Waatti v. Dollan , 193 Mont. 329 ( 1981 )


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  •                                     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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Document Info

Docket Number: 80-312

Citation Numbers: 193 Mont. 329, 631 P.2d 1279, 1981 Mont. LEXIS 762

Judges: Daly, Haswell, Morrison, Shea, Weber

Filed Date: 7/9/1981

Precedential Status: Precedential

Modified Date: 11/10/2024