Ewing v. Esterholt, 83-372

• Decision Date: 10 July 1984
• Docket Number: No. 83-372,83-372
• Citation: 210 Mont. 367,684 P.2d 1053,41 St.Rep. 1095
• Parties: Robert E. EWING, Plaintiff and Respondent, v. Don L. ESTERHOLT, William P. Ordway d/b/a Fromberg Scrap, James K. LaFever and United Parcel Service, a corp., Defendants and Appellants.
• Court: Montana Supreme Court

Page 1053

684 P.2d 1053

210 Mont. 367

Robert E. EWING, Plaintiff and Respondent, v. Don L. ESTERHOLT, William P. Ordway d/b/a Fromberg Scrap James K. LaFever and United Parcel Service, a corp., Defendants and Appellants.

No. 83-372.

Supreme Court of Montana.

Submitted on Briefs Dec. 8, 1983.

Decided June 7, 1984.

Rehearing Denied July 10, 1984.

Hash, Jellison, O'Brien & Bartlett, Kenneth E. O'Brien, Kalispell, for defendants and appellants.

Keller & German, Robert S. Keller, Kalispell, for plaintiff and respondent.

HARRISON, Justice.

This case arose out of a traffic accident which took place in 1977 near Somers, Montana. After a jury verdict was entered, the District Court granted a new trial on the motion of respondent Ewing. Defendants LaFever and United Parcel Service, (hereinafter UPS) appeal from this order, from several jury instructions given and refused, and from a ruling allowing one of plaintiff's expert witnesses to testify.

On October 31, 1977, defendant Esterholt was driving a truck-trailer combination north on U.S. Highway 93 along the west shore of Flathead Lake. Appellant LaFever followed Esterholt driving a UPS van. Just south of Somers, Montana, the two vehicles proceeded up a hill in this order, traveling at approximately ten to fifteen miles per hour until they reached the crest of the hill. As they descended, both vehicles began to pick up speed. A no-passing zone extended downward from the top of the hill for several hundred feet, but when this zone ended LaFever pulled into the left lane and began to pass Esterholt.

During the course of the pass Esterholt continued to increase his speed, causing LaFever to proceed into a no-passing zone to overtake him. This was complicated further by the fact that the highway curved sharply to the right at the bottom of the hill. When LaFever reached the rear of Esterholt's cab, he saw an oncoming vehicle which was flipping its lights alternatively from bright to dim to call attention to itself. LaFever elected to complete the pass rather than slowing down to return to his lane behind Esterholt. LaFever completed the pass and returned to his lane, missing a head on collision with the oncoming vehicle by approximately twenty feet. There was no contact between the LaFever and Esterholt vehicles.

Shortly after the pass was completed, the Esterholt vehicle overturned into the other lane of traffic, causing the deaths of three people in an oncoming car and injuring respondent Ewing in the following oncoming car. The primary question in the case is why Esterholt's vehicle overturned. Esterholt and respondent Ewing contend that LaFever cut so closely in front of Esterholt that he was forced to turn sharply to avoid hitting him, which caused his load to shift and the truck to overturn. However, LaFever contends that he was safely past Esterholt when the accident occurred. He contends Esterholt was simply traveling too fast to negotiate the curve, and the truck began to slide to the outside of the curve from centrifugal force and eventually tipped over.

The trial was not held until over five years after the accident occurred, at which time the plaintiff introduced into evidence a diagram of the accident scene. The diagram had been drawn by a Montana Department of Highways engineer using the figures obtained by the investigating highway patrolmen. On the diagram the tire skid marks made by Esterholt's vehicle were shown. The skid marks were placed in the early part of the curve, where the road was still relatively straight.

Plaintiff called an expert on accident reconstruction, Dennis Parr, as part of his case in chief. His testimony was based on the diagram, the figures and distances contained in the patrolmen's notes, and his own investigation of the accident scene. Since he was not consulted until over a year after the accident occurred, he had to rely on second hand information as to the placement of the skid marks. He was able to make his own measurements to determine the radius or sharpness of the curve. Based on the data accumulated, he found that the radius of the curve was 1,950 feet at the point where the skid marks were placed. Based on that figure and his computations, Parr testified that Esterholt would have to have been traveling at 105 to 110 miles per hour for those skid marks to have come from his vehicle sliding sideways from centrifugal force, as LaFever testified.

Parr had also interviewed several eyewitnesses to the accident, who stated that the point where the skid marks were placed was also the point where LaFever cut in front of Esterholt. Since he had already concluded that the skid marks could not have been caused by Esterholt sliding sideways from centrifugal force, he theorized that they must have come from the truck sliding sideways after LaFever cut in front of him.

At the close of Ewing's case, LaFever and UPS presented their evidence and recalled one of the highway patrolmen, questioning the accuracy of the tire mark placement on the diagram. After several discussions, the patrolman concluded that they had been incorrectly placed on the diagram. He so testified, and further stated that they should have been placed further into the curve where the radius was sharper.

Counsel for Ewing immediately asked to be heard in chambers where he requested a continuance based on alleged surprise, or in the alternative a mistrial. After considerable discussion in chambers, the trial judge denied the motion for continuance and took the motion for mistrial under advisement.

When appellant's accident reconstruction expert testified, he estimated that the radius of the curve where the tire marks now lay was between 1,950 feet and 825 feet. Based on that estimate he further testified that Esterholt could have left the sliding marks traveling at between 50 and 60 miles per hour. Respondent's expert, Parr, testified that he could not honestly advise the jury on the cause of the accident after the new placement of the skidmarks, given the short period of time he had to analyze the change.

At the conclusion of the trial, the jury found no negligence on the part of LaFever, but did find Esterholt negligent and assessed damages against him. Shortly thereafter respondent moved for a new trial on the grounds that the patrolman's change of testimony amounted to accident and surprise which he could not have guarded against. Briefs were filed and oral arguments heard, after which the motion for a new trial was granted. From this order and other rulings during the course of the trial, this appeal is taken.

The following issues are presented by appellant:

(1) Did the trial court err by granting the motion for a new trial?

(2) Did the trial court err in refusing to give appellant's proposed instructions nos. 11 and 13?

(3) Did the trial court err in refusing to grant defendant a continuance or exclude respondent's expert witness?

(4) Did the trial court err in allowing respondent's expert witness to give his opinion concerning respondent's income loss predicated upon work life expectancy as of the trial date rather than the date of the accident?

(5) Did the trial court err in allowing respondent's expert witness to testify concerning loss of corporate profits as evidence of respondent's lost profits?

With respect to the first issue, this Court has stated consistently that "[T]he granting of a new trial is within the sound discretion of the trial court and its order granting a new trial will be reversed only for manifest abuse of that discretion." Haynes v. County of Missoula (1973), 163 Mont. 270 at 278, 517 P.2d 370 at 375. Respondent moved for a new trial based on the grounds enumerated in Section 25-11-102(3), MCA, that the change in testimony amounted to "[A]ccident or surprise which ordinary prudence could not have guarded against..."

The criteria which must be met before a new trial may be granted on the grounds of surprise were first announced by this Court in Hill v. McKay (1908), 36 Mont. 440, 93 P. 345, where we said:

" * * * it is the general rule that a new trial will be granted on the ground of surprise only when it is clearly shown that the movant was actually surprised, that the facts from which the surprise resulted had a material bearing on the case, that the verdict or decision resulted mainly from these facts, that the alleged condition is not the result of movant's own inattention or negligence, that he has acted promptly and claimed relief at the earliest opportunity, that he has used every means reasonably available at the time of the surprise to remedy the disaster, and that the result of a new trial will probably be different." 36 Mont. 446, 93 P. at 347.

These criteria were confirmed in a more recent case, Morris v. Corcoran Pulpwood Co. (1970), 154 Mont. 468, 465 P.2d 827.

Appellant contends that three of the above criteria are absent from this case. First he contends that respondent could have prevented this surprise and found the mistake by exercising ordinary prudence, arguing that appellant's attorney found the mistake by exercising such ordinary care. However, it was not ordinary prudence, but extraordinary scrutiny which found the mistake. As the trial judge noted in his memorandum in support of his ruling granting the new trial, the mistake was not uncovered when appellant cross examined the patrolman on the first day of trial. Moreover, several experts had examined the chart over a period of almost six years and the error had not been found by anyone. Whether the mistake could have been found by exercising ordinary prudence is a question of fact which was resolved in favor of respondent by the trial judge on the facts presented; it was clearly within his discretion to do so.

Appellant next contends that the change in position of the tire tracks did not have a material bearing on the case, and the verdict did not result from this change. The fallacy of this assertion is readily apparent....