Parrish v. Witt

• Decision Date: 04 November 1976
• Docket Number: No. 13264,13264
• Parties: Scott PARRISH, Plaintiff and Appellant, v. Rodney D. WITT and Shirley Witt, Defenants and Respondents.
• Court: Montana Supreme Court

Page 741

555 P.2d 741

171 Mont. 101

Scott PARRISH, Plaintiff and Appellant, v. Rodney D. WITT and Shirley Witt, Defenants and Respondents.

No. 13264.

Supreme Court of Montana.

Submitted Aug. 31, 1976.

Decided Oct. 20, 1976.

Rehearing Denied Nov. 4, 1976.

Hash, Jellison & O'Brien, Kenneth E. O'Brien argued, Kalispell, for appellant.

Warden, Walterskirchen & Christiansen, Merritt N. Warden argued, Kalispell, for respondents.

JOHN C. HARRISON, Justice.

This is an appeal from a directed verdict for defendants by the district court, flathead County.

Plaintiff Scott Parrish was visiting the mobile home of Leo McDonald in early April 1973, to help a friend move her belongings. As he walked to the mobile home from his pickup, carrying a small child, a sudden rain began. He testified that as he trotted up the wooden walkway leading to the mobile home he slipped, slid two or three feet, the walkway tilted, his foot became anchored and as he twisted to keep the child from harm, he fell, suffering a severe broken leg.

Plaintiff filed a complaint which set out two claims for relief. The first named Rodney D. and Shirley Witt, the owners of the mobile home court, as defendants. The second named the McDonalds as defendants. The second claim was settled out of court and trial was had on the first claim. That trial ended with a directed verdict for defendant owners.

These defendants, Mr. and Mrs. Witt, are owners of the Greenwood Mobile Home Terrace near Whitefish, Montana. McDonalds were tenants, living in the newly constructed portion of the mobile home court. When McDonalds moved in they brought with them a section of wooden walkway which they installed in front of the steps leading to the mobile home. As a courtesy to the tenants, because the area would become muddy as spring progressed, the manager of the mobile home court constructed and delivered additional walkway sections.

When the sections were delivered to the McDonald residence they were placed approximately in line with the other section of walkway but there was no attempt to put them in final position or stabilize them. This occurred four to six weeks prior to the accident. In the time between the delivery of the additional walkway sections and the accident, plaintiff visited the McDonald residence. Mrs. McDonald testified she had noticed these additional sections were unstable and that she had reported this to the court manager.

The issue raised on appeal is whether the directed verdict was properly granted.

In Slagsvold v. Johnson, Mont., 544 P.2d 442, 443, 32 St.Rep. 1273, 1275, this Court quoted with approval a prior case as stating the law of Montana on directed verdicts:

"* * * as a general rule, the issues of negligence and contributory negligence must be decided by the jury under appropriate instructions * * * and the settled rule is that a case should not be taken from the jury unless it follows as a matter of law that plaintiff cannot recover upon any view of the evidence, including the legitimate inferences to be drawn from it; every fact will be deemed proved which the evidence tends to prove.'

Other cases have set out this general proposition in the form of three rules: 1) The evidence introduced by the plaintiff will be considered in the light most favorable to him. 2) The conclusions sought to be drawn from the facts must follow as a matter of law. 3) Only the evidence of the plaintiff will be considered. Hannifin v. Retail Clerks, 162 Mont. 170, 511 P.2d 982; Mueller v. Svejkovsky, 153 Mont. 416, 458 P.2d 265; Pickett v. Kyger, 151 Mont. 87, 439 P.2d 57; Johnson v. Chicago, M. & St. Paul Ry.,71 Mont. 390, 230 P. 52.

The question then becomes-whether, considering only the plaintiff's evidence in a light most favorable to him, it follows as a matter of law from the facts...