LINDBERG v LEATHAM BROTHERS INC

Annotate this Case

Download PDF

No. 83-390 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 CHARLES E. LINDBERG, et al., Plaintiffs and Appellants, LEATHAb1 BROTHERS, INC. , a Utah Corporation and THE STATE OF MONTANA, Defendants and Respondents. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable William J. Speare, Judge presiding. COUNSEL OF RECORD: For Appellants: Whalen & Whalen; Timothy J. Whalen argued, Billings, Montana For Respondents: McNamer, Thompson & Cashmore; William 8 . PlcNamer argued, Billings, Montana Allen B. Chronister, Asst. Attorney General argued, Belena, Montana Submitted: Decided : Filed: Clerk October 31, 1984 January 4, 1985 Mr. Justice John C. Court. Sheehy delivered the Opinion of the This is a wrongful death and survivorship case brought by plaintiffs against the above-named defendants in the District Court, Thirteenth Judicial District, Yellowstone C~unty. A jury returned a verdict for the defendants and judgment was entered thereon; plajntiffs appeal and we affirm. This action arises from a car-truck accident on June 30, 1980, at approximately 10:50 p.m., in which head-on a collision occurred between the car driven by Patricia A. Lindherg and a trailer truck driven by . Leatham Brothers, Inc. (Leatham) David Toland of The Lindberg vehicle was traveling north on U.S. Highway 87 and the Leatham truck was traveling south at the time the vehicles met on the Pass Creek Bridge south of Wyola, Montana. Mrs. Lindberg was killed in the collision. The existing roal! conditions were described by Janet Elwell who was driving behind the Lindberg vehicle prior to the collision. road was Rain had diminished to a light sprinkle. shiny and reflective, reducing The visibility. Centerlines and side stripes were poorly marked on the road making it diffjcult to see the two-lane highway. surface was rough. The The road zebra-striped reflective bridge marker was missing on the corner where the Lindberg car approached the Pass Creek Bridge. to the circumstances immediately preceding the fatal accident. The The driver of the truck, Toland, testified headlights of the Lindberg car were raised from low beam to high beam at approximately 150 yards from his truck. Toland turned the truck lights on bright. and back to dim to indicate the truck's lights were set on low beam. Toland testified that the Lindberg vehicle swerved into his lane, immediately before impact. There is conflicting testimony regarding the point of impact and the position of either vehicle. Testimony of the investigating patrolman, Officer Lee Graves, indicated the Lindberg car crossed the centerline and drove into the Appellants' expert witness, F. Denman Lee, a Leatham truck. physicist, reconstructed the accident and presented testimony that the collision occurred in the northbound lane. Dr. Tranel, a clinical psychologist from Billings, Montana, testified as to the visual and perceptual field available to the decedent just before the colli.sion. Dr. Tranel opined that perceptual distortion immediately prior to the accident triggered an irrational or panic response by Mrs. Lindberg causing her to swerve her car to correct the visual aberration, thus proximately causing her death. The court refused to hear Dr. Tranel's testimony as to what caused perceptual distortion. Appellants contend that defense counsel's lack of cooperation during discovery stage caused undue delay which denied appellants a fair trial. Guaranty National Insurance Co. insured both Leatham and Patricia A. Lindberg. counsel was hired Separate by Guaranty Natj-onal to represent each insured when T,eatham filed a counterclaim seeking damages against Lindberg. attempted to When Patricia Lindberg's present counsel discover facts from Guaranty National, her insurer, counsel for Lindberg hired by Guaranty National djd not release information from its investigation file until respondent Leatham had determined its position. Driver Toland's 7oq hook was never provided, even though highway patrolman Lee Graves said he either gave it to the truck driver or put reviewing it. it back in the truck after he finished Photographs taken on behalf of the decedent, and in the possession of insurance adjuster Sid Griffin, were mad-e available to the appellants only after extended delay. Appell-ants raise these issues on appeal: (1) Did the District Court commit error in excluding the expert testimony of Dr. Tranel regarding the causes of perceptual distortion encountered by Patricia A. Lindberg immediately before her death? (2) Did an abuse of the discovery process by respondent Leatham and Guaranty National Insurance Company prejudice appellants' discovery of relevant facts and evidence prior to trial and deny appellants a fair trial? (3) Did the District Court err in excluding from evidence appellants' offered exhibit nos. 133, 134, 137 and 138? (4) Did the District Court commit error in excluding exhibit nos. 117, 118, 119, 120, 121 and 122 from the jury room during del iherations, even though the exhjbits were received into evidence at the time of trial? (5 Did the District Court err in excluding from evidence appellants' offered exhibit nos. 160 and 161, when the defendant, State of Montana, had admitted the genuineness of the exhibits and a foundation had been laid to introduce the exhibits into evidence? (6) Did the District Court err in excluding appellants' offered exhibit no. 123, though the exhibit had been used by their accident reconstruction expert witness and truck driver Toland admitted his signature was on the document? DjC! the District Court (7 commit error when it disallowed testimony from defendant and witness Toland as to whether Department U.S. of Transportion Regulation No. 391-21 (10) had been complied with in hiring truck driver Toland, and in refusing to allow the jury to hear evidence with regard to the integrity of driver Toland both as a Person and a professional truck driver? (8) Did the District Court commit error when it refused to allow testimony from Charles E. Lindberq, a truck driver with 23 years experience, as to appropriate use of lights under the circumstances that prevailed when the Leatham vehicle collided with the Lindberg vehicle? (9) evidence Did the District Court err in excluding from appellants' exhibit nos. 149 through 152, photographs of the roadway where the accident occurred, taken by Charles E. JJindberg1s son a few months after the accident? (10) Did the District Court err in excluding exhibjt nos. 1 5 4 and 155, photoaraphs depicting Patricia A. Lindberg, deceased, and the appellant Paul Gerard Teaford, neither of whom were able to be present at the time of trial.? 611) Jack Did the District Court commit error by allowing Leatham, part owner of Leatham Brothers to submit testimony regarding an inspection of the condition of the headlights on the Leatham truck in January 1980? (12) Did the District Court unfairly prejudice appellants' case by revealing bias against appel-lantsrexpert witnesses and by commenting upon the evidence offered by appellants, implying the judge's opinion as to the weight such evidence merited? (13) Did the District Court commit reversible error by refusing to give appellants' offered instruction no. 11? (14) Did the District Court commit error in si~ring instruction no. 19, the State of Montana's offered instruction no. 16? (15) Did the District Court commit error in granting the respondents' joint motion for a directed verdict aqainst appellants on the claim for damages under what has heretofore been known as a survival cause of action? Did (16) allowing the the District Court jury to take an commit error by evening recess not before deliberating and consjdering their verdict and. thus deny appellants a fair trial? We note that appellants presented two separate theories of liability in this case. The first theory imposes liability on the State of Montana for failing to keep Highway 37 in proper repair and for negligently allowing unsafe conditions to exist at the time of the accident. These unsafe conditions included a bumpy and narrow roadway, poorly marked centerline and sideline, and no zebra-striped warning marker attached to the Pass Creek bridge. Appellants argue that these conditions alone or coupled with the improper light-dimming sequence of the perceptual distortion which panic response. driver, Toland, caused a in turn caused an irrational The manifestation of this irrational panic response experienced by Mrs. Lindberg was her swerving into the wrong lane and into the path of the Leatham truck. The second theory advanced by appellants is that the accident occurred in the northbound lane where the Lindberg vehicle was negligently properly crossed proceeding. the centerline collided with the Lindberg vehicle. The of Leatham the highway truck and Respondents' theory is that the Lin$.berg vehicle swerved across the centerline into the southbound lane and collided with the truck. I. DID THE DISTRICT COURT COMMIT ERROR IN EXCLUDING THE TESTIMONY OF DR. TRANEI; REGARDING THE CAUSES OF PERCEPTUAL DTSTORTION ENCOUNTERED BY PATRICIA A. LINDRERG IMMEDIATELY BEFORE HER DEATH? This issue presents the question of the scope of expert testimony and the trial court's role in regul-ating it. VII, M.R.Evid., deals with Art. opinion and expert testimony. Rule 702, provides: "If scientific, technical, or other specialized knowledae will. assist - trier - - -to the of fact understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." (Emphasis added.) 2 The facts of each case and the substance of the expert testimony offered must be considered on a case-by-case basis by the trial court to determine if the testimony falls within the rule. The proposed opinions offered by Dr. Tranel sought to establish that the perception of Mrs. Lindberg was so distorted because of the conditions created by defendants that a col.l.ison was very likely. The conditions caused the distortion and. the distortion caused Tranel was going the accident. Dr. to supply the element of causation to appellants' case. Appellants 1983), rely heavily on State v. Chapple (Ariz. 660 P.2d 1208, for the proposition that it is an abuse of discretion for the trial judge to exclude expert testimony that could possibly aid the jury in understanding a fact in issue. Appellants seek to broaden the law set forth in Chapple. The Arizona Supreme Court generally adhered to the criteria set forth in United States v. Amaral F.2d 1148. are (9th cir. 1.9731, 488 Amaral and Chapple set forth factors we believe useful in determining the admissibility testimony. The Amaral factors are: (2) proper subject; explanatory theory; of expert (1) qualified expert; (3) conformity to generally accepted and (4) probative value compared to prejudicial effect. The testimony offered in Chapple regarded the factors involved in testimony. assessing the reliability of eyewitness No opinion was rendered regarding the ultimate credibility of specific witnesses. 1222. the Chapple, 660 P.2d at Dr. Tranel was allowed to testify to fa.ctors involving perceptional distortion. He was not allowed to testify to how these factors affected Mrs. Lindberg's mental processes even a.s the expert in Chapple could not testify that the existence of an identification factor made witnesses perception or memory faulty. limited to its facts on this issue. a particular Chapple was also Chapple, 660 P.2d at 1224. We hold the trial court. acted within its discretion in limiting the testimony of Dr. Tranel. 1 . DID AN ABUSE OF DISCOVERY PROCESS EY RESPONDENT LEATHAM AND GUARANTY NATIONAL INSURANCE COMPANY PREJUDICE APPELLANTS' DISCOVERY OF RELEVANT FACTS AND EVIDENCE PRIOR TO TRIAL AND DENY APPELLANTS A FAIR TRIAL? Appellants argue that discovery abuses prevented them from obtaininq a fair trial. In Massaro v. nunham (1979), 184 Mont. 400, 603 P.2d 249, we discussed discovery abuse. That case involved a divorce action where various attempts to discover information concerning child support payments and to require production of documents related thereto were ignored by opposi.ng counsel.. We set forth some general propositions that govern: "The District Court has the inherent discretionary power to control discovery. That power is based on the District Court's authority to control trial administration. See, State v. Mecca Twin Theater & Film Exchange, Inc. (1973), 82 Wash.2d 87, 507 P.2d 1165, 1167. In controllinq discovery, the District Court must regulate traffic to insure a fair trial to all concerned, neither according one party an unfair advantage nor placing the other party at a disadvantage. State v. Boehme (196?), 71 Wash.2d 621, 430 P.2d 527, 534. "We will reverse the District Court only when its judgment may materially affect the substantial rights of the appellant and allow the possibility Wolfe v. Northern of a miscarriage of justice. Pacific Railway Co. (1966), 147 Mont. 29, 41, 409 P.2d 528, 534. We find such a situation here. "The purpose of discovery is to promote the ascertainment of truth and the ultimate disposition of the lawsuit in accordance therewith. Discovery fulfills this purpose by assuring the mutual knowledge of a . relevant facts gathered by both l1 parties which are essential to proper litigation. gickman v. Taylor (1947), 323 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451, 460." 180 Mont. at 404, 405, 603 P.2d at 251, 252. Appellants compl-ain that certain accident reports prepared by Guaranty on behalf of Leatham were not produced. The reports were prepared in anticipation of litigation. The District Court ruled that appellants did not demonstrate a substantial need for the investigative reports to require production pursuant to Rule 26(b), M.R.Civ.P. The appellants offer no substantive reasons why the reports in question should have been turned over to them; they only complain that respondents never applied for a protective order. District Court properly denied relief to Lindberg. The This ruling was made on September 1, 1982, 8 1./2 months before trial commenced. Appellants' presentation a t trial was not prejudiced by this delay. Appellants claim they were prejudiced by the fact that they were denied certain photos taken by insurance adjuster, Sid Griffin before the April 6, 1984 deposition of expert, Dr. F. Denham Lee. Appellants do not move at trial to limit inquiry or exclude the use of Dr. Lee's first deposition for impeachment. Appellants does not identify these crucial. photos by exhibit number here on appeal nor point out how they were crucial to Dr. Lee's change in position. Dr. Lee testified initial he deposition. did a lot more work after his He viewed 80 additional photos before changing his position. He had an opportunity to explain his change from the swerve theory to the theory that the Leatham truck crossed the centerline. Even if the seven so-called Sid Griffin photos were wrongfully withheld from appellants their omission does not amount to reversible error. 111. WHETHER THE DISTRICT COURT ERRED IN EXCLUDING FROM FVIOENCE APPELLANTS' OFFERED EXHIEIT KOS. 133, 134, 137, 138. The exhibits are photographs measuring approximatel-y ? 1/2 inches square taken by the county coroner. Each one depicts a separate piece of decedent's body lying on the road after the collision. properly excluded gruesome nature the they Respondents contend the trial court photographs were because inflammatory and due to their hence their probative value was outweighed by their prejudicial effect. Appellants contend the photographs showed a path of debris that allowed Dr. Lee to reconstruct the accident. photographs supported and lent credibility to Dr. The Lee's analysis and tended to disparage Patrolman Grave's version. The law regarding photographs is easy sometimes difficult to apply. to state but If the trial court determines the probative value outweighs the prejudical effect, the photographs should be admitted. 1982), 639 P.2d 507, 309 St.Rep. State v. Hoffman 29; State v. (Mont. 0'Donnell (1972), 159 Mont. 138, 496 P.2d 299. Given the gruesome nature of the photographs, their quality and size, the lack of background detail, and wealth of other photographs and information available to Dr. Lee the trial court did not abuse its discretion by excluding this evidence. IV. DID THE DISTRICT COURT COb3"IIT ERROR IN EXCJAITDING EXHIBIT NOS. 117, 118, 119, 120, 121, AND 122 FROM THE JURY ROOM DURING DELIBERATION? The above-mentioned exhibits, a map and models which aided Dr. Lee in explaining his theory, were admitted into evidence. Jt was stipulated demonstrative in nature. that the evidence is Appellants argue that this evidence was intended to go to the jury room during deliberation from the time it was admitted. Respondents urge that no objection to the admission of this evidence was made on the condition that it would not go to the jury room. The trial court did not affirmatively rule on whether these exhibits could be used by the jury during deliberations. The jury had the opportunity to view the evidence. exclusion from the jury room of these exhibits did The not material]-y prejudice the appellants' case. v. DID THE DISTRICT COURT ERR IN EXCLUDING FROM EVIDENCE LINDBERG'S OFFERED EXHIBIT NOS. 160 AND 161, WHERE THE DEFENDANT, HIGHWAY DEPARTMENT, HAD ADMITTED THE GENUINENESS OF THE EXHIBITS AND FOUNDATION HAD EEEN LAID TO INTRODUCE THE EXHIBITS JNTO EVIDENCE? Fxhibit nos. 160 and 161 are internal Highway Department memoranda that contain evaluations of specific stretches of road within the state. The memoranda include an eva-luation of the segment of road where this collision occurred. documents were drafted to assist the These Monta.na Highway Department in planning a.nd budgeting road. repair, improvement and replacement. Exhibit no. 161 shows a computer print-out that summarizes road conditions over a 5.3 mile stretch of road which includes the col-lision site. Don explained admission. Opitz, a state employee, the documents and laid a testifying at trial foundation for their The District Court excluded exhibit nos. 160 and 161. after lengthy discussion in chamhers with counsel. The State contends the excluded exhibits irrelevant, confusing, prejudicial and erroneous. were Appellants contend the exhihits tend to prove the condition of the roadway which contributed to the zccident. Rules 401, 402 and 403, M.R.Evid., provide the general framework in which this issue must be resolved. These rules state: "Rule 401. Relevant evidence means evidence having -any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would he without the evidence. Relevant evidence ma.y include evidence bearing upon the credibility of a witness or hearsay declarant." "Rule- 402. All releva.nt evidence is admissible, except as otherwise provided by constitution, statute, these rules, or other rules applicable in the courts of this state. Evidence which is not relevant is not admissible." - 403. Although relevant, evidence may be "Rule excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consi.derations of undue delay, waste of time, or needless presentation of cumulative evidence." These exhibi-ts are relevant. They tend to show the general condition of the highway which was a material issue in the appel-lants' case against the State of Montana. The argument of the Highway Department th3.t the printouts were too prejudicial or confusing is without merit. The Hi9hwa.y Department was afforded ample opportunity to present the factual evidence expl-aining the cross-examination of argument. reports to sta.te employee Opitz the jury and. in in final The view that the jury would be misled and would. not take into account the photographs of the road and other evidence or be able to sort out the d.ifferent theories of the case is very paternalistic and shows a lack of confidence in the intelligence and common sense of the average juror. The trial court erred by not admitting this evidence. However, given all of the evidence admitted concerning the road conditions, the error did not material]-y prejudice appellants' case and i.s harmless. VI. DID THE DISTRICT COURT ERR IN EXCLUDJNG LINDBERG'S OFFERED EXHIBIT NO. USED BY 123, EVEN THOUGH THE EXHIBTT HAD BEEN THEIR ACCIDENT RECONSTRUCTION EXPERT WITNESS AND TRUCK DRIVER TOLAND ADMITTED HIS SIGNATURE APPEARED ON THE DOCUMENT? Exhibit no. 123 is a receipt or bill of lading which was signed. by driver Toland when he picked up his load before he left Seeley Lake. Appellants argue the document should have been admitted because it wa-s used to impeach driver Toland. Appellants also assert that the credibility of Dr. Lee was damaged by respondent's counsel's assertion that exhibit no. 123 contained unreliable hearsay. Driver Toland was confronted with exhibit no. 1 2 3 . admitted signing it. Appellants' document into evidence. counsel offered He the The trial court did not admit it. At the time exhibit no. 1-23 was rejected, Toland had not yet made the prior appellants' brief. inconsistent statement referred to in Jn fact, the inconsistency was elicited by respondent's counsel. Appell-ants made no further effort to use exhibit no. 123 to impeach Toland or attempt to have it admitted as evidence. We find no error. DID THE DISTRICT COURT COMMIT REVERSIBLE: ERROR T7II. WHEN IT DISALLOWED THE TESTIMONY FROM WITNESSES LEATHAM AND TOLAND AS TO WHETHER US. DEPARTMENT OF TRAP~SPORTATION REGULATTON NO. 391-21 (10), HAD BEEN COMPLIED WTTF IN HIF.ING TOLAND AND IN REFUSING TO ALLOW THE JURY TO HEAR EVIDENCE WITF REGARD TO THE INTEGRITY OF DRIVER TOLAND BOTH A PERSON AND A PROFESSIONAL TRUCK DRIVER? The U.S. 391-21, Department of Transportation Regulation No. requires that the employer submit information concerning employees who drive tractor-trailer rigs on the highways. The information is basically the same as required on most job applications. The information contained in this form shows that Toland had been fired from a bus-driving job for being late for work. This evidence is relevant only to prove a character trait of driver Toland, to-wit: employee. proscribed. He is an irresponsible Character evidence of this nature is specifically See Rule 404, M.R.Evid. This evidence has no bearing on truth or veracity. does not tend to prove Toland is untruthful. M.R.Evid. It See Rule 608, Appellants misconstrue what is meant by putting ones character into incorporates the issue. Rule time-honored 404 (a)(11, practice of M.R.Evid., allowing the accused in a criminal case to introduce evidence of his good character. The prosecution may then rebut the same. The rule has no application in civil cases unless the character trait is an defense. essential element of the charge, claim, or A character trait of tardiness is not an essential element of an action alleging negligent driving. VIII. DID THE DISTRICT COURT COMBIT REVERSIBLE ERROR WHEN IT REFTJSED TO ALLOW TESTIMONY FROM CHARLES E. LINDBERG, A TRUCK DRIVER OF 23 YEARS EXPERIENCE, ON THE APPROPRIATE IJSE OF LIGHTS IJNDER THE CIRCUMSTP.NCES THAT PREVAILED WHEN THE TRUCKING COMPANY VEHICLE COLLIDED WITH THE LSINDBERG TTEHICLE? Appellants argue that the testimony of the decedent's husband, and appellant, should have been allowed because it would assist the trier of fact in understanding the customs and accepted driving tractor/trailer drivers. not qualifiei!, practices of over-the-road Respondents argue that Lindberg was facts not in evidence were assumed, and that the subject matter was within common knowledge of the jury. The trial court must exclude expert testimony if the subject is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness, but if the matter is suffici-ently beyond common experience that the opiri.on of the expert would assist the trier of fact the court must admit the evidence. State v. Howard (1981), 195 Mont. 400, 404, 405, 637 P.2d 15, 17. We defer to the discretion of the trial. court in finding no error here. IX. DID THE DISTRICT COURT ERR IN EXCLUDING EVIDENCE OF LINDBERGS' EXHIBIT NOS. 149 THROUGH 153, WHICH ARE PHOTOGPAPHS OF THE ROADWAY WHERE THE ACCIDENT OCCURRED, TAKEN BY CHARLES E. LINDBERG'S SON A FEW MONTHS AFTER THE ACCIDENT? The photos depict the roadway and the scraggy remains of a bush off the side of the road. The bush photographed hears no resemblance to the way it looked in full bloom on June 30, The photograph does not tend to prove, disprove, or 1980. support any material fact in the case. prove the location of a bush. admissible photos. It only tends to The bush is depicted in other The evidence is irrelevant and repetitive and its exclusion was properly within the discretion of the trial court. X. 154 and DID THE DISTRICT COURT ERR IN EXC1,UDING EXHIBIT NOS. 155, PHOTOGRAPHS DEPICTING PATRICIA A. LINDBERG, DECEASED, AND AN APPELLANT, PAUL GERARD TEAFORD, NEITHFR OF WHOM WERE ABLE TO BE PRESENT AT THE TIME OF TRIAL? One exhibit shows a happy and healthy Patricia Lindberg with her son and, the other shows her with her class of Wyoming school children. The photos were offered to prove Mrs. Lindberg was in good health. The photo of decedent and her son was taken in 1976 and the class picture in 1973. The discretion of the District Court again is the reason we find no basis to this claim of error. The District Court, as we have said many times, has broad discretion in the matter of admitting relevant evidence. XI. DID THE DISTRICT COURT COMMIT REVERSIBLE ERROR BY AL1,OWING JACK LEATHAM, PART OWNER OF LEATHAM TO SUBYIT TESTIMONY REGARDING AN INSPECTION OF THE CONDITION OF THE HEADLIGHTS OF THE LEATHAM TRUCK IN JANUARY 1 9 8 0 ? Appellants claim the testimony of Jack Leatharn should have been stricken because the matters testified to were not within his personal knowledge and the testimony was hearsay. Leatham testified that the truck involved in the collison was inspected and this inspection included the head lights. Leatham had no personal knowledge that the headlights on this particular truck were inspected. based on hearsay. His testimony was By definition, "hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the - matter Rule 801 (c), M.R.Evid. asserted. If Hearsay is inadmissible except as otherwise provided by statute, the Montana Rules of Evidence, or other applicable in the courts of this state. rules Rule 802, M.R.Evid. Leatham did not acquire his knowledge that the truck was inspected from personal observation but from a document in the company records. An out-of-court statement, the document, was made and repeated in court by Leatham to prove the truth of the matter asserted, to-wit: that an inspection of the lights were made in January 1980. Leatham attempted to introduce this document to prove his testimony but the matter was dropped when the evidence was admitted. This document was itself hearsay but could. have been admitted under the "records of regularly conducted activity1' exception M.R.Evid., did not to the hearsay rule, if a proper foundation were laid. pursue admission of their Leatham's objection and testimony, we Rule 803 ( 6 ) , Since appellant acquiesced to the find no reversible UNFAIRLY PREJUDICE error. XII. DID THE DISTRICT COURT LINDBERG'S CASE BY REVEALING TO THE JURY ITS ETAS AGAINST LINDBERG'S EXPERT WITNESSES AND BY COMMENTING UPON THE EVIDENCE OFFERED BY LINDRERG IMPLYING TTS OPINION AS TO THE WEIGHT SUCH EVIDENCE MERITED? Appellants contend that the trial court prejudiced the jury by its comments to appellants' expert witnesses and comments on the evidence. After reviewing the instances cited by appellants in their brief and looking at the record as a whole, we find no showing of bias that could be imputed to the District Court. XIIL. DID THE DISTRICT COURT COMMIT REVERSIBLE ERROR BY REFUSING TO GIVE LINDRERG'S OFFERED INSTRUCTION NO. 11? Appellants' offered instruction nos. 1 0 and 11 quoted federal and state laws which concern headlights at night on. the highway. the dimming of The court gave instruc- tion no. 1 0 but refused to give instruction no. 11. instructions are related and are set forth: 10.1 Federal Motor Carrier "[Instruction no. Safety Regulations as prescribed by U. S. Department of Transportation, Federal Highway Administration; Section 392.23, provides: "'Sec. 329.32 Upper and lower head-lamp beams. During the time when lighted l-am.ps are required, every driver shall obey the following: " (a) Upper beam. He shall use the upper distribution of light when there is no oncoming vehicle within 5 0 0 feet: Provided, however, that a lower distribution of light may be used when fog, dust, or other atmospheric conditions make it desirable for reasons of safety, and when within the confines of municipalities where there is sufficient light to render clearly discernible persons and vehicles on the highway at a distance of 5 0 0 feet ahead; "(b) Lower beam. When within 5 0 0 feet of an on-coming vehicle, he shall use a distribution of light or composite beam so aimed that the glaring rays are not projected into the eyes of the on-coming driver and such distribution of light shall also be used when following another vehicle within 5 0 0 feet.' "If you find David Toland, the driver of the Leatham Brothers', Inc. truck violated the above Both section at or about the time of the happening of the accident in this case, then such violation may be considered by you in determining whether or not there was negligence upon the part of the defendant, Leatham Brothers, Inc., a Utah corporation." "[Instruction no. 11.1 provides : Section 61-9-221(1), MCA, "'61-9-221. Use of multiple beam road lighting equipment. Whenever a motor vehicle is being operated on a roadway or shoulder adjacent thereto during the times specified in 61-9-201, the driver shall use a distribution of light, or composite beam, directed high enough and of sufficient intensity to reveal persons and vehicles at a safe d.istance in advance of the vehicles, subject to the fol.lowing requirements and limitations: " (1) Whenever the driver of a vehicle 2pproaches an oncoming vehicle within 1,000 feet, such driver shall. use a distribution of light or composite beam so aimed that the gl-aring rays are not projected into the eyes of the oncoming driver. The lowermost distribution of light specified in 61-9-220(2) shall be deemed to avoid glare at all times, regardless of road contour and loading.' "The times specified in Sec. 61-9-201, as applicable to this case, is at any time from one-half hour after sunset to one-half hour before sunrise. "Secti.on 61-9-220 ( 2 ) provides : , Montana Code ~nnotated, " ' ( 2 ) There shall be a lowermost distribution of light, or composite beam, so aimed and of sufficient intensity to reveal persons and vehicles at a distance of at least 100 feet ahead; and on a straight level. of road under any condition of loading none of the high-intensity portion of the beam shal.1 be directed to strike the eyes of any approaching driver.' "If you find from the evidence in this case that David Toland, the driver of the Leatham Brothers, Inc. truck, operated the truck in violation of the sections above quoted of the Montana Code, you are instructed - - conduct was negligence - that such as a matter - of law. "However, in this action, a viol-ation of law is of no consequence unless it was a proximate cause of the death of Patricia A. Lind-berg. I ' (Empha.sis added. ) The trial court refused to give instruction no. because it referred only to driver Toland. 11 Appellants point out that the proposed instruction mentions that violation of the statute must be a proximate cause of Mrs. Lindberg's death. They argue that it was not prejudicial Leatham never raised to Leatha.m because the contention that the 1igh.t~on Mrs. Lindberg's car blinded Toland and. that this in some way contributed to the collision. These points are well taken but considering the fact that the court gave appell-ants' instruction no. 10, we find no reversible error. Instruction no. 10 is a fair statement It sets forth the duty of driver TolanC! with of the law. regard to dimming his lights. instruction no. This instructi-on differs from 11 in that it states a violation of the regulation may be considered in determining negligence where violation of the Montana statute is declared neal-igence as a matter of law by the language of instruction no. 11. It would have been preferable for the District Court to instruct on the Montana statutes as they pertain to the use of high and low beams of headlights at night. However, the instruction given is sufficiently consonant with the statutes that the jury could not have been misled. Therefore we find no error here. XIV. ERROR IN WHETHER THE DISTRICT COURT COMMITTED REVERSIBLE GIVING INSTRUCTION NO. 19, STATE OF MONTANA'S OFFERED INSTRUCTION NO. 16? Instruction no. 19 given by the court is quoted in part from the language of section 61-8-321, MCA, and reads as follows: "You are instructed that Montana law requires as follows: 'Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway. ' "If you find from the evidence that a party to this action conducted his or herself in violation of the law just read to you, you are instructed that such conduct was negligence as a matter of law. "However, in this action, a violation of law is of no consequence unless it was a proximate cause of an injury." Appellants object to the instruction because section 61-8-321, MCA, was not set forth in its entirety and hence appellant was prejudiced. The remaining portions of the statute not quoted in the instruction are irrelevant. Section 61-8-321, MCA, in unabridged form states: " (1) Upon all roa.d.ways of sufficient width a vehicle shall be driven upon the right half of the road.wzy, except as follows: "(a) when overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement; "(b) when the right half of a roadway is closed to traffic while under construction or repair; "(c) upon a roadway divided into three marked lanes for traffic under the rules applicable thereon; or "(dl upon a roadway designated and signposted for one-way traffic. " (2) Upon all roadways any vehicle proceeding at 1-ess than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway except when overtaking and passing another vehicle proceeding j n the same direction or when preparing for a left . turn. at an intersection or into a private road or driveway. I' Appellants complain that giving instruction no. 19 had the effect of exonerating the State of Montana by making Lindberg or Leatham negligent per se. comparative fault was given. An instruction on The jury was not instructed to disregard any negligence on the part of the State of Montana, only that both parties involved in the collision must drive on the right side of the road. The court did not err in giving this instruction. DID THE COURT COMMIT REVERSIBLE ERROR TN GRANTING XV. THE RESPONDENTS' JOINT MOTION FOR DIRECTED VERDICT AGAINST APPELLANTS ON THE CLAIM FOR DAMAGES UNDER WHAT HAS HERETOFORE BEEN KNOWN AS A SURVIVAL CAUSE OF ACTION? This issue involves the damages allowable in a survival action. The appellants reexamine the doctrine apparently that a ask this Court to decedent must live "an appreciable amount of time" in order for a survival action to accrue. See Stephens v. Brown (1972), 160 Mont. 453, 457, 503 P.2d 667, 670; Dillon v. Great Northern Ry. Co. (1909), 38 Mont. 485, 496, 100 P. Survival Action Mont.L.Rev. in - 960, 963; Smith, Thoughts on Montana and - Related Matters, 41 165 (1980). Since the jury found that respondents were not liable and we affirm their verdict, the above issue is moot a.nd left . for another da.y XVI . DID THE DISTRICT COURT COf?IMIT ERROR BY MOT ALLOWING THE JURY TO TAKE A RECESS BEFORE DELIBERATING AND CONSIDERTNG THEIR VERDICT AND THUS DENY APPEJJL,ANTS A FAfR TRIAI, ? Appellants cannot be heard here on appeal to complain about a tired jury heing sent to deliberate when they did not object at trial. The trial cou.rt should consid-er the hour and condition. of the jurors before sending them to deliberate. It is the duty of the trial court acting within its sound discretion not to allow the jury to begin deliberations under conditions that would prejudice either party. No objection was raised a n d w e h a v e no grounds t o find i n h e r e n t p r e j u d i c e a t trial, to t h e a p p e l . l a n t s . A£ f i r m e d . , > i './ W e Concur: Justices ,f j Justice f

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.