Unpublished Disposition, 876 F.2d 896 (9th Cir. 1984)

MEMORANDUM^* 

We consider here whether the district court erred in denying appellants' motion for new trial in this negligence case.

On October 14, 1984, Richard and Theresa Lystad travelled south on an icy and treacherous stretch of Highway 55. Darren Simonson's car, travelling north on that highway, slid across the center line and collided with the Lystads' car. The Lystads died in the accident. Simonson, who was injured, has no recollection of the event.

Appellants, the Lystads' children, sued Simonson for damages resulting from the deaths. The jury returned a verdict for Simonson. Appellants moved for a new trial. Finding that "very little evidence as to liability was presented," the court denied the motion.

To grant a motion for a new trial, the district court must find the jury's verdict clearly contrary to the weight of the evidence. Traver v. Meshriy, 627 F.2d 934, 940 (9th Cir. 1980). We shall not disturb a verdict unless, viewing the evidence in the manner most favorable to the prevailing party, we find the court abused its discretion in denying a new trial motion. Id.

First, appellants contend that Simonson was negligent per se in crossing the center line in violation of Idaho Code Sec. 49-629(1) (1988). Under Idaho law, a driver's violation of this statute creates a presumption of negligence that the defendant may rebut by evidence that compliance with the statute was impossible, conditions over which the driver had no control caused him to violate the statute, or a sudden emergency caused him to violate the statute. Mann v. Gonzales, 100 Idaho 769, 605 P.2d 947, 949 (1980).

Simonson does not dispute that he violated the statute. He asserts, however, that he rebutted the presumption of negligence by showing that treacherous road conditions over which he had no control caused him to cross the center line. Witnesses testified that the highway's bumpy and icy condition could have caused a vehicle to lose traction and slide into the opposite lane. Other witnesses testified to the difficulty they had in controlling their vehicles even at low speeds. The jury's conclusion that road conditions caused Simonson to violate the statute is not contrary to the clear weight of the evidence.

Second, appellants argue that Simonson was negligent per se for violating Idaho Code Sec. 49-681(1) (1988), which requires one to drive at a reasonable and prudent speed in light of road conditions. Witnesses estimated his speed as ranging between 25 and 45 miles per hour. Because several witnesses stated they travelled as fast as 45 miles per hour without losing control of their cars, the jury could find that this speed was reasonable and prudent under the conditions.

Officer Miller, who observed the scene after the accident, testified that Simonson was travelling too fast for conditions, but admitted he based his opinion solely on the fact that Simonson's car had crossed the center line. Appellants assert that the jury may not arbitrarily disregard the uncontradicted testimony of Miller, a credible witness. See Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575, 581-82 (1979). However, his testimony conflicted with that of other witnesses as to Simonson's speed. The jury's conclusion that Simonson did not violate the statute was not clearly against the weight of the evidence.

Finally, appellants contend that Simonson, an inexperienced driver, was negligent in driving in hazardous conditions. Simonson was only 15 at the time of the accident. He had, however, received an "A" in a driver's education course, and had gained experience by driving on roads of a California ranch since he was twelve. Appellants failed to show that his skills were inadequate.

We find that the judge did not abuse his discretion in determining that the jury's verdict was not against the clear weight of the evidence and in denying a new trial.

AFFIRMED.