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Craig v. Schell3/11/1999
APPEAL FROM: District Court of the Tenth Judicial District, In and for the County of Fergus, The Honorable John Christensen, Judge presiding.
Submitted on Briefs: June 18, 1998
I. F.F. Schell, Personal Representative of the Estate of Charles Moseman, appeals from the order of the Tenth Judicial District Court, Fergus County, which granted in part Glenna Craig's motion for a new trial. Craig cross-appeals from the District Court's order which denied in part her motion for a new trial and its prior order which denied her motion for partial summary judgment on the issue of liability. We affirm in part and reverse in part.
II. Craig raises the following issues on cross-appeal:
III. "1. Did the District Court err when it denied Craig's motion for partial summary judgment on the issue of liability?"
IV. "2. Did the District Court abuse its discretion when it denied Craig's motion for a new trial based on jury misconduct?"
V. Schell raises the following issue on direct appeal:
VI. "3. Did the District Court abuse its discretion when it granted Craig's motion for a new trial on the basis of defense counsel's comments in closing argument?"
BACKGROUND
VII. This case arose from a vehicle accident which occurred at approximately 6 p.m. on November 26, 1993, on Highway 236 between the towns of Hilger and Winifred, Montana. Craig was proceeding in the northbound lane and the Mosemans were in the southbound lane. As the Craig and Moseman vehicles approached each other, a deer appeared on the road between the vehicles. Moseman's vehicle swerved to the far right side of the road toward the barrow pit, then veered abruptly to the left. The vehicle went into a broadside skid or "yaw" and Moseman lost control of his vehicle. At some point during these events, the left front portion of Moseman's vehicle hit the deer. The Moseman vehicle continued in its yaw across the centerline of the highway into Craig's lane of travel and collided with her vehicle. Moseman and his wife died as a result of the accident and Craig was injured.
VIII. Craig filed a complaint against Schell, in his capacity as personal representative of Moseman's estate, alleging that Moseman had been negligent in the operation of his vehicle, his negligence caused the accident, and she suffered injuries as a result. Craig subsequently moved for partial summary judgment on the issue of liability and asserted that all drivers have a statutory duty to stay on the right half of a roadway when driving. She further maintained that the undisputed facts of the case were that Moseman swerved into her lane of travel and thereby breached his statutory duty and caused the collision. The District Court denied Craig's motion and the action proceeded to a jury trial. The jury returned a verdict in favor of Schell and found that Moseman had not been negligent in the operation of his vehicle.
IX. Craig timely moved for a new trial pursuant to Rule 59, M.R.Civ.P., and ยง 25-11-102, MCA, on three bases: jury misconduct, improper closing argument by Schell's counsel, and insufficient evidence to support the verdict. The District Court granted Craig's motion for a new trial on the basis of improper comments of Schell's counsel in closing argument and denied it on the remaining bases. Craig also filed a Rule 50, M.R.Civ.P., motion for judgment as a matter of law on the issue of Moseman's liability, which the court denied. Schell appeals from the District Court's order which granted a new trial, and Craig cross-appeals from the orders which denied a new trial on the basis of jury misconduct and denied her motion for partial summary jud
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