Brogan v. Blanchard , 200 Mont. 399 ( 1982 )

No. 82-31
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
TOM BROGAN,
Plaintiff and Respondent,
VS .
JOHN BLANCHARD,
Defendant and Appellant.
Appeal from: District Court of the Sixth Judicial District,
In and for the County of Park
Honorable Jack Shanstrom, Judge presiding
Counsel of Record:
For Appellant:
Huppert and Swindlehurst, Livingston, Montana
For Respondent:
Robert L. Jovick, Livingston, Montana
Submitted on briefs: April 22, 1982
Decided: September 23, 1982
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Filed. 2 3 1982
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Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
Defendant appeals from a judgment entered on jury
verdict by the Sixth Judicial District Court, Park County,
Montana. We affirm.
Plaintiff brought an action alleging defendant negligently
failed to close a farm gate allowing plaintiff's horses to
escape onto a highway where they were subsequently killed.
Jury trial resulted in a verdict for the plaintiff and the
sole issue on appeal is whether there is sufficient evidence
to support the verdict.
In August of 1977, defendant went to plaintiff's farm
premises to return a tractor belonging to plaintiff. It was
necessary for the defendant to pass through two gates on
plaintiff's premises. Plaintiff testified that defendant
told him that he did not expressly remember shutting the
gates, but that he did not remember leaving them open.
Plaintiff's wife testified that defendant admitted leaving a
gate open, but she did not remember any specific language
attributable to the defendant. Defendant disputed the
testimony of plaintiff's wife.
The morning following the day when defendant went to
plaintiff's premises, two of plaintiff's horses were found
dead on or near the highway, abutting plaintiff's farmstead.
The two boys that had accompanied defendant to plaintiff's
premises testified positively that defendant had closed the
gates.
The issue presented for resolution is whether under
plaintiff's proof an issue was created for the jury on
liability. We hold that there was evidence from which the
jury might infer that plaintiff's horses escaped as the result of
defendant's negligence in leaving the gates open.
The jury need not have believed the testimony of the
boys who accompanied the defendant on the day in question.
Jacques v. Montana National Guard (1982), Mont. I
P. 2d , 39 St.Rep. 1565, 1572. The jury could have
believed the testimony of plaintiff's wife that defendant
admitted leaving the gates open. There was the further
circumstantial evidence that the horses were found dead near
the roadway on the day following defendant's visitation.
This Court must view the evidence in the light most
favorable to the prevailing party. Gunnels v. Hoyt (1981),
Mont. , 633 P.2d 1187, 38 St.Rep. 1492, 1495.
Where there is substantial credible evidence to support a
jury verdict, it cannot be overturned on the basis of insuf-
ficiency. Nelson v. Hartman (1982), Mont. -1 -
P. 2d , 39 St.Rep. 1409; Jacques v. Montana National Guard,
supra.
We affirm.
Justice