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Hall v. Big Sky Lumber11/2/1993
Rehearing Denied December 2, 1993.
, 50 St.Rep. 1345
Submitted on Briefs September 2, 1993.
This is an appeal from a jury verdict in the Eleventh Judicial District, Flathead County, finding for the defendant, Big Sky Lumber. We affirm in part and reverse in part.
We consider the following issues:
1. Did the District Court abuse its discretion in instructing the jury?
2. Did the District Court abuse its discretion in excluding certain testimony by Patrolman Monthye concerning his evaluation of the connection between the metal post he found in the ditch and the rig's brake system?
3. Did the District Court abuse its discretion in denying evidence of Normandin's citation because of defense counsel's conduct during closing argument?
This case involves a motor vehicle accident that occurred on August 19, 1985 on U.S. Highway 93 about 4.2 miles west of Whitefish, Montana. Construction was occurring at this stretch of the roadway. Both appellant Leonard Hall (Hall) and respondent Wes Normandin (Normandin) were headed west within the stretch of road under construction. Several flagpersons were located along this stretch of road. Hall was in his Ford pickup directly in front of Normandin's fully loaded logging rig. Four other vehicles were in front of Hall. A road paver with several workmen on it was also located within the area of the construction.
Normandin approached the rear of Hall's pickup going approximately 35 miles per hour. Normandin's brakes failed and he was unable to bring the loaded logging rig to a stop. The flag person located at the far end of the construction motioned the four cars in front of Hall to keep going. Hall attempted to get out of his truck because of the runaway truck behind him, but was unable to get out of the way of the careening rig. The men on the paver jumped clear of the machine and were able to retreat from the impact site. Hall's pickup was struck from behind and he allegedly suffered personal injury .
The accident was investigated by Highway Patrolman Ervin Monthye (Monthye). Monthye arrived at the scene approximately 40 minutes after the accident had occurred. Monthye checked the brakes of the tractor and found that they were warm. The brakes on the loaded trailer were not warm, indicating that they had not been engaged. Monthye noticed that the trailer brakes were covered with an orange substance. Both the regular brakes and the emergency air reservoir which enabled the emergency brake system to function had the orange substance on them.
Normandin contends that a professional checked the brakes only one and a half months before the accident and they were in good working condition. Further, he asserts that he had himself checked the entire brake system on the rig before he moved it on the day of the accident. Normandin contends that the brake failure was totally unexpected and that it must have been caused by whatever left the orange color on the brake systems.
Of possible significance was testimony at trial that while traveling through the construction site, Normandin passed a flatbed truck carrying orange colored road markers. Also, Monthye testified that following the accident an orange post was found in a ditch where Normandin's truck had finally stopped. Testimony indicated that the post was possibly from the rear end of the road paving machine and could have been knocked off when the rig rushed past the paving machine. Normandin contends that whatever caused the brake failure left the orange color on the brakes and that must have happened prior
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