Opinion
No. 82-31.
Submitted on Briefs April 22, 1982.
Decided September 23, 1982.
Appeal from the District Court of Park County. Sixth Judicial District. Hon. Jack Shanstrom, Judge Presiding.
Huppert Swindlehurst, Livingston, for defendant and appellant.
Robert L. Jovick, Livingston, for plaintiff and respondent.
Defendant appeals from a judgment entered on jury verdict by the Sixth Judicial District Court, Park County, Montana. We affirm.
Plaintiff brought an action alleging defendant negligently failed to close a farm gate allowing plaintiff's horses to escape onto a highway where they were subsequently killed. Jury trial resulted in a verdict for the plaintiff and the sole issue on appeal is whether there is sufficient evidence to support the verdict.
In August of 1977, defendant went to plaintiff's farm premises to return a tractor belonging to the plaintiff. It was necessary for the defendant to pass through two gates on plaintiff's premises. Plaintiff testified that defendant told him that he did not expressly remember shutting the gates, but that he did not remember leaving them open. Plaintiff's wife testified that defendant admitted leaving a gate open, but she did not remember any specific language attributable to the defendant. Defendant disputed the testimony of plaintiff's wife.
The morning following the day when defendant went to plaintiff's premises, two of plaintiff's horses were found dead on or near the highway, abutting plaintiff's farmstead. The two boys that had accompanied defendant to plaintiff's premises testified positively that defendant had closed the gates.
The issue presented for resolution is whether, under plaintiff's proof, an issue was created for the jury on liability. We hold that there was evidence from which the jury might infer that plaintiff's horses escaped as the result of defendant's negligence in leaving the gates open.
The jury need not have believed the testimony of the boys who accompanied the defendant on the day in question. Jacques v. Montana National Guard (1982), 199 Mont. 493, 649 P.2d 1319, 39 St.Rep. 1565, 1572. The jury could have believed the testimony of plaintiff's wife that defendant admitted leaving the gates open. There was the further circumstantial evidence that the horses were found dead near the roadway on the day following defendant's visitation.
This Court must view the evidence in the light most favorable to the prevailing party. Gunnels v. Hoyt (1981), Mont., 633 P.2d 1187, 38 St.Rep. 1492, 1495. Where there is substantial credible evidence to support a jury verdict, it cannot be overturned on the basis of insufficiency. Nelson v. Hartman (1982), 199 Mont. 295, 648 P.2d 1176, 39 St.Rep. 1409; Jacques v. Montana National Guard, supra.
We affirm.
MR. JUSTICES DALY, SHEA, SHEEHY and WEBER concur.