*1 DOUGLAS C. BROOKINGS,
Appellant and Plaintiff,
v. DICK THOMPSON, Respondent and Defendant.
DONALD J. TIGART, Respondent and Plaintiff,
v. RICHARD J. THOMPSON, Respondent and Defendant.
RICHARD J. THOMPSON, Respondent Third-Party
DONALD J. TIGART, Respondent Third-Party Defendant. No. 90-370.
Submitted on briefs Mar.
1991.
7,May
Decided
1991.
Rehearing
May 24,
Denied
1991.
JUSTICE WEBER of a injury arising of a out appeal personal This is the third Montana, 4,1985. The Conrad, January accident in 21,1988, finding neither in verdict on March first trial resulted a a The District Court Tigart negligent. nor to be Thompson This Court irregularities proceedings. for new trial trial, Tigart a new granting Brookings and District Court’s order appealed a second time P.2d 401. The case was then upheld the District Court’s attorney’s fees. This Court on the issue of attorney’s fees. award retrial, again jury returned its verdict on May
On Brookings Tigart negligent. nor to be Thompson neither Brookings’ motion. trial. The District Court moved for a new Brookings We affirm. appeals.
The determinative issue is: a new denying Brookings’ motion for Corut err
Did defendants, Tigart Thompson, and trial on the basis negligent as a matter of law? by Tigart. driven pickup a Brookings, was with black in Conrad that was covered
Tigart rounding a corner pulled out onto Thompson, driving pickup, also ice. inup ended out of control and Tigart. Tigart’s pickup went
front of top. the ditch on the cause of in the as to substantial conflict
There was onto the Thompson pulled out Tigart the accident. asserts to hit his Tigart was forced stopping looking. highway without He large sign. began He to slide towards to avoid a collision. brakes top. ditch on its Both up ended pickup and the over-corrected testimony contained inconsistencies Tigart’s highway. Thompson’s vehicle and at what distance conflicting testimony Thompson stopped There was to whether highway. Tigart entering Thompson before testified that difficulty obtaining pulled vehicle had traction when it out onto the Officer highway. slip- Harris testified there was no evidence of at ping spinning Thompson pulled tires the intersection where out. Randy Tim Witnesses Olson and Miller testified at trial at length city yards separated Thompson least 100 or the block Tigart began skidding Tigart vehicles when the highway. control on the Miller not see Thompson did how Tigart vehicle to lose control because of distance between two vehicles. The estimates of Miller and Olson as to the distance between the vehicles were confirmed taken a paralegal. measurements later Tigart asserts that Thompson’s and look before action, pulling forced causing to take evasive the accident. makes the same claim Thompson. as to also negligent claims icy than was reasonable conditions. The found neither nor to be Brookings claims that he is entitled to a new trial under the *3 provisions 59(a), M.R.Civ.B, of Rule and under § MCA. (a) Rule 59 states in pertinent part: A may granted
“Grounds. new trial the parties be to all of and on all or of the issues for provided reasons the statutes of the state of Montana. ...” 25-11-102(6),MCA, Section states:
“Grounds for new trial. The former verdict other decision be vacated and a trial on application new aggrieved following materially affecting of causes rights party: substantial of such
“(6) insufficiency justify of the evidence to verdict against law;” decision or that it is grant
The decision to a new trial is within the sound discretion of judge showing trial and will not be overturned absent a Stanhope (1990), manifest abuse of discretion. 241 Lawrence 468, 1226, 471, 787 P.2d 1228. This Court’s function is determine if there is support substantial credible evidence the record to jury’s (1988), 238, 236, verdict. v. Rue Walls 233 Mont. 169, 171. P.2d light We view favorable must the evidence most below, the prevailing party presents conflicting the record disturbing precluded from evidence, jury, resolved this Courtis the District applicable particularly Id. This rule is the verdict. new the evidence on motion for sufficiency passed Court has testimony at trial sufficiency. Id. has When trial and event, an it would be an abuse accounts of includes different solely it grant a new trial for the trial court to discretion jury. by the testimony than that believed different chooses to believe vitality sap supremacy To do so would create bench P.2d (1982), 199 Mont. verdicts. Nelson v. Hartman 1176, 1178-1179. kind of to be that this Brookings’ argument appears basis hurt and negligence. happen
accident cannot absent Brookings produces no evidence had to be at fault. somebody Aemisegger v. Herman Brookings cites support this contention. proposition for the traffic law when he violates basic negligent as a matter of defendant is failing take the condi- rules, right-of-way or yielding such as Aemisegger does not stand into consideration. tions of the there is an suggests, that because proposition, Aemiseg- negligent. The evidence accident, be found someone must In case the evidence was at fault. this ger clear that the defendant anyone was at fault. conflicting not at all clear that is it not err when District Court did hold that We the defendants motion for a new trial on basis law. Affirmed. negligent as a matter of were and HUNT JUSTICES GRAY TURNAGE and CHIEF JUSTICE concur. TRIEWEILER, concurring:
JUSTICE majority. opinion I dissent from an accident mere occurrence of general rule the agree I that as accident. negligence require a does not facts applicable to the logically not general rule is *4 this case. an innocent Douglas Brookings, was plaintiff,
The and rolled control, highway, left the which went over. vehicle, his loss of blamed that motor Tigart, the driver of
Donald entrance unexpected Thompson’s on Richard control highway or driveway, Thompson’s from side street yield Tigart. right-of-way to
Thompson’s defense was simply operating was his conditions, therefore, existing vehicle too fast for the was unable to control his vehicle when even so, though have respective he should been able to do based on their locations at the time. alleges
No plaintiff any way one to the contributed cause any the accident. Neither did or witness blame person other than for what occurred.
This only accident could occurred of one the two previous explanations. Either Thompson yield right-of- failed to way to Tigart, going was fast existing icy too conditions.
If Thompson yield failed right-of-way Tigart, to then he 61-8-341, MCA, violated which provides part § relevant that: “The driver vehicle shall ... at the to a through entrance highway shall yield right-of-way ... vehicles which approaching so closely on said through highway constitute an immediate hazard ...”
If the accident occurred because was operating his vehicle on an icy speed road at a which left him unable control vehicle necessary, then MCA, he violated provides which § relevant that:
“Aperson operating public character on a state manner, of this shall drive it in a and prudent careful reasonable rate of no than is reasonable and existing point conditions at the operation, taking into surface, account ... condition of and freedom of obstruction to view ahead ...”
The plaintiff injured accident which the not logically have occurred unless one of above statutes was violated. Violation per either statute was negligence Aemisegger se. v.Herman conflicting. have been that did not absolve obligation deciding to resolve the evidence that one or both defendants was retrial, I would remand this to the Court for based on instructions that its sole decide which responsibility is to plaintiff defendants was at fault for the accident which injured.