                                 No. 8 8 - 7 7
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1988




RAMONA MEDDERS and RICHARD MEDDERS,
                 Plaintiffs and Appellants,
         -vs-
ARNOLD JOYES ,
                 Defendant and Respondent.




APPEAL FROM:     District Court of the Fifteenth Judicial District,
                 In and for the County of Sheridan,
                 The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Kevin T. Sweeney, Sweeney & Healow, Billings, Montana
                 David Cybulski, Plentywood, Montana
         For Respondent:
                 Habedank, Cumming   &   Best; ,3
                                                -               Sidney, Montana
                                                 Robrrr   .J   -SnjGCiC


                                     Submitted on Briefs:       July 14, 1 9 8 8


Filed:   KIG 18'
           9  98
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

      Ramona and Richard Medders (the Medders) appeal a
Sheridan County District Court grant of summary judgment to
Arnold Joyes (Joyes). We affirm.
      On May 27, 1984, vehicles driven by Ramona Medders and
Arnold Joyes collided on a well graveled and recently graded
county road in Sheridan County, Montana.         Medders was
traveling north and Joyes was traveling south on the county
road. The head-on collision occurred at the crest of a hill
at approximately 3:00 p.m. in good weather. Sheridan County
Deputy Sheriff Brost (Brost) arrived at the accident scene at
approximately 4:00 p.m. to find Ramona Medders and her
eleven-year-old daughter, Tracie, trapped in their 1979
Chrysler Cordoba. Brost also found Joyes at the wheel of his
1984 Ford Bronco I1 and Arnold's wife, Iris Joyes,
unconscious in the front passenger seat. All four accident
victims were subsequently transported by ambulance to a
Plentywood hospital where Iris Joyes later died of injuries
she sustained in the accident.
      Brost conducted an examination of the accident scene
and noted his findings on a State of Montana accident
investigation report form. Sheriff Holt (Holt) photographed
the accident scene before the vehicles were moved.      Brost
determined that the gravel road was twenty-two feet wide at
the point of impact, and that the eastern edge of the skid
mark left by the right rear tire of the Medders' vehicle was
twelve feet from the eastern edge of the road. The eastern
most edge of the skid mark made by the left rear tire of the
Joyes' vehicle was twelve feet nine inches from the eastern
edge of the road.    The Medders' vehicle left a skid mark
twenty-nine feet long and the Joyes' vehicle left a
twenty-one foot five inch skid mark. The acccident occurred
just to the north side of the crest of a hill with the ~oyes'
vehicle nearing the crest and the Medders' vehicle on the
downhill side.
      Sheriff Holt's photographs portray the two vehicles
where they settled after recoil from the force of the impact.
The rear end of both vehicles shifted to the east immediately
after impact.     Brost determined that the two vehicles
collided primarily on the left front halves and noted the
position of the two vehicles at impact on his accident
investigation report and deposition diagrams.         Officer
Brost's calculations and Sheriff Holt's photographs place the
Medders' vehicle in the lane of traffic properly occupied by
the Joyes' vehicle immediately before impact.
      On March 5, 1986, the Medders filed a complaint
alleging that Arnold Joyes operated his vehicle in a
negligent manner thereby causing the accident in question.
Joyes moved for summary judgment on September 10, 1987. The
District Court granted summary judgment to Joyes on October
15, 1987, and issued the following findings:
           1. That drivers of motor vehicles in
           the State of Montana have an obligation,
           pursuant to Section 61-8-321, MCA, to
           drive upon the right half of the
           roadway,     with    three     statutory
           exceptions, none of which apply to the
           case at bar.
          2. The physical facts of the subject
          accident,    which   have   not    been
          controverted or rebutted by Plaintiffs,
          show the following:
                 (a) That prior to and at the time
          of   the collision, Defendant Joyes'
          vehicle was being driven in the right
          half of the subject county road pursuant
          to Section 61-8-321, MCA;
                (b) That prior to and at the time
          of the collision, Plaintiff Ramona
          Medders' vehicle was being driven in a
          northerly direction within Defendant
          Joyes' southbound lane of traffic.
          3. That there has been no credible or
          admissible evidence indicating excessive
          speed on the part of either Plaintiff
          Ramona Medders or Defendant Joyes.
          4. That there has been no substantial
          evidence offered by the Plaintiffs to
          raise a genuine issue of fact that the
          accident would not have occurred but for
          the fact that Plaintiff Ramona Medders
          was driving her vehicle outside the
          right half of the roadway in violation
          of Section 61-8-321, MCA.
          5. The materials offered by Plaintiffs
          in opposition to Defendant's motion for
          summary judgment are not material or of
          a substantial nature, but rather [are]
          fanciful, frivolous, gauzy, or merely
          suspicious.
The Medders appeal the District Court's grant of summary
judgment to Joyes and we identify the following issue for
review:    Do genuine issues of material fact exist which
preclude summary judgment?
       The Medders assert that there are several genuine
issues of material fact in this case. Summary judgment is
improper where genuine issues of material fact exist. Rule
56 (c), M.R.Civ.P.  The Medders' burden on this appeal is to
establish the existence of a genuine issue of material fact.
Eitel v. Ryan (Mont. 1988), 751 P.2d 682, 684, 4 5 St-Rep.
      The Medders first claim that there is a factual dispute
as to the location of the two vehicles before and after
impact. On the basis of his accident investigation, Officer
Brost placed the Medders' vehicle primarily in the left lane
of traffic in violation of 5 61-8-321, MCA.     In support of
his motion for summary judgment, Joyes also submitted an
affidavit   from   A.D.    Pipkin   (Pipkin),   an   accident
investigation expert, who on June 5, 1984, investigated the
scene of this accident.      Pipkin studied Brost' s accident
investigation report, surveyed the accident site, examined
the damaged vehicles, and also concluded that Ramona Medders
was on the wrong side of the road at the time of the
collision.
      In opposition to Joyes' motion for summary judgment,
the Medders submitted an affidavit from an ambulance
attendant, Paula Tinsley (Tinsley), who attended to Ramona
Medders at the accident scene.     In her September 23, 1987
affidavit, Tinsley recalled her two and one-half year old
perception that both vehicles were near the middle of the
road, that the Joynes' vehicle was substantially in the wrong
lane of traffic, and that the Medders' vehicle was
substantially in the correct lane of traffic.         Tinsley
arrived sometime after the accident and her recollections are
of the shifted vehicle positions after impact and recoil.
Unlike Brost and Pipkin, Tinsley did not investigate the
accident scene or make any measurements to determine the
location of the vehicles immediately prior to and at the time
of impact. The Medders also allege that Holt's photographs
and the coroner's report concerning Mrs. Joyes' death
conflict with Brost's measurements and conclusions.       The
Medders did not submit any independent accident investigation
reports or other expert evidence regarding the circumstances
of the accident to support their allegations.
      The Medders also attempt to justify Ramona Medders'
failure to drive on the right side of the road by contending
that the county road in question contained deep ruts which
forced traffic to drive near the center of the road. Holt's
photographs and Brost's deposition, on the other hand,
evidence a well graded and graveled two-lane county road with
no ruts at the location of the accident.
      Initially we note that the Medders' claim that a
negligence case such as here presented is not susceptible to
adjudication by summary judgment.    Brown v. Merrill Lynch,
Pierce, Fenner & Smith, Inc. (1982), 197 Mont. 1, 10, 640
P.2d 453, 458. Joyes cites to Brohman v. State of Montana
(Mont. 1988), 749 P.2d 67, 45 St.Rep. 139, for the
proposition that this Court will affirm a grant of summary
judgment in a negligence case where "it is clear that a party
has breached a duty and caused an accident." Brohman, 749
P.2d at 69 (citing Birky v. Johnson (Mont. 1986), 716 P.2d
198, 43 St.Rep. 488). We find the reasoning in Brohman to be
applicable to the instant case.
      The District Court concluded that the Medders' evidence
in opposition to the motion for summary judgment was "not
material or of a substantial nature . .     .  I
                                               '   We agree.
Although the Medders dispute the fact that Ramona Medders was
traveling in the wrong lane of traffic, Tinsley's affidavit
and conclusory allegations as to what the photographs portray
are not sufficient to give rise to a genuine issue of
material fact in this case.
      The Medders have not presented any evidence to support
the existence of a genuine issue of material fact regarding
the location of the vehicles at the time of the collision.
Ryan, 751 P.2d at 684. Where reasonable minds cannot differ
as to the cause of an accident, questions of fact may be
determined as a matter of law.     Brohman, 749 P.2d at 70,
(citing Hartley v. State (Wash. 1985), 698 P.2d 77, 81). The
overwhelming evidence in this case supports the District
Court's conclusion that Ramona Medders' negligence caused the
accident and the District Court properly granted summary
judgment.
      The Medders next contend that there is a genuine issue
of material fact as to whether Joyes was speeding at the time
of the accident.    The facts concerning the speed of the
Joyes' vehicle are not in dispute. Joyes admits that he was
driving approximately forty miles an hour.     The District
Court concluded that the Medders had failed to present any
credible or admissible evidence indicating that Joyes was
speeding. The only evidence presented by the Medders with
regard to the appropriate speed for this particular road was
Ramona Medders' statement that she felt that eighteen to
twenty miles an hour was all she could handle in her car. In
a written statement dated June 13, 1984, Ramona Medders
claimed to have been traveling approximatley thirty-five
miles an hour immediately before the accident.         After
instigating this litigation, Ramona Medders changed her
testimony to reflect that she was traveling eighteen to
twenty miles an hour.    On the other hand, Pipkin, in his
affidavit, stated that forty miles an hour was not excessive
under the road and driving conditions present at the time of
the accident.   In addition, Richard Medders stated in his
deposition that he had traveled the same county road on
several occassions at speeds of thirty-five to fifty miles an
hour.
      The District Court in effect made a conclusion of law
based on the undisputed facts in its determination that Joyes
was not speeding. Such questions of law are properly decided
by the District Court.    Summary Judgment Under the Federal
Rules: Defining Genuine Issues of Material Fact (1982), 99
F.R.D. 465, 487. The Medders have presented no evidence to
support their allegation that Joyes was driving too fast. On
the contrary, the record of this case indicates that Mr.
Joyes was driving in a reasonable and prudent manner when his
vehicle was struck by Ramona Medders' vehicle which was being
driven in the wrong lane of traffic.
      Section 61-8-321, MCA, provides that all vehicles shall
be driven on the right side of the roadway with certain
exceptions not applicable to this case.   The District Court
concluded that Ramona Medders violated this statute and that
the accident would not have occurred but for her negligence
in driving on the wrong side of the roadway. The Medders
assert that the District Court incorrectly held this
violation of a statute to be negligence per se and that the
lower court should instead have determined whether Ramona
Medders and Arnold Joyes drove in a reasonable and prudent
manner.
     We find nothing in the order of the District Court to
suggest that it      found Ramona Medders' violation of
S 61-8-321, MCA, to be negligence per se. The District Court
reviewed the evidence and concluded that Ramona Medders was
the only negligent party.    We have reviewed the pleadings,
affidavits, answers to interrogatories, and the remainder of
the record in this case and conclude that summary judgment
was properly granted. Eitel, 751 P.2d at 684.
      Joyes requests that he be awarded attorney's fees and
costs of this appeal pursuant to Rule 32, M.R.App.P.       We
decline to award attorney's fees in this case because we find
that appellants' arguments, although not persuasive, were
within the bounds of reasonable appellate argument. LaForest
v. Texaco, Inc. (1978), 179 Mont. 42, 585 P.2d 1318. Costs
of this appeal, other than attorney's fees, are to be awarded
to Joyes as the prevailing party pursuant to S 25-10-104(2),
MCA .
        Affirmed.



                                                                \



We concur:          /'
