                                    No. 80-312
                      IN THE SUPREMF: COURT OF THE STATE OF MONTANA
                                       1981


DAVID R. WAATTI,
                             Plaintiff and Appellant,
     VS   .
JACK M. DOLLAN,
                            Defendant and Respondent.


Appeal from:        District Court of the Eleventh Judicial District,
                    In and for the County of Flathead.
                    Honorable James Salansky, Judge presiding.
Counsel of Record:
    For Appellant:
              Hash, Jellison, O'Brien and Bartlett, Kalispell, Montana
    For Respondent:
              Murphy, Robinson, Heckathorn    &   Phillips, Kalispell,
                Montana


                                 Submitted on briefs:    May 15, 1981
                                              Decided:    July 9, 1981
Filed:    ,fUL 9   - 1981

                                    Clerk
Mr. Chief Justice Frank I. Haswell delivering the Opinion of
the Court.

     In an action by plaintiff for damages resulting from
personal injuries suffered when thrown from a horse, the jury
returned a verdict for defendant and judgment was entered
thereon.   Following denial of his post-trial motions, plaintiff
appeals from the judgment and denial of his motion for a new
trial.
     The accident in question occurred about 1:00 p.m. on May
31, 1975, on the Hubbard Dam road southwest of Kalispell,
Montana.   Plaintiff David Waatti was helping herd about 200
head of cattle from a ranch near Lonepine to a summer pasture
near Bitterroot Lake.    The cattle were being driven in a northerly
direction by several riders including Paul Heidegger, the owner
of the cattle; Willard Hallstrom; and plaintiff Waatti.     The
accident occurred on a stretch of road bounded on the east by
a high 45-degree bank abutting the roadway and not separated
from it by a ditch.     The road at the accident scene was wide
enough for two cars to pass.
     Defendant Jack Dollan was driving his 1973 station wagon
northerly in the same direction as the herd and approaching it
from the rear.   Heidegger and Hallstrom were working the back
of the herd and plaintiff the front.    Heidegger led Dollan's
automobile through the herd until they reached a point where
only 10 or 12 cows were in front of them.     At this point,
Heidegger returned to the rear of the herd.
     Plaintiff was aware that defendant's automobile was
traveling through the herd and started working his horse over
to the east side of the road.    Defendant testified that he was
traveling in low gear at a speed of 3 or 4 miles an hour trying
to get around a cow that was zigzagging back and forth in front
of him.    The right front of the car struck the horse plaintiff
was riding causing it to lunge onto the steep bank abutting
the roadway.    The horse was having difficulty getting its footing,
made another lunge and plaintiff wasthrown backwards off the
horse striking either the ground or defendant's automobile.
Plaintiff testified that at the time of impact between the car
and his horse, he was right next to the bank where it met the
roadway.
     After throwing plaintiff off, the horse scaled the bank,
returned to the road and proceeded southerly through the herd.
As a result of the accident, plaintiff received a broken
shoulder, cracked ribs and other injuries.
     Plaintiff sued defendant for damages resulting from his
injuries, alleging negligence on the part of defendant Dollan.
Defendant denied negligence and proximate cause and affirmatively
alleged contributory negligence by plaintiff Waatti.    The
accident occurred prior to enactment of Montana's comparative
negligence statute.
     The case was tried to a jury on March 17 to 19, 1980, in
the District Court of Flathead County.    The jury returned a
verdict for defendant.    In addition to finding a verdict in
favor of defendant and against plaintiff on the typed verdict
form, the jury included the following statement in the handwriting
of and signed by the jury foreman on the bottom of the typewritten
verdict form:
     "We, the Jury in the above-entitled action, find
     in favor of the defendant as we find contributory
     negligence on the part of the plaintiff."
     Judgment was entered on the jury verdict.    Plaintiff moved
for judgment notwithstanding the verdict on the issue of
liability and a new trial on the issue of damages, or alternatively
for a new trial on all issues.    The basis of the motions was
the giving of a jury instruction on contributory negligence
and the insufficiency of the evidence to support the verdict.
Following the District Court's denial of his motions, plaintiff
appeals from the judgment and denial of his motions for a new
trial.
     Plaintiff and appellant assigns the following issues for
review on appeal:
     1.   Sufficiency of the evidence to support the verdict.
     2.   Giving defendant's proposed instruction no. 3.
     3.   Refusal to give plaintiff's proposed instruction
nos. 6, 9, and 11.
     Appellant's principal contention is that there is no
evidence to support the jury verdict finding contributory
negligence by defendant.   He argues that the testimony
conclusively establishes an absence of contributory negligence
in that plaintiff moved his horse to the far right of the
roadway when he observed defendant's vehicle approaching; that
he could not move his horse farther because of the steep bank
abutting the road; that defendant's car was two to three feet
from the bank when its right front bumper struck plaintiff's
horse; and that the roadway was sufficiently wide to permit two
cars to pass.
     We disagree.    A review of the evidence supports at the

least an inference that plaintiff and appellant was contributorily
negligent in failing to keep his horse under proper control
and in failing to assist defendant's car through the remainder
of the herd after Heidegger's assistance was discontinued.      The
testimony of Heidegger and plaintiff himself establish these
permissible inferences creating a factual issue on contributory
negligence which the jury resolved in favor of the defendant by
its verdict.   We hold the evidence sufficient to support the
verdict and the judgment entered thereon.
     Appellant further contends it was reversible error to
give defendant's proposed instruction no. 3, reading as follows:
     "Contributory negligence is negligence on the
     part of a claimant which contributed as a proxi-
     mate cause to his injury. (A person who is
     contributorily negligent cannot recover for any
     injury or damage sustained by him.)"
     This instruction is MJIG instruction no. 4 verbatim.     No
objections were made to the form or language of the instruction.
The ground of the objection was "that there is no credible
evidence in the record whatsoever indicating any negligence
whatever on the part of the plaintiff Dave ~aatki the manage-
                                                 in
ment of his horse."    On settlement of instructions, the district
judge indicated he was giving the instruction because he thought
"there is still a jury question here."     We agree there was a
jury question under the evidence in the case for the reasons
heretofore stated.    Accordingly, there was no error in giving
this instruction on contributory negligence and its effect.
     Plaintiff and appellant assigns error in the District
Court's failure to give his proposed instruction     nos. 6, 9,
and 11.   These instructions all relate to the issue of defendant's
negligence.    Since the jury based its verdi.ct on plaintiff's
contributory negligence, the failure to give these instructions
could not have affected the verdict.     Assuming, arguendo, that
failure to give these instructions was error, the error was
harmless in any event as it could not prejudice any substantial
right of plaintiff and appellant.    Rule 61, M.R.Civ.P.;   Payne
v. Sorenson (1979), - Mont .        , 599 P.2d 362, 36 St.Rep. 1610.
     Affirmed.


                                          Chief Justice
We Concur:
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