Shannon v. Hulett ( 1983 )

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 .
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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.