KUKUCHKA v ZIEMET
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NO. 85-149 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 WILLIAM A. KUKUCHKA, Plaintiff and Appellant, MICHAEL W. ZIEMET, and DOES I through V., inclusive, Defendant and Respondent. APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Rosebud, The Honorable Alfred B. Coate, Judge presiding. COUNSEL OF RECORD: For Appellant: Kelly & Halverson, P.C.; Sheehy, Prindle Patrick L. Prindle, Billings, Montana & Finn, For Respondent: Crowley Law Firm; Steven Lehman, Billings, Montana Submitted on Briefs: Oct. 10, 1985 Decided: December 20, 1985 Filed: Clerk Kr. Justice William E . the Court. Hunt, Sr., delivered the Opinion of The appellant, William Kukuchka, brought an action in the District Court of the Sixteenth Judicial District of the State of Montana against the respondent, Michael Ziemet, for negligence in the operation of a motor vehicle. jury resulted in a finding of no negligence. new trial was denied. Trial by A motion for a This appeal followed. We affirm. The issue presented for review is whether the jury verdict is supported by substantial credible evidence. At between 1981, the 12:00 midnight and appellant and a 12:30 a.m. companion were on May walking 10, in a westerly direction along First Avenue in Ingomar, Montana. They were in the right lane on the side of the road and not facing the traffic in that lane. The appellant was on the right, the companion was to his left. driving a vehicle in the The respondent was same westerly direction. The vehicle struck the appellant from behind. First Avenue, at the point where the accident occurred, was unpaved and was without sidewalks or streetlamps. time of the At the accident, it was dark, cloudy, and damp in Ingomar. The respondent was driving at between 5 and 15 miles per hour. Although the respondent's headlamps were on and aimed properly, he did not see the appellant or the appellant's companion until he was 5 to 10 feet from them. He then saw only " s h a d o w s . ' V h e companion jumped to the left and the appellant was struck by the center of the vehicle, fell on the hood, and rolled off. The appellant did not recall the clothes worn but the respondent testified that the pedestrians were wearing dark clothes and his headlamps did not "illuminate" them. The appellant's testimony placed him at the far right edge of the road. to have been The appellant argues that in order for him struck hy the center of the vehicle the respondent would have to have been driving off of the road. The first issue is whether the jury verdict is supported by substantial credible evidence. This Court will not disturb a judgment on appeal where substantial evidence to support the especially judgment appears on true when the the District record Court and has this upheld is the sufficiency of the evidence on a motion for a new trial. Keil v. Glacier Park Inc. to 455, 461, 614 The evidence wil-1-be viewed in a light most P.2d 502, 505. favorable (1980), 188 Mont. the prevailing party and, if the evidence conflicts, the credibility and weight given to the evidence is the province of the jury and not this Court. Mountain West Farm Bureau Mutual Insurance Company v. Girton (Mont. 1985), 697 P.2d 1362, 1363, 42 St.Rep. 500, 501. A verdict will be changed only when it can be shown with reasonable conviction that the jury violated the law, gave way to passion, prejudice, or partiality, made a mistake of law or fact, or acted carelessly or perversely. (1971), 156 Mont. 440, 446, 481 P.2d Dieruf v. Gollaher 322, 325. Only when there is a complete absence of probative facts does error occur. Griffel v. Faust (Mont. 1983), 668 P.2d 247, 249, 40 St.Rep. 1370, 1373. Substantial evidence is evidence such as will convince reasonable persons and on which such persons may not reasonably differ as to whether it establishes the prevailing party's case, and, if all reasonable persons must conclude that the evidence does not establish such case, then there is not substantial evidence. Cameron v. Cameron (1978), 179 Mont. 219, 228, 587 P.2d 939, 944-945. In viewing the record in a light most favorable to the prevailing party and in leaving the credibility and weight of the evidence to the facts that could jury, the record discloses probative convince reasonable respondent was not negligent. the His headlamps were on and The appellant and his companion were walking on the road, facing away clothes on a that The respondent was traveling at a reasonable rate of speed. aimed properly. persons dark night. from traffic, and wearing dark We hold that the substantial evidence test is met. Relevant to this issue is whether there is negligence as a matter of law in this case. case Aemisegger v. St.Rep. Herman 420 as being The appellant refers to the (Mont. 1985), 697 P.2d comparable here and negligence was a matter of law. 925, 42 as support for This argument is without merit as applied. to the facts in this case. In Aemlsegger there was negligence as a matter of law because the person driving the vehicle struck from behind by the other vehicle was lawfully on the road, properly stopped, did nothing to cause, and accident. Aemisegger. could do nothing that would have avoided the There was no question of comparative negligence in Here, however, the appellant was walking in the road, facing away from traffic, and wearing dark clothes on a dark night. A question of comparative negligence exists. It would be error to find negligence as a matter of law in this case as the degree of negligence is a question of fact for the jury. See, Reid v. Little (Mont. 1984), 680 P.2d 937, 940, 41 St.Rep. 644, 648. Affirmed. F e Concur: l Mr. J u s t i c e Frank B. Morrison, Jr. c o n c u r s a s f o l l o w s : I concur i n t h e r e s u l t f o r t h e r e a s o n t h a t t h e p l a i n t i f f d i d n o t move f o r a d i r e c t e d v e r d i c t on l i a b i l i t y n o r d i d t h e plaintiff request the court t o i n s t r u c t t h e jury d e f e n d a n t was n e g l i g e n t a s a m a t t e r o f under law, t h e evidence i n t h i s case, law. I that the feel that and under t h e a p p l i c a b l e t h e d e f e n d a n t was n e g l i g e n t a s a m a t t e r o f law b u t I f e e l t h a t I have no c h o i c e , g i v e n t h e s t a t e o f t h i s r e c o r d , b u t t o vote f o r an affirmance. [
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