Reynolds v. Jones

163 P. 469 | Mont. | 1917

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The plaintiff, while leaving the Star Theater in Billings, was injured by a billboard falling against her. She brought this action to recover damages and secured a favorable verdict. The lower court granted a new trial, and plaintiff appealed from the order.

[1,2] The motion for a new trial was made upon all the statutory grounds, and the order sustaining it is general in terms. If the order can be justified upon any of the grounds, it must be approved. (Scott v. Waggoner, 48 Mont. 536, L. R. A. 1916C, 491, 139 Pae. 454.) One ground of the motion is insufficiency of the evidence to justify the verdict. There was not any evidence to disclose what caused the billboard to fall, and plaintiff relied upon a presumption of negligence invoking the maxim res ipsa loquitur. The defendants offered evidence tending to show the degree of care exercised by them with reference to the billboard. The presumption on the one hand, and the evidence on the other, at least raised an issue as to whether defendants were guilty of actionable negligence. The burden was upon the plaintiff to sustain the affirmative of this issue by a preponderance of the evidence, and though the presumption had the force and effect of evidence, if, upon the whole case made, the trial court was of the opinion that plaintiff had failed to sustain the burden thus imposed, the duty devolved upon it to grant a new trial. (Hamilton v. Monidah Trust, 39 Mont. 269, 102 Pac. 335.) The application was addressed to the sound, legal discretion of the court below, and its order is subject to review only for an abuse of that discretion. An examination of the record fails to disclose any such abuse, and for this reason the order is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.