Gunnels v. Hoyt
| Decision Date | 09 September 1981 |
| Docket Number | No. 80-106,80-106 |
| Citation | 633 P.2d 1187,38 St.Rep. 1492,194 Mont. 265 |
| Parties | Ronald L. GUNNELS, Plaintiff and Appellant, v. Robin W. HOYT and Michael Chappel Balsam, Defendants and Respondents. |
| Court | Montana Supreme Court |
Terry N. Trieweiler, Whitefish, for plaintiff and appellant.
Murphy, Robinson, Heckathorn & Phillips, Kalispell, for defendants and respondents.
Plaintiff appeals from the jury verdict and judgment entered in the District Court of the Eleventh Judicial District, Flathead County. The jury found the defendants "(not) guilty of negligence which was the proximate cause of Plaintiff's claimed damages," and also returned a similar verdict in favor of the plaintiff upon defendant Hoyt's counterclaim. The District Court entered judgment for the defendants. Hoyt does not cross-appeal.
Plaintiff presents two issues for review:
1. Was there evidence sufficient to support a verdict for the defendants?
2. Were defense counsel's comments on excluded evidence sufficiently prejudicial to warrant a reversal of the verdict for defendants and a new trial for the plaintiff?
We affirm the jury verdict and judgment.
This action arose out of a motor vehicle accident which occurred on September 19, 1977. Plaintiff Ronald Gunnels brought suit against Robin Hoyt and Michael Balsam, alleging that their negligence had been the cause of the accident that resulted in injury to Gunnels. Hoyt counterclaimed against Gunnels, alleging that she had sustained bodily injury as a result of Gunnels' negligence. Trial was held in September 1979. The jury found neither defendant had been guilty of negligence which was the proximate cause of the plaintiff's claimed damages. Defendants were awarded costs and disbursements totaling $103.25. Plaintiff Gunnels appeals from the verdict and judgment against him.
Plaintiff Gunnels was driving a 1972 Dodge half-ton pickup on September 19, 1977. He drove into the rear of a 1965 Volkswagen sedan in the control of the defendants at approximately 11:30 p. m. The collision occurred on Montana Highway 40 between Columbia Falls and Whitefish, at a spot 2.9 miles west of Columbia Falls, in the westbound lane climbing "Dollar Hill".
The road was wet, and there was a slight mist or drizzle in the air at the time of the accident. The night was extremely dark due to the rainy conditions and the wet asphalt road. The highway was over 47 feet wide at the site, but had no white stripe or "fog line" to demarcate the shoulder area and to separate it from the main roadway. Because the plaintiff questions the sufficiency of the evidence to support the verdict, we will review the evidence.
According to Hoyt and Balsam's testimonies, Robin Hoyt was driving west towards Whitefish, with Balsam as a passenger, in a friend's 1965 Volkswagen sedan. Approximately three miles west of Columbia Falls, on "Dollar Hill", two cats ran across the road in front of the car. Hoyt swerved to the right to avoid hitting the cats; she applied her brakes to stop the car but forgot to depress the clutch pedal, thereby causing the car to stall. The car stopped off and to the right of the main-traveled portion of the westbound lane according to both defendants, although there was no shoulder stripe, or "fog line", to separate the roadway from the shoulder area.
The defendants' had had trouble starting the car earlier due to a weak battery, and were not able to start the car again after stalling. They attempted to start it by "popping the clutch"; Balsam pushed the car backwards down the hill, while Hoyt remained in the driver's seat in order to let out the clutch while turning the ignition. They executed this maneuver 12-15 times over a period of 15-20 minutes, while backing down the hill 100-200 yards. Both testified that they attempted to keep the car as close to the right "westbound" edge of the highway as possible, but that Hoyt had some difficulty in steering backwards straight down the hill and would swerve to either side on occasion. The car's headlights and taillights were on throughout the defendants' attempts to "pop the clutch".
During the above-described 15-20 minute period, seven or eight cars approached the Volkswagen going up the hill in the westbound lane toward Whitefish (the same direction in which the defendants had been traveling). Whenever a car came toward them, Balsam would push the Volkswagen to the edge of the westbound lane, as far out of the roadway as possible, and then move to the rear of the Volkswagen and attempt to warn the approaching car by means of waving and shining a flashlight at its windshield. The defendants testified that all of the approaching drivers slowed perceptibly to pass. One car even stopped.
As plaintiff's truck approached the Volkswagen from the rear, Robin saw the lights of the truck, and told Balsam of the vehicle coming. She placed the car in gear and pulled out the emergency brake. Balsam walked to the rear of the Volkswagen and started shining the flashlight at the windshield of plaintiff's truck. When plaintiff's truck did not slow down or show any evidence of plaintiff's having seen them, Balsam realized that the plaintiff was going to hit them. Balsam yelled at Hoyt to stay in the car, and ran off into the barrow pit.
Plaintiff testified he never saw Balsam or the flashlight or the Volkswagen prior to the collision. His truck, however, left 26 feet of skidmarks in a straight line down the right, westbound lane, the left skidmark being approximately three feet from the center line. Plaintiff had been traveling 50-60 miles per hour according to the investigating patrolman. The patrolman also testified that a driver coming from either direction would have an unobstructed line of vision to the site of the accident for a distance of 500-600 feet.
Plaintiff filed a complaint alleging that the defendants' negligence had caused the collision and proximately resulted in damages to plaintiff in the nature of medical expenses, pain and suffering, loss of earning ability, and in property damage to the truck. The answer admitted the collision had occurred but denied that plaintiff's damages had been caused by any negligence on the part of either defendant. The answer alleged that any injuries or damages suffered by the plaintiff had been caused in whole or in part by his own negligence.
Jury trial was held in September 1979. At the close of the presentation of evidence, the plaintiff moved for a directed verdict as to liability, arguing that the defendants' negligence had been proved as a matter of law. The motion was denied. The jury returned the following verdict:
The jury was then polled, and all 12 agreed with the verdict. Judgment upon the complaint was entered in favor of the defendants.
Plaintiff's first issue disputes the sufficiency of the evidence to support the verdict. In considering the sufficiency of evidence, we apply a limited standard of review. Where a fact issue is presented before a court sitting with a jury, and there is substantial evidence to support the jury verdict, the verdict will stand. Matter of Estate of Holm (1979), Mont., 588 P.2d 531, 533, 36 St.Rep. 11, 13 ().
We review the evidence in a light most favorable to the prevailing party. We will reverse only where there is a lack of substantial evidence to support the judgment. Groundwater v. Wright (1979), Mont., 588 P.2d 1003, 1004, 36 St.Rep. 41, 42; Holm, 588 P.2d 532, 36 St.Rep. 14.
Evidence may be inherently weak and still be deemed substantial, and substantial evidence may conflict with other evidence. Matter of Estate of Holm, supra.
If there is conflicting evidence in the record, the credibility and weight given to such conflicting evidence is the province of the jury and not this Court. Holm; In Re Carroll's Estate (1921), 59 Mont. 403, 413, 196 P. 996, 998.
If there is substantial evidence in the record to support the finding of the jury, then we must sustain the trial court's action in denying the plaintiff's motion for a directed verdict. Butler Manufacturing Co. v. J & L Implement Co. (1975), 167 Mont. 519, 529, 540 P.2d 962, 968.
Plaintiff asserts that this Court has held that where an automobile collision is caused by the violation of a motor vehicle statute, a directed verdict should be entered against the party who violated the law upon the issue of liability, and only the issue of damages should be submitted to the trier of fact. Such an argument is one of negligence per se.
The jury was instructed upon three statutes alleged to have been violated by the defendants at the time of the accident. Former section 32-2199, R.C.M. 1947, now section 61-8-353, MCA, as the jury was instructed, provides in part:
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