inc., and to the Montana
     Power Company, and it was the sole cause of his death.

MPC further contended that the Occupational Safety and Health
Review Committee conducted a detailed investigation and concluded
that there were no OSHA violations and that the sole cause of the
incident was the flunforeseeable
                               and idiosyncratic behavior1'of Mr.
Griffith. MPC concluded that Mr. Griffith's own negligence barred
or reduced any recovery for damages.
     Prior to trial plaintiffs moved the District Court to prohibit
any mention at trial of the OSHA Administrative Law Judge's ( A W )
findings of fact, conclusions of law and judgment, as well as
Department of Labor charges against Williams, and the absence of
OSHA and Montana Public Service Commission's citations to MPC.
     MPC   contended that the Am's       findings, conclusions and
judgment should be admitted as an exception to the hearsay rule
under   Rule   803(24),   M.R.Evid.    The   District   Court    granted
plaintiffs' motion to prohibit any reference to the A m ' s findings,
conclusions and judgment, stating:
     It is the opinion of this Court that Plaintiffs' motion
     to prohibit mention of the OSHA A m ' s Findings of Fact,
     Conclusions of Law and the absence of MPSC and OSHA
     citations to Montana Power Company should be granted.
     However, if Plaintiffs call experts to testify as to the
     violation of certain OSHA standards. the Court will allow
     the introduction of evidence of the OSHA hearinus.
     (Emphasis added.)
     During    plaintiffs   case-in-chief, their    expert      was   not
questioned and did not testify about OSHA.        However, on cross-
examination, defense counsel asked the expert whether there were
any violations of the OSHA standards. Plaintiffs objected to such
questioning, but were overruled.      MPC questioned the plaintiffs'
expert at length with regard to the OSHA standards.
     During trial MPC refered to OSHA a number of times.       MPC also
submitted a number of instructions with regard to OSHA regulations.
At the conclusion of the trial the jury returned a verdict for MPC.
Plaintiffs then moved for a new trial.      The motion was granted and
MPC appeals.
     Did the District Court err in granting plaintiffs a new trial?
     The District Court has sound discretion to grant a new trial
and it will not be overturned absent a showing of manifest abuse
of discretion.    Stanhope v. Lawrence (Mont. 1989), 787 P.2d 1226,
47 St.Rep. 438.

     On   appeal, MPC    contends that the jury could not         have
understood this case without reference to OSHA since OSHA provides
the standard of care the linemen should use in this case.             MPC
maintains that since violations of safety standards are evidence
of negligence, then compliance with the safety standard is evidence
of no negligence.     It contends the District Court did not err in
admitting the OSHA evidence or in subsequently instructing the jury
on OSHA standards.
     Plaintiffs    contend   that   under   the   court's   ruling,    as
reemphasized a number of times in the course of conferences between
counsel and the court, plaintiffsv conduct was severely limited.
In substance plaintiffs argue they were prohibited from questioning
their experts on possible violations of OSHA in the course of
direct examination.     Plaintiffs' expert, on direct examination,
testified only to violations of the National Electric Safety Code
(NESC)  .   It was only on cross-examination that he made any
reference to OSHA.   Plaintiffs contend this effectively eliminated
any   opportunity on their part      to present   evidence of OSHA
violations; while effectively allowing MPC to present evidence of
OSHA compliance.
      At the request of MPC the District Court gave a number of
instructions on OSHA.     Plaintiffs contend that the instructions
together with the OSHA evidence allowed as to MPC, and the
limitation upon evidence as to the plaintiffs, prejudiced their
case. We agree with the District Courtfsconclusion that there was
such prejudice.
      As mentioned, the District Court effectively prohibited
plaintiffs1 examination of their own expert on OSHA, and yet
allowed MPC to cross examine the same expert on OSHA.              The
instructions given by the court included Instruction #18 which
read:
           Plaintiffsf Decedent, Charles Paul Griffith, was
      bound to comply with applicable provisions as established
      by the Occupational Safety & Health Administration (OSHA)
      and applicable provisions of the NESC. If you were to
      find that he violated an applicable provision of the OSHA
      standards, you would consider that to be evidence of his
      negligence. If you were to find that he violated an
      applicable provision of the NESC, you would find that
      that constitutes negligence as a matter of law. Such
      negligence is of no consequence unless it acted as a
      cause of the accident in question.
Instructions #29 and #30 instructed the jury on specific OSHA
provisions.   ~nstruction#32 read:
           The requirements of the Occupational Safety 61 Health
      Act apply to Williams Construction Co., Inc. and its
     employees, including Plaintiffs' Decedent, Charles Paul
     Griffith. The OSHA code does not apply to the Montana
     Power Company in connection with the activities involved
     in the present action unless you find Montana Power
     vicariously liable for the Williams Construction Co.,
     Inc. if any. [sic]
In the order and opinion granting plaintiffs' motion for a new
trial the District Court stated its reasons as follows:
     It is the Court's opinion that the Court committed error
     with respect to the OSHA evidence.        This Court had
     previously granted the Motion in Limine prohibiting
     mention of the OSHA A m ' s Findings of Fact, Conclusions
     of Law and Judgment. Plaintiffs' counsel was advised
     that if he introduced evidence of OSHA violations,
     Defendant would then be allowed to introduce evidence of
     the OSHA findings. When Plaintiffs' expert was called
     to testify, no questions asked of him were directed to
     OSHA on dikect examination.          However, on cross-
     examination, Defense Counsel asked the witness whether
     there were any violations of the OSHA standards.
     Plaintiffs' counsel objected to this line of questioning,
     arguing that it should not be allowed given the Court's
     ruling on the Motion in Limine. The Court overruled the
     objection and later issued instructions as to compliance
     with OSHA regulations.
     The court later stated that it had committed error in giving
any instructions with regard to OSHA.   We agree that the District
Court properly granted a new trial and conclude there was no abuse
of discretion.     The effect of the court's rulings, including
instructions, was to deny the plaintiffs an opportunity to present
any evidence of OSHA violations by MPC or by Williams for which MPC
could be held vicariously liable.   On the other hand, the effect
was to allow MPC to present its theory of compliance with OSHA
together with extensive reference to OSHA regulations, to their
obvious benefit.    We hold that the District Court did not err in
granting plaintiffs a new trial.
     Without ruling upon the same, we make the following comments.
Under Runkle v. Burlington Northern (1980), 188 Mont. 286, 303-4,
613 P.2d   982, 992-93,    and similar cases, it would appear that
evidence of the OSHA regulations and direct evidence of the breach
of   the   same   or   compliance with   the   regulations, would   be
admissible.
     Affirmed.



We Concur:
                  A
      .
       'chief Justice




           Justices



 Justice Diane G. Barz did not participate.
