Berdine v. Sanders County, 12487

• Decision Date: 04 April 1974
• Docket Number: No. 12487,12487
• Parties: Leslie BERDINE and Kenneth N. Hagen, Plaintiffs and Appellants, v. SANDERS COUNTY et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 650

520 P.2d 650

164 Mont. 206

Leslie BERDINE and Kenneth N. Hagen, Plaintiffs and Appellants, v. SANDERS COUNTY et al., Defendants and Respondents.

No. 12487.

Supreme Court of Montana.

Submitted Feb. 27, 1974.

Decided April 4, 1974.

Tipp & Hoven (Raymond P. Tipp argued), missoula, for appellants.

Garlington, Lohn & Robinson, William Evan Jones appeared and Gary L. Graham argued, Missoula, for respondents.

JAMES T. HARRISON, Chief Justice.

This is an appeal by the plaintiffs from a verdict and judgment of the district court of Sanders County, sitting with a jury, in favor of defendants and from the denial by the district court of plaintiffs' motion for new trial.

This cause was commenced by plaintiffs, Kenneth N. Hagen and Leslie Berdine, to recover damages for personal injuries from Sanders County, the Sanders County Board of Commissioners, the Commissioners and Paul Douglas Albano, an employee of Sanders County. Essentially the factual situation is as follows:

On November 28, 1970, defendant Paul Douglas Albano was plowing snow on the Lower Heron Road, a graveled road, in Sanders County. There were four to six inches of snow covering the road. Albano was driving a 1969 Ford truck on which was mounted a snowplow with an angle blade 12 feet in width which because of its angle plowed an 8 foot width. The portion of the blade on driver Albano's left was flush with the edge of the truck and the portion on his right extended 2 feet and 9 inches beyond the right side of the truck.

Albano started plowing the road going west with the left portion of the blade in the center of the road throwing the snow toward the outside or north side of the road. He then proceeded east along the road again with the left portion of the plow at the center of road to make sure that he cleaned the center. Albano next proceeded west along the road and at the extreme right shoulder of the road in order to completely clean the right hand portion of the road.

The snowplow, which was owned by Sanders County, had a yellow caution light on top which was operating.

Plaintiffs were returning from a deer hunting trip in an automobile operated by plaintiff Kenneth Hagen. Plaintiff Leslie Berdine was a passenger in the front seat of the automobile. Michael Berdine was a passenger in the back seat. Plaintiffs were traveling east.

It was on his third pass that defendant Albano met plaintiffs' automobile. Snow of the depth of about 8 inches still covered a portion of plaintiffs' half of the roadway on the right shoulder. As Albano was meeting plaintiffs' automobile, he hit a soft spot on the roadway, tried to pull the plow up, but found that it would not raise. He put on his brakes and started to shift. The blade on the snowplow dug in causing the snowplow to come to a halt. The snowplow stopped about 2 feet from where it had dug into the roadway.

Albano collided with the side of plaintiffs car which went into the borrow pit on plaintiffs' side of the road. At the time the two vehicles met and the snowplow caught in the shoulder of the road, the back wheels of the snowplow slid towards the borrow pit causing the blade of the snowplow to slide towards the center of the road. The rear wheels of the snowplow truck were barely off the right shoulder of the road, and the front wheels were on the roadway.

As a result of the accident plaintiffs incurred hospital bills, doctor bills and other medical expenses and damages. Plaintiffs instituted this cause essentially alleging that defendant Albano was negligent in failing to keep the snowplow in its own traffic lane and in failing to operate the snowplow in such a manner as to avoid endangering the plaintiffs and the collision. Trial was held. Judgment on the verdict was entered for the defendants and plaintiffs moved for a new trial, which was denied.

Plaintiffs present four issues for review which can be summarized and stated as follows: (1) Whether there is substantial evidence to support the verdict of the jury; (2) whether testimony of Undersheriff Williams, Sanders County, was improper, and (3) whether the district court erred in failing to grant plaintiffs' motion for a new trial.

With respect to plaintiffs' first issue, this Court has repeatedly held that the finder of fact, the jury in the instant case, will not be reversed on appeal unless the evidence clearly preponderates against the findings. Quitmeyer v. Theroux, 144 Mont. 302, 307, 395 P.2d 965; Close v. Estate of Ruegsegger, 143 Mont. 32, 41, 386 P.2d 739; Marker v. Zeiler, 140 Mont. 44, 55, 367 P.2d 311.

As we stated in Bernhard v. Lincoln County, 150 Mont, 557, 561, 437 P.2d 377, 380:

'When such a question is before this court we will only review the evidence to decide if the verdict is supported by substantial evidence. Breen v. Industrial Accident Board (1968), (150 Mont. 463), 436, P.2d 701. The fact that there were conflicts in the testimony does not mean there is not substantial evidence to support the verdict. We must accept the evidence believed by the jury 'unless that evidence is so inherently impossible or improbable as not to be entitled to belief * * *.' Wallace v. Wallace, 85 Mont. 492, 279 P. 374, 377, 66 A.L.R. 587 (1929).'

After reviewing and considering the evidence in the instant case, we find that there is substantial evidence to support the verdict for the defendants. Plaintiffs argue that reasonable men must conclude that the evidence in this case stablishes that the snowplow crossed the road into plaintiffs' lane of traffic, which argument is plaintiffs' basic theory for alleging that defendant Albano was negligent.

At the trial plaintiff Hagen testified that he was in his proper lane of traffic as he was approaching the snowplow and that the snowplow came across the road and struck his vehicle. He also stated that his side of the road had been completely plowed but nothing had been plowed on the side that the snowplow was working on. Defendant Albany who was called as an adverse witness by plaintiffs, testified that he was plowing on the extreme outer portion of his right lane after plowing the center of both sides.

Plaintiff Berdine stated that as they were driving down the road that he looked up and saw the snowplow coming across the road towards their vehicle. He further testified that after the accident the snow plow blade extended halfway across the plaintiffs' lane of traffic but did not know how far the snowplow blade went to the left of...