Harden v. Yerger , 222 Mont. 234 ( 1986 )

No. 8 6 - 4 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IVAN D. HARDEN and DOUGLAS S.
HARDEN,
Plaintiffs and Appellants,
JOHN YERGER and PATRICIA YERGER,
husband and wife, and FARMERS UNION
ASSOCIATION, Big Horn County, Montana,
a Montana corporation,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn, 1
The Honorable G. Todd Baugh, Judge presiding. I
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COUNSEL OF RECORD:
For Appellant:
Moses Law Firm; Bruce E. Becker, Billings, Montana 1
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For Respondent: I
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Peterson, Schofield & Leckie; K. D. Peterson, I
Billings, Montana I
Berg, Coil, Stokes & Tollefsen; Gig A. Tollefsen, ' 1
Bozeman, Montana I\ 1
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Submitted on Briefs: April 30, 1986 ,
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Decided: July 8 , 1986
Jut 8 - 1986
Filed:
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Plaintiffs appeal a jury verdict entered against them
in the District Court of the Thirteenth Judicial District,
Bighorn County. The jury answered on a special verdict that
respondents were not negligent toward appellants.
Appellants state the issue as a matter of law on lia-
bility of landowners. However, they do not dispute that the
jury was correctly instructed on the applicable law at trial.
Likewise, appellants did not move for a directed verdict on
the issue of respondents' liability at trial. Therefore, the
sole issue is whether the jury's verdict that respondents
were not negligent towards appellants is supported by sub-
stantial evidence. If the verdict is supported by substan-
tial evidence in the record, we will not reverse it. See
Kleinsasser v. Superior Derrick Services, Inc. (Mont. 1985) ,
708 P.2d 568, 42 St.Rep. 1662.
We affirm.
In mid-April 1983, Walt Watson turned on a water hy-
drant while watering cattle on the Yerger property. Soon
after there was an explosion in the pumphouse. Watson turned
off the electricity to the pumphouse, and the fire was extin-
guished. No one was hurt.
Subsequently, either respondent, John Yerger, or his
father, Jake Yerger, had Joe Hanks come out to the property
with an explosion meter (a device which measures the concen-
tration of explosive gases). Hanks determined there was an
explosive condition in the pumphouse due to the presence of
gases. It was not determined, however, whether the gas was
natural gas or propane.
The respondents hired a plumber to cap and vent the
well to dissipate natural gas out of the pumphouse. At the
same time, the plumber repaired the pump. Respondents also
had a representative from their propane distributor, Farmer's
Union Association, check their propane tank and the propane
line to their trailer for leaks. The underground portion of
the line was only checked by a visual check for frosting of
the ground surface above the line. Such a check would only
reveal rapid leaks. The propane distributor could have used
more accurate means to check the line but did not. No leaks
were found.
The electric line to the pumphouse also feeds the
trailer where respondents live. Therefore, respondents were
without electricity after the fire. They hired appellant,
Ivan Harden, to wire temporary electrical service to their
trailer and to repair the damaged wiring in the pumphouse.
Ivan Harden went out to respondents' property once to provide
temporary electricity to the trailer. After the well was
vented, Ivan Harden and his son, Doug, returned to repair the
pumphouse wiring. While they were working, and while Doug
was in the pumphouse and Ivan was in the doorway, the pump
kicked on and there was another explosion. Doug was severely
burned, and Ivan was also injured.
Tom Selleck, Fire Marshall for the State of Montana,
investigated the second fire. He found that the supply line
between the propane tank and the Yerger's trailer had been
leaking. Propane, unlike natural gas, is heavier than air.
Selleck determined that the leaking propane had flowed
through the ground downhill into the pumphouse. As the
propane seeped through the ground, the malodorant leached out
so that it was without odor in the pumphouse. When the pump
kicked on, electric sparks ignited the propane.
Appellants filed a complaint against the Yergers and
Farmers Union Association for negligence. After commencement
of the trial, appellants settled with Farmers Union. The
case against the Yergers was tried before a jury.
The testimony as to which of the actors were aware of
the dangerous condition and who informed whom conflicts.
However, the jury can choose to adopt testimony offered by
one side to the exclusion of the other. See Tompkins v.
Northwestern Union Trust Co. (Mont. 1983), 645 P.2d 402, 408,
39 St.Rep. 845, 853. Moreover, we review the evidence in the
light most favorable to the party prevailing at trial. See
Gunnels v. Hoyt (Mont. 1981), 633 P.2d 1187, 1191, 38 St.Rep.
1492, 1495.
There was testimony at trial that respondents never
communicated to the appellants that working around the
pumphouse was safe. There is evidence that appellants were
aware of the potentially dangerous condition and did not take
reasonable precautions. Finally, there is evidence that
respondents took reasonable measures to discover the cause of
the dangerous condition and correct it. Therefore, the
evidence taken in a light most favorable to respondents
indicates that respondents were not negligent towards appel-
lants. That is what the jury found. We hold that there is
sufficient evidence in the record to support the jury
verdict.
We concur: