SHANNON v HULETT
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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 Judge p r e s i d i n g . H o n o r a b l e Frank D&, BL+==? rJ Counsel o f R e c o r d : t 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: Decided: June 6 , 1 9 8 3 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 Luksha appeal the 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 Jefferson County District g r a n t i n g C h a r l e s Shannon a new t r i a l . On S e p t e m b e r 1979, 22, Court W e reverse. 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 , h i s employer H u l e t t , owned by 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 just of south order Boulder, which i n many p o r t i o n of places was 1-15 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 . e n t e r e d t h e two-lane him, highway, J u s t a f t e r he f i v e oncoming c a r s p a s s e d by 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 approaching forward he curve one o r Luksha t e s t i f i e d that saw Shannon c u t t i n g two f e e t l t appeared in his through lane of a head-on ~ 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 . an travel. c o l l i s i o n was 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 of travel. The l e f t s i d e 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 accident. from the 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 . granted a new trial without The D i s t r i c t C o u r t 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 for new trial granting M.R.Civ.P. P.2d a Shannon v . 825, 40 Court District Judges complied with s u p p o r t of trial and on in compliance 35. The February Frank this s t a t i n g t h e grounds with Hulett (1983), St.Rep. District an order Blair Court's remittitur On (retired) order by was filing same 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. appeal the order granting a new Davis memoranda for in day, Frank t h e o r d e r g r a n t i n g Shannon's motion Bulett 656 filed that and 59(f), , Mont. 1983. 1, Rule a in new Luksha 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 : 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 1. support of order procedurally proper and indicative of a c t u a l consideration given t o its decision? 2. Did granting We abused the District Court abuse i t s d i s c r e t i o n by new t r i a l ? a reverse on the its discretion in ground that setting the aside the District jury Court 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, n o t be g r a n t e d i f the jury a p p e l l a n t s contend t h a t a new t r i a l may 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 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 setting aside the verdict. Court abused its discretion in 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 f r e e from negligence. when the trailer Shannon's determination that H e was n e g l i g e n t a s a m a t t e r crossed into were inluries Shannon's lane proximately was Luksha of of law travel. 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. supporting the P.2d a verdict, is new trial substantial granted. 6 1 3 P.2d 1 0 0 7 , 37 S c o f i e l d ( 1 9 7 9 ) , 180 Mont. 1 1 7 0 ; L y n d e s v. 1 7 7 , 589 Mont may . , not evidence be Nee1 ( 1 9 8 0 ) , Srenberg v. St.Rep. there If 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 Neither may new because it a District believed one Court l i n e of t h a t which t h e j u r y b e l i e v e d . 577 P.2d Mont. 272, Mont. 5 3 6 , 326 P.2d grant a testimony trial 333. simply different frorn Yerkich v. O p s t r a ( 1 9 7 8 ) , 176 8 5 7 ; I n r e E s t a t e o f Hardy (1958), 133 692. 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, duty t o test the evidence a g a i n s t t h e v e r d i c t . L e w i s ( 1 9 6 5 ) , 144 Mont. W e jury's find verdict. there 5 4 3 , 5 4 9 , 398 P.2d opposing lane. Luksha, Campeau v . t o support the is undisputed 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 , is o u r 9 6 0 , 963. is s u f f i c i e n t evidence The e v i d e n c e it t h a t Shannon, c u t through a curve i n t h e approaching Shannon, 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 responded collision. by 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 . " Ins 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, would 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 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 finding that such action Shannon I s was Luksha further supports the proximate cause a of 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 represents new statutory violation law in Montana. without discussion. is excused The issue is concluded 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 tractor-trailer rig be actively negligent. have been. driver of the Here, he may not 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. have failed in that duty here. We
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