Shannon v. Hulett

Opinion

No. 8 3 - 1 0 1

IN THE SUPREME COIJRT OF THE STATE OF MONTANA

19 8 3

CHARLES SHANNON,

P l a i n t i f f and R e s p o n d e n t ,

DONALD E . HULETT, EAST VALLEY TRUCKING and STEVE LUKSHA,

D e f e n d a n t s and A p p e l l a n t s

Appeal from: D i s t r i c t Court o f t h e F i f t h J u d i c i a l D i s t r i c t I n and F o r t h e County o f J e f f e r s o n H o n o r a b l e Frank D&, Judge p r e s i d i n g . BL+==?rJ t

Counsel o f R e c o r d :

For A p p e l l a n t :

C o r e t t e , S m i t h , Polhman C A l l e n , B u t t e , Montana , R o b e r t M. C a r l s o n and R , D . C o r e t t e , Argued

For Respondent :

J o h n L . P e t e r s o n , B u t t e , Montana J o h n L . P e t e r s o n , Argued

Submitted: June 6 , 1 9 8 3

Decided: August 1 6 , 1983 M r . C h i e f J u s t i c e P r a n k 1. H a s w e l l d e l i v e r e d t h e 3 p i n i o n of t h e Court.

Donald H u l e t t , d / b / a E a s t V a l l e y T r u c k i n g , and S t e v e n

Luksha appeal the Jefferson County District Court order

g r a n t i n g C h a r l e s Shannon a new t r i a l . W e reverse.

On S e p t e m b e r 22, 1979, Shannon was d r i v i n g h i s 1 9 6 6

C h e v r o l e t n o r t n b o u n d on 1-15 a t a b o u t 35 m.p.h. L u k s h a was

d r i v i n g a 1972 Kenworth t r u c k w i t h a p u p - t r a i l e r , owned by

h i s employer H u l e t t , s o u t h b o u n d o n 1-15 a p p r o x i m a t e l y 4 0 t o

45 n.p.h. Both d r i v e r s were on a t w o - l a n e p o r t i o n of 1-15

just south of Boulder, which i n many places was i n poor

condition.

The r e c o r d i n d i c a t e s t h a t b e c a u s e o f t h e rough shoul-

d e r , Luksha was v e r y c l o s e t o t h e c e n t e r l i n e . J u s t a f t e r he

e n t e r e d t h e two-lane highway, f i v e oncoming c a r s p a s s e d by

him, and h e c h e c k e d t h e i r p r o g r e s s i n h i s r e a r v i e w m i r r o r .

When h e looked forward he saw Shannon c u t t i n g through an

approaching curve one o r two f e e t in his lane of travel.

Luksha t e s t i f i e d that l t appeared a head-on c o l l i s i o n was

~ m m i n e n t , s o he swerved h i s t r u c k t o t h e r i g h t . T h i s sudden

a c t i o n and t h e rough r o a d c a u s e d t h e t r u c k t o l e a n b a d l y and

Luksha a l m o s t l o s t c o n t r o l . I t a l s o caused t h e pup-trailer

t o swing o u t i n t o S h a n n o n ' s l a n e of travel. The l e f t s i d e

of t h e t r a i l e r c o l l i d e d w i t h t h e f r o n t and t o p of S h a n n o n ' s

vehicle. Shannon s u f f e r e d s e r i o u s i n j u r y .

Shannon b r o u g h t a n a c t i o n i n J e f f e r s o n C o u n t y D i s t r i c t

Court a g a i n s t a p p e l l a n t s s e e k i n g damages a r i s i n g from the

accident. By s p e c i a l v e r d i c t t h e j u r y f o u n d a p p e l l a n t s n o t

" g u i l t y of n e g l i g e n c e which was t h e p r o x i m a t e c a u s e o f the

c l a i m e d damage."

T h e r e a f t e r , Shannon moved t h e c o u r t t o s e t a s i d e t h e j u r y v e r d i c t and t o g r a n t a new t r i a l . The D i s t r i c t C o u r t

granted a new trial without supporting memorandum. An

a p p e a l was b r o u g h t t o t h i s C o u r t w h i c h f i l e d i t s o p i n i o n on

January 19, 1983. This Court dismissed t h e appeal without

p r e j u d i c e and remanded t h e case t o t h e D i s t r i c t Court f o r

reconsideration and e n t r y of an order s t a t i n g t h e grounds

for granting a new trial in compliance with Rule 59(f),

M.R.Civ.P. Shannon v . Hulett (1983), Mont. , 656

P.2d 825, 40 St.Rep. 35. The remittitur was filed in

District Court on February 1, 1983. On that same day,

District Judges Frank Blair (retired) and Frank Davis

complied with this Court's order by filing memoranda in

s u p p o r t of t h e o r d e r g r a n t i n g Shannon's motion for a new

trial i n t h e D i s t r i c t C o u r t f o r J e f f e r s o n County. Luksha

and Bulett appeal the order granting a new trial. They

r a i s e two i s s u e s f o r o u r c o n s i d e r a t i o n :

1. Was t h e D i s t r i c t C o u r t ' s o r d e r and memorandum i n

support of order procedurally proper and indicative of

a c t u a l consideration given t o its decision?

2. Did the District Court abuse i t s d i s c r e t i o n by

granting a new t r i a l ?

We reverse on the ground that the District Court

abused its discretion in setting aside the jury verdict.

The f i r s t i s s u e i s t h u s m o o t , and w e d o n o t a d d r e s s i t .

Essentially, a p p e l l a n t s contend t h a t a new t r i a l may

n o t be g r a n t e d i f t h e r e is s u b s t a n t i a l evidence t o s u p p o r t

the jury verdict. Here, there are sufficient facts to

s u p p o r t t h e j u r y ' s v e r d i c t t h a t L u k s h a was f r e e f r o m n e g l i -

gence, and the District Court abused its discretion in

setting aside the verdict. Shannon a r g u e s t h a t t h e r e i s no c o n f l i c t i n g e v i d e n c e

which can support the jury determination that Luksha was f r e e from negligence. H e was n e g l i g e n t a s a m a t t e r of law

when the trailer crossed into Shannon's lane of travel.

Shannon's inluries were proximately caused by such

negligence.

The s t a n d a r d f o r g r a n t i n g a new t r i a l i s w e l l e s t a b -

lished in Montana. If there is substantial evidence

supporting the verdict, a new trial may not be granted.

Srenberg v. Nee1 ( 1 9 8 0 ) , Mont . , 6 1 3 P.2d 1 0 0 7 , 37

St.Rep. 1 1 7 0 ; L y n d e s v. S c o f i e l d ( 1 9 7 9 ) , 180 Mont. 1 7 7 , 589

P.2d 1 0 0 0 ; K i n c h e l o e v. Rygg ( 1 9 6 8 ) , 1 5 2 Mont. 1 8 7 , 4 4 8 P.2d

1 4 0 ; H i n t o n v . P e t e r s o n ( 1 9 4 6 ) , 1 1 8 Mont. 5 7 4 , 1 6 9 P.2d 333.

Neither may a District Court grant a new trial simply

because it believed one l i n e of testimony different frorn

t h a t which t h e j u r y b e l i e v e d . Yerkich v. O p s t r a ( 1 9 7 8 ) , 176

Mont. 272, 577 P.2d 8 5 7 ; I n r e E s t a t e o f Hardy (1958), 133

Mont. 5 3 6 , 326 P.2d 692.

When a D i s t r i c t C o u r t d e n i e s a m o t i o n f o r a new t r i a l ,

w a r e less i n c l i n e d t o d i s t u r b t h a t o r d e r because t h e lower e

court has indicated faith in the jury verdict. However,

when a D i s t r i c t C o u r t i s p r e s e n t e d w i t h e v i d e n c e i n f a v o r o f

tne verdict b u t p r o c e e d s t o g r a n t a new trial, it is o u r

duty t o test the evidence a g a i n s t t h e v e r d i c t . Campeau v .

L e w i s ( 1 9 6 5 ) , 144 Mont. 5 4 3 , 5 4 9 , 398 P.2d 9 6 0 , 963.

We find there is s u f f i c i e n t evidence t o support the

jury's verdict. The e v i d e n c e is undisputed t h a t Shannon,

w h i l e d r i v i n g n o r t h b o u n d on 1 - 1 5 , c u t through a curve i n t h e

opposing lane. Luksha, approaching Shannon, responded by

s w e r v i n g t o t h e r i g h t t o a v o i d a head-on collision. There was no e v i d e n c e i n d i c a t i n g t h a t L u k s h a was d r i v i n g u n s a f e l y

prior t o o b s e r v i n g Shannon o r t h a t h e was n e g l i g e n t i n a n y

o t h e r way.

By s p e c i a l v e r d i c t t h e j u r y f o u n d t h a t n e i t h e r Luksha

n o r h i s e m p l o y e r w e r e g u i l t y of a n y n e g l i g e n c e w h i c h p r o x i -

m a t e l y c a u s e d t h e c l a i m e d damage.

C o u r t ' s I n s t r u c t i o n Nos. 3 and 4 s t a t e :

"Every p e r s o n i s r e s p o n s i b l e f o r i n j u r y t o t h e person o r p r o p e r t y of a n o t h e r , c a u s e d by w a n t o i o r d i n a r y c a r e o r s k i l l .

"When u s e d i n t h e s e i n s t r u c t i o n s , n e g l i - g e n c e means w a n t o f s u c h o r d i n a r y c a r e o r skill. Such w a n t o f o r d i n a r y c a r e o r s k i l l e x i s t s when t h e r e i s a f a i l u r e t o d o t h a t which a r e a s o n a b l e and p r u d e n t p e r s o n would o r d i n a r i l y h a v e d o n e u n d e r t h e c i r c u m s t a n c e s of t h e s i t u a t i o n , o r d o i n g what s u c h p e r s o n under t h e e x i s t i n g c i r c u m s t a n c e s would n o t h a v e d o n e . " In- s t r u c t i o n No. 3 .

"You a r e i n s t r u c t e d t h a t a v i o l a t i o n o f law i s o f no c o n s e q u e n c e u n l e s s i t was a proximate c a u s e of ( o r c o n t r i b u t e d a s a p r o x i m a t e c a u s e t o ) a n i n j u r y found by you t o h a v e b e e n s u f f e r e d by t h e P l a i n - tiff." I n s t r u c t i o n No. 4 .

Under t h e f a c t s o f t h e c a s e and w i t h i n t h e p a r a m e t e r s

of t h e a b o v e i n s t r u c t i o n s t h e j u r y c o u l d h a v e , f i r s t o f a l l ,

found Luksha committed no n e g l i g e n c e . T h e r e was n o e v i d e n c e

i n d i c a t i n g h e was n e g l i g e n t p r i o r t o t a k i n g e v a s i v e a c t i o n .

Further, Luksha a c t e d a s a n y r e a s o n a b l e and p r u d e n t p e r s o n

would when f a c i n g a n imminent head-on collision--he moved

o u t o f t h e way.

Secondly, t h e f a c t t h a t Shannon w a s d r i v i n g i n t o t h e

oncoming lane when approaching Luksha further supports a

finding that such action was the proximate cause of

Shannon I s injuries.

W e v a c a t e t h e o r d e r g r a n t i n g a new t r i a l . We rein- s t a t e t h e j u r y v e r d i c t and t h e j u d g m e n t e n t e r e d t h e r e o n .

~LJk.8t$&A, Chief J u s i c e t

W concur: e Mr. Justice Frank B. Morrison specially concurs as follows: I concur in the result but not in all that is said in the majority opinion. The majority dismisses negligence on the part of the defandant without discussing defendant's statutory violation. Is the majority taking the position that defendant was involuntarily across the centerline in the wrong lane of traffic? If so there is support in the law excusing the statutory violation. However, if the defendant made a calculated judgment to leave his lane of traffic for some reason, a holding that a statutory violation is excused represents new law in Montana. The issue is concluded without discussion. The majority simply states that the defendant's conduct was to be considered by the jury under the "reasonable and prudent person" standard. The defendant's statutory violation is ignored. I would reverse the granting of a new trial and reinstate the defense verdict for the reason that the jury could have found that any negligence on the part of the defendant was not a proximate cause of the accident. The record in this case supports the defense verdict on the basis that plaintiff's conduct, rather than the conduct of defendant, formed the sole proximate cause of the accident and consequent injuries to the plaintiff. Mr. Justice Daniel J. Shea, dissenting:

I would affirm the order granting a new trial. The statutory violation of defendant driver is clear--the tail end of his tractor-trailer rig was on the wrong side of the road at the time of collision. I would further hold as a matter of law that at least one proximate cause of the accident was the pup-trailer being on the wrong side of the highway at the time of impact. Regardless of plaintiff's initial negligence, he had a right to expect that when he recovered from his own driving error that his own lane of traffic would be clear. It is not necessary that the driver of the tractor-trailer rig be actively negligent. Here, he may not have been. He swerved his rig to avoid the plaintiff's vehicle which was initially in the wrong lane of traffic. However, the effect of swerving the rig was to swing the pup-trailer into plaintiff's lane of travel. I have no doubt that a contributing proximate cause of the accident was the failure of the defendant driver to have his rig in the proper lane of travel. There being negligence (a statutory violation) and there being negligence which was at least a contributing proximate cause of the accident, the jury could not properly absolve the defendant of all responsibility. Therefore, the trial court was correct in granting a new trial. The distance between the front bumper of the tractor to the rear bumper of the pup-trailer was 73 feet, 6 inches. The pup trailer was hooked to the main trailer with a 15 foot tongue that produced a "swivel at the back of the truck." This combination rig made it an extremely long and dangerous highway vehicle, and the danger was multiplied many times over by the fact that the tractor was pulling 10,000 gallons of gasoline. Plaintiff, an 87 year old man, regardless of his own initial negligence in swerving onto the lane of the tractor-trailer, had a right to assume that once he recovered from his own driving error he would not be confronted with the pup-trailer blocking in part his lane of travel. The extreme length of the tractor-trailer rig made it impossible for the defendant driver to have his rig under control. Although federal and state laws seem to be ever more permissive as to allowable tractor-trailer lengths, the traffic safety laws must also be interpreted to protect the driving public who meet these monsters on the highway. We have failed in that duty here.