*1 Appellants. MOORE, Respondent, v. JACOBSEN et al., No. 9227. January Submitted 1953. Decided June 1953. Rebearing 15, 1953. Denied December (2d) 263 Pac. 713. *2 Bottomly Adair Mr. Justice dissented.
Mr. Chief Justice and Habedank, appellant. & for Sidney, Brattin Sanders, Koch, Sidney, respondent. & Cresap orally. T. argued T. Habedank and Mr. C. Mr. Otto Sanders ANGSTMAN: MR. JUSTICE injured by being by an driven struck automobile
Plaintiff was Jacobsen, defendant, Ingolf of defendant Jacob- by Soren son by damages action sustained brought this to recover He sen. against both jury The returned verdict his favor him. $1,853.90. Defendant’s motion for a sum of the defendants they appealed judgment from and have trial was denied new on verdict. entered p. at 9 :30 m. about on November accident occurred westerly in a miles direction highway about
1950, on 3% preceding leading up The events and Fairview, Montana. from Stanley accident Plaintiff Peterson were these: and one left the Jake Latka farm after automobile work and traveled they whiskey to Fairview where at least six drinks of and had then automobile, Studebaker, started in the same to another Harvey joined farm home west of Fairview. Nelson them at Stanley journey. Fairview for the latter The car was driven Petersen; at Fairview, about miles had west 3% passed failed; over the hill brow of a the motor permitted brought to coast down hill then about feet and stop to a portion highway right- oiled hand lane traffic; point feet wide painted line; with no center while the car was thus got and Harvey car; plaintiff Nelson out attempting battery light to attach trouble located under car, hood of standing the left of the ear with head under the doing; hood in so at the direction of on the car were turned attempting off while he was to attach *3 light the battery; lights a few seconds after the were turned off Jacobsen, defendant Soren driving his car father’s company and in Inge his Elroy with brother and cousin ICet- his tleson, approached east; lights from the the on car his would not drop upon it down the car came as down the hill until within it; about 150 feet from plaintiff’s he saw on car the plaintiff when about 50 leaning feet from it and saw against the fender; front he car drove the the left lane of thinking traffic that he left a clearance of 4 about feet between right-hand the body side the car was driving he and of the plaintiff; there was evidence that defendant Soren Jacobsen had stated that he 45 traveling per hour; patrolman was about miles John Corder that defendant testified Soren Jacobsen estimated speed hour; his at 40 per miles Soren testified that he was travel- car, ing hour; 35 per passed plaintiff’s about miles as he the plaintiff right hip injuries his car causing struck on his of; complained apparently the door handle of car defendant’s plaintiff shortly struck because it dis- after accident was missing; that the handle of the door was covered defendant Soren 344 hit drove some distance realizing
Jacobsen he had someone back past plaintiff’s around and drove car and then turned badly injured; quite lying and found the road on not icy Soren Jacobsen did slippery road was and and defendant driving passed apply the he he brakes on the car was as plaintiff’s car; by tracks car indicate made defendant’s road; 2 it feet defendant was inches or left of the center those not his Soren Jacobsen did sound horn traveling approach of defendant’s with him did not observe the although distance of were on and visible more; although they approaching hear feet or neither did the car disconnected; noisy the muffler no saw it was because was one car; passed his plaintiff move as defendant’s car until passed not as testified he did move the defendant’s car step he struck, he that if he from the car did was did back “white mark.” step across the appeal. The principal questions
Defendants raise two negligence is that there first contention is no evidence of Their that in part passing on the of defendants. contention is they passed had a the Moore car left-hand lane as right evidence, however, do. shows that defendant Soren Kettleson, seeing plaintiff admit Jacobsen, Elroy as well as head under the as standing car with his hood his car given approach they passed; warning no defend any attempt speed car, nor there to slacken the ants’ passed it the Moore car. There was above ear evidence as as traveling warranting finding that it was then at about noted per negligence, along hour. These acts of with or miles complaint charged being proximate others, were injuries. The proof sufficient make cause carry case of sufficient to the case prima out a facie *4 jury. has been exercised in passing not sufficient care “Whether or stationary ordinarily question vehicle is a parked or of ’’ Practice, Cyc. Blashfield, Law of Automobile & jury. fact for 1221, 2A, p. 95. l. sec. Vo concerning the light
In the alluded to of the evidence above speed application here and warning and lack of this rule has ’ denying court did not err in motion for non-suit defendants insufficiency denying defendants’ motion for new trial for justify of evidence to the verdict. negligence shows
Defendants next contend that the evidence part plaintiff recovery. upon on the In. reliance barring of neglig- well-established rule that constitutes violation of statute per plaintiff ence se guilty contend that following particulars: That intoxicated and using exercised; person the care that a sober would have warning given approaching that no vehicles of fact highway; the stalled car was on the protect by stepping place safety made no effort to himself to a safety. exercising proper was not for his care own M. placed upon 1947, 31-108, Reliance is R. sec. amended C. by Chapter 118, 1949, part provides: Laws of which in “For purpose act, following of this committed relative acts highways operation to the use and the of motor vehicles punishable in the state of shall constitute a Montana crime * * * provided: law as hereinafter vehicle, night “4. Driving any type, suitable .without ** lights or reflectors *. Stopping, turning parking along “17. or on or the main highway traveled where such vehicle can not be seen any approaching driver other vehicle from either direction * * (500) *. within five hundred feet * * * Walking “34. on a while under the influence * * * intoxicating liquors. * * * operating upon an or over Driving “40. automobile public thoroughfare within the state highway or street or * * * liquor intoxicating while under the influence of of Montana any drug or narcotic.” in Fulton passed This statute was after the decision v. Chou- County (2d) Co., teau Farmers’ 98 Mont. 37 Pac.
346 holding stopping that highway a car on a does constitute not negligence. may
It be conceded that there is sufficient evidence to warrant finding negligence plaintiff on the part of for viola tion of R. M. 1947, C. 31-108, sec. assump as amended. On the tion that plaintiff guilty negligence it question was still a jury for the to determine whether his or that of de fendant Soren Jacobsen the proximate injuries. cause of the
Defendants contend that parked could have the car on a side it near where actually parked that road have, it could been driven and on the side road with perfect safety. The rule operator is of a motor vehicle right has the stop it on the highway purpose making for the repairs. S., 60 C. J. Vehicles, 331, Motor p. right sec. 774. This contemplated by is paragraphs 15 31-108, and 17 of section as amended Chapter 118, Laws of 1949.
Stopping highway, on the as well lights as absence of on car, are though immaterial even negligence, constitute unless such negligence proximately contributed a material degree injuries. See Albrecht Co., v. Waterloo Const. 218 1205, Iowa 183; 257 N. W. Blakely & Jones, Son v. 186 Ark. 1169, (2d) 57 S. W. 1032; Cooper Agee, 222 334, v. Ala. 132 So. 173; Webb, Miles v. 162 269, 782; Md. 159 Wales, A. Gammon v. App. 115 133, 988; Cal. 300 Becker, Pac. for Use Benefit of And Mattel, App., Becker v. 165 La. 474. So.
And what proximate injury constitutes the cause of an
ordinarily jury where, one of fact for the here, as there is opinion room for difference of among reasonable men. Marsh Ayers, 401, 80 Mont. 260 702; v. Eminger, Pac. Burns v. 84 Mont. 397, 437; 276 Berger, Pac. McNair v. 441, (2d) Mont. 15 Pac. 834; Fulton County v. Chouteau Co., 48, Farmers’ 98 Mont. (2d) 1025. Pac. jury finding was warranted in that the lights absence the car plaintiff’s injuries did not contribute since defend- actually
ant Jacobsen saw the highway Soren car on the plaintiff standing beside the car and saw would not have driven
'347 any differently his car The fact that had the been on. to be park did not road was a circumstance on the side jury, considered it as a matter law but does follow where, recovery, particularly the failure to do so bars here, the car was an not allowed to remain on length compare North time, unreasonable Davis v. Coast Transportation Co., and where Wash. Pac. it suppose had no reason take ex- would *6 tended repair properly amount of time the ear. The court question negligence the of defendant’s and the effect submitted of negligence jury. to the instructing
Defendants contend the erred in the court so jury permit recovery against Ingolf as to defendant Jacobsen exceeding in a sum application $500. The record shows father, of Soren signed by Jacobsen for a driver’s license Ingolf years defendant Jacobsen. Soren Jacobsen of age at of the time the trial in December and hence was only years age of when the accident occurred. 1947,
R. 31-131, C. M. sec. part Chap- was enacted of which as 267, ter 1947, provides: “(a) any of application Laws of person age (18) years under eighteen of instruction for an permit operator’s signed or license shall be and verified before person a by authorized to administer oaths father and both the applicant, custody mother living if both are and have of him, or parent living by person in the event neither is then guardian having by or custody such an employer or of such minor, guardian event employer or in the is no then there or by responsible person willing obliga- other is who to assume imposed person tion upon signing applica- under this act a tion of a minor.
“(b) Any negligence minor under or wilful misconduct of a age (18) years eighteen driving of when motor vehicle upon imputed person signed shall be to a has who permit license, such application of minor or which for jointly severally person shall liable be with such minor for any by damages such or wilful caused misconduct this
(except, (c) provided sub-paragraph of as otherwise section). deposited
“(c) deposits In the a minor there is event respect to upon proof responsibility in his behalf of financial operation by him, a motor or if not of vehicle owned vehicle, respect operation owner of a motor then with to the required under vehicle, motor in form and in amounts as state, then responsibility the motor-vehicle financial laws this signed may accept application minor when board of such minor, such parent guardian one or the of such and while subject proof guardian maintained parent is such shall not be liability imposed (b) under this section.” subparagraph (c) this It is contended defendants that subdivision 53-402, applicable section It. C. M. to this case makes sec. father consequence liability limit of the injury person. $500 for one Section 53-402 has since been liability except prior repealed accidents and the amount of bodily injuries $5,000. has Laws been raised to Ch. of 1951. (e)
There is no evidence that would indicate that subdivision 31-131 resorted in the case before us. The record of section deposited any proof financial does not disclose that there was *7 respect operation motor vehicle responsibility in of the any ap- $500 in the amount of or other amount at the time the license, at other time. obtain plication was made for a or To by (c) 31-13.1 subdivision of section as affected the benefits of applica- proof must made the time the 53-402, such be section is made. tion for license 31-131, to, (c) having not resorted
Subdivision of section been (b) by thereof. Under sub- governed is subdivision the case (b) Ingolf 31-131 the Jacobsen section defendant division of application any damages the minor is liable for signed of who negligence. by the minor’s caused right instructing jury as make so to
The court liable with defendant Ingolf Jacobsen Soren defendant by damages negli occasioned latter’s all Jacobsen gence. Easterly Compare Cook, App. 115, 35 Pac. v. Cal. (2d) 164; Sleeper (2d) 595, v. Woodmansee, App. 11 Cal. Rogers Pac. (2d) Utah, (2d) and 232 Pac. Wagstaff, v. (2d) A. L. R. 1316. complain
Defendants giving of the certain instructions over their objection refusing give and certain of- to instructions fered them. jury
One instruction breakdown, told the that in case of car, of a if care, may driver he use exercises reasonable the highway for purpose inspection repair or in case said, car proceed, is unable already has it From what been give was proper to this instruction. it give
Likewise following was not error to instruction: “You are instructed that ‘Reasonable Care’ does re not quire persons having legitimate business anticipate on-coming that the driver of an will see what plainly before him stop or will drive his car so that he cannot when sees an person he obstruction line his travel ordinarily when plenty he would space have time and within which injury.” to avoid
As to defendants’ offered instructions which the court refused give, it is say sufficient that they properly were refused being as either erroneous, instructions, covered other in- applicable. jury adequately correctly The were instructed on all questions essential involved in case. judgment
The is affirmed. MR. JUSTICES ANDERSON, FREEBOURN and concur. MR. CHIEF ADAIR: (dissenting). JUSTICE A important number of apparently facts overlooked in the opinion majority appear judg- to me to call for a reversal ment and to entitle the defendants rehearing to both a and a new trial in this case. testimony produced by witnesses clearly
him guilty discloses con- *8 which, injury
stituting proximate contributing and cause of law, recovery. under the bars testimony In and part, Evidence.
Plaintiff’s following his witnesses was to the effect. Stanley Petersen worked Tom Moore and one farm, 57 miles
together as farm laborers on the Jake Latka Fairview, Montana. north of town of Moore evening, 18, 1950, and and Saturday Came November Petersen, at town p. 6:00 o’clock m. took off for about automobile. Moore’s Studebaker Pettibone’s Bar Arriving Fairview two men entered thirst, they their each man tarried awhile and slaked where dozen, more, regular if not one drinking there at least half glasses whiskey. ounce “shots” or cross-examination, Stanley Petersen, plaintiff, witness stop bar, as concerning testified at the follows: “Q. Yes. You the bar? A. went to “Q. bar? A. Pettibone’s. What right. “Q. there? That is you Did have some A. drinks you many? “Q. A. six. Do how Around recall It “Q. five six? A. was You are not sure whether it was six or seven.
“Q. Not than six? No. less A. ‘‘Q. more ? A. I would Possibly you. would had not have say that. whiskey? right. A.
“Q. drinks That is they Were right. “Q. drinks? A. That One ounce tendency become in- “Q. have a to cause Did toxicated? A. No. all? I would
“Q. you intoxicated at A. Didn’t render say that, no.” night, 8 :00 9 :00 o’clock Moore
Sometime between bar, left climbed into Harvey Nelson Petersen and one the Sam Val- and started for plaintiff Moore’s Studebaker what is known proceeding westerly from Fairview on place enez *9 traveling speed “Township Road” at the estimated per about 35 miles hour. point
The At a “Township winding. Road” is curved and passes about three and it over one-half miles west of Fairview grade of a hill hundred brow and thence down for a few feet where it it slightly turns to the left from whence runs westerly on long gradually descending slope. night plaintiff’s
Sometime 9 :00 after Studebaker o’clock coming from Fairview hill passed over the brow of the above proceeded and then westerly descending slope down the of such stop hill until it northerly right-hand driving came to a lane portion place or traveled of the road at which the entire twenty-five road measured but feet width.
On his direct examination the Moore testified: ‘‘ Q. long you stop How did in Fairview ? A. an About hour. “Q. you What did indo Fairview! A. I had six drinks of * * * whiskey. “ Q. you What did after that ? do A. Started out to the farm.
“Q. you Did leave the bar and start from there? A. Yes. “Q. driving Who was at the time ? Stanley A. Petersen. ‘' Q. if anything happened What ? after that A. Well we were going down the stopped. road and the ear
“Q. stopped? Your car A. Yes.
“ Q. youDo it stopping know the reason ? No, A. I don’t. “Q. just It stopped? just A. The motor died.” Plaintiff testified that when stop his automobile came to he light obtained a seat, stepped trouble from the back out of the right door, around car, walked to the left front of the raised hood, placed his head preparatory attaching beneath light posts trouble battery whereupon cables of his ear plaintiff’s direction, Stanley Petersen turned off light switch in the car thereby extinguishing lights all the on the car. lights testified that the on his Studebaker were light on until he posts started to hook his trouble on the battery. further car’s He testified: battery cables onto
"Q. you hook the Until started to posts lights A. Yes. were on? A. Yes.
"Q. At off ? that time were turned lights off, your were ‘1Q. From time until accident the cables you to hook right? the time started From ? A. I lights were off posts happened your until the accident ready got I and when light trouble raised the hood took the lights off. I him turn the posts told hook the cables onto the * * * just I saw flash. “ thirty Q. possibly seconds say your You were out you A. hit? It could have been. were all? A. Not a
“Q. approaching at anything Did hear *10 thing. ‘‘ to watch Q. parties other car you Did instruct the two IA. did not. approaching vehicles? for ‘‘ high- Q. coming down the you If a had known vehicle posi- you to remain way have continued Mr. Moore would in? I you A. not. on the were would tion highway? A. Yes. “Q. gotten You off would have not position you did “Q. only you reason were in that The it coming? A. I never seen a any knowledge ear was have coming. coming this
“Q. words, you known car was In other had stay high- person foolish on you have considered would ** * you Yes. way knowledge, would not? A. with that you you get this want As I understand clear — —I “Q. approach- keep Nelson to watch for cars Petersen or didn’t ask A. rear? No. ing from you your under hood where
<£Q. You with head stood right. rear? A. That is see to the could your going with you standing that were to be ££Q. Knowing hood, why you request the other didn’t one or this head under A. I keep approaching look cars? out men to two it. thought never up Nelson Mr. Petersen in car
££Q. Mr. Were both standing in front No, ? A. Nelson was to the time of the accident the car. from the “Q. approaching you He didn’t warn A. He did not. rear? A. That flash? “Q. thing you recall is a say only You * * * right. night point? “Q. icy particular at the road Was * * *
ItA. was. A. “Q. on the road? spots there of ice here and there Was * ** There was. you “Q. you think were in an intoxicated condition Do whiskey? A. No. the accident from six drinks of the time of “Q. drinking? I quite You do a bit of A. do.
“Q. A. Yes. You know what results six drinks would have? “Q. regular these drinks? A. Yes. Were one ounce “Q. you? fudging bartender wasn’t A. Not a bit. ‘1Q. question this, you got ready when There is no about clasps battery posts those on the Mr. to hook instructed ’’ yourself turn ? A. I out That is what did. Petersen por- No effort was made to remove the car from the traveled Stanley Petersen, plaintiff, tion of the road. a witness for the testified:
“Q. What the first when stalled? A. reaction the ear got Tom out to fix it. o *11 “Q. you try get No, the road? A. I didn’t. Did to car off the ‘‘ Q. your you Tell us in own words what saw Tom do after got light out in his the ear stalled. A. Tom with the trouble hand. ‘‘Q. around, he ? Then what did do A. He walked and raised up the hood.
“Q. you Tell us what he did after that from what A. saw. got he around to the left hand side and then told Well me to turn lights out. “Q. you turn Did them out? A. Yes.”
354
When asked as whether driving to Petersen was car under plaintiff’s supervision testified: “Q. He driving your supervision was under and control? A. Yes. n “Q. you If something.he No., told him it? A. to do would do I say would not that.
“Q. As far driving as was concerned? A. Yes.
“Q. you If it? stop stop asked him the car he would to A. Yes.
“Q. you If park place wanted him to he car a certain park way? would it Yes, A. sir.
“Q. control, Stanley concerned, That as far as Petersen is- you say up including would existed to and time car parked highway prior on the A. to accident. Yes.
“Q. words, at, In I am getting other what if wherever the parked highway, stopped, if had not been position satisfied Stanley with that Petersen would have at- ’’ tempted change it ?you right. A. That is plaintiff’s While Studebaker was thus allowed to be and right northerly remain in the in portion traveled of the road night lantern, flare, light, darkness of the with no torch or road, other motorists in presence device to warn other of its Jacobsen, a Nash automobile driven defendant Soren westerly aged years, proceeding good with its con- dition came over the brow of the hill and then started down the westerly slope as had Studebaker time before. some Riding in the Nash with the defendant Soren Jacobsen were his 'younger Inge Jacobsen, aged years, brother cousin Elroy aged years. boys Kettleson, had attended the first picture show at motion theater Fairview and were then returning the Jacobsen home. boys trial Evidence. At the testified that
Defendants’ traveling slope speed down the it at a the Nash came per 40 miles hour and that in the darkness and about the terrain and road were unable of the character of because wholly plaintiff’s Studebaker so the road observe *12 signals sort, until the Nash warning any without fifty point about the which Soren was feet from Studebaker at Jacobsen, instantly the ex- driver, pulled the the Nash over to being southerly left and that so treme the side of the road acting he avoided contact the Studebaker. collision or with passing
The evidence that in Studebaker the the left wheels of tracks in the Nash left the snow within one foot the southerly edge of the extreme left-hand or road thus allowing plaintiff possible thereby avoiding all the road a probably between collision the cars have wrecked would both. The Accident. until passing It was not he in act of that the defendant caught sight Studebaker Soren Jacobsen standing Moore the left front darkness his car with his head tucked underneath the Studebaker’s hood rear protruding sufficiently caught and his by.the right to be passing door handle of the Nash. their Nash opposite As came front the Studebaker in passing boys, riding Nash, right heard a click door handle of their car where- upon brought Soren Jacobsen stop Nash about one fifty westerly hundred feet from spot where Studebaker parked. presence As he soon as observed the Tom Moore road, attempted Soren Jacobsen swing his Nash far enough to the left both to clear car. testified: Jacobsen
“Q. you attempt Did swing your enough car far over to the left to clear Mr. Moore’s car as well Mr. as Moore? A. Yes.
“Q. many About feet you how do believe there was between your you by? and the Moore car went on A. About four feet.
“Q. you you close edge Do know how came left hand by? edge, A. There snow the of the road as went on I suppose foot two. imagine.
“Q. ? A. a foot I What was that About edge the left think about a foot hand “Q. You there.was road? A. Yes.” of Corder,
John Montana state patrolman with more years’ than experience ten office, by plaintiff was called *13 as a witness. On his direct examination part: he testified in That he was duty night 18, 1950, on the of November and was called to the scene of the accident investigated same; and the that the road slippery icy; was then and that he the examined by tracks made the ear; Nash that as that car the came over lights hill dropped the enough they down parked so hit the car right on the road; side probably that about the time the lights parked hit the occupants car the of the Nash saw it and then the tracks of the swung left; Nash tracks did show that the driver of applied the Nash had his brakes got that "he down the right hill all applied and if he had brakes, I don’t believe he brought would have stop.” car to a
Respecting his interview immediately with Soren Jacobsen following accident, Patrolman Corder testified: "He told me he never saw the vehicle until his car came over the hill and headlights when his came sitting down he noticed a ear them, road in front of lights without he said at that time.” passed After the Nash had the Studebaker, Stanley Petersen light turned the switch in thereby again turning taillights on both the headlights. and the Soren Jacobsen turned his Nash around and returned Studebaker where he that plaintiff discovered caught had been by right severely door handle of the Nash and injured. There- boys upon the three in placing assisted in their leaving Nash and then before the scene of the accident dangerous cleared hazard and obstruction pushing the off the road. Studebaker done the defendant Soren youthful
This Jacobsen and his two companions Stanley took Tom Moore and Petersen to Dr. Merriam’s office Fairview where received emergency following medical treatment he which was taken Sidney, Thereupon Jacobsen, Montana. ambulance to Soren Elroy Stanley by Inge Kettleson, took accompanied Jacobsen and him from Fairview to the Sam in their Nash and drove Petersen place Valenez for which Petersen he headed when said happened. accident proceeding witness Corder testified that in the brow over coming the hill in after from Fairview “a car driven dark on,
with headlights lights gradually would come down as the front car came down the hill.”
Again: “By lights dropped the time his down [defendant’s] enough far parked hit the probably car he would be within one fifty hundred feet ear before the would * * * drop enough hit it A driving driver that was careful * * * prudent brakes, would not have slammed on his no. my That opinion time he used [defendant] good judgment in keeping his feet off the pulling brakes and ’’ passing left and did. as he Patrolman Corder plain- also testified that he talked with the tiff companion Stanley immediately Moore and his Petersen *14 following the plaintiff accident and that both and Petersen appeared “to in an be condition.” intoxicated Merriam,
Dr. plaintiff, also a witness for and who admin- plaintiff istered medical shortly aid to the after the accident “ Q. testified: What [plaintiff’s] his condition in reference drinking? to his A. quite say. He was well intoxicated I would Q. At the time examined A. him? Yes.” Dr. Merriam also testified that another man who came into his office at the same plaintiff brought time in was also intoxicated. The record Stanley shows person Petersen was the intoxicated whom doctor referred. undisputed
The evidence shows violated 4, provisions of 40, subdivisions 17 and of section 1 of Chapter 118, 1949, Laws of proximate which violations were a cause of the accident. plaintiff’s
Since evidence clearly guilty disclosed he of negligence constituting proximate contributing cause of injury, recovery. his the law bars Meehan Great v. R. Northern 72, Co., 80, 114 781; Harrington Butte, 43 Mont. Pac. etc., v. Ry., 169, 37 8, A., Mont. 95 Pac. 16 L. R. N. S., 395.
358
It
his
from
cannot be unfair
deal with
case
to this
Mont.
Blair,
v.
65
standpoint of his
Wilson
own statements.
170,
155,
289,
1235; Casey
Pac.
211
R.
v. Northern
Pac.
27 A. L.
Co.,
R.
Molt Northern
56,
Compare
60 Mont.
198
141.
v.
Pac.
Co.,
471,
R.
44
Pac.
Mont.
251, reversing in this court verdict for- said: speed by violation ordinance Leland constituted might charged, but defendant, employer, for which the be his equally plaintiff con so the violation of the same ordinance may negligence, and, stituted be that Leland’s violation if it said proximate might it collision, was a be cause of the so likewise contributing proximate plaintiff’s said that violation was a' Co., 1, 130 Copper cause. 47 Mont. Melville v. Butte-Balaklava 240, 239 Pepper, 236, 441.” Knott v. 74 Mont. Pac. See also 536, 779, 1037; Doorly Goodman, 529, v. 230 Pac. Pac. Mont. Quillin 781; 522, 740, 741. Colquhoun, v. Idaho 247 Pac. 521, 539, In R. 87 Mont. Co., Rau v. Northern Pacific 580, 585, affirming court in trial court Pac. this action “How- sustaining a motion a nonsuit defendant said: for ever, us, ‘the own when, as in the now before action prima presents which, unexplained, out case evidence makes fur- contributory negligence upon part, must be there facie [Citing him exculpating ther or he cannot recover. evidence ’ ” many Chicago, etc., support Grant v. authorities thereof.] Co., 97, 382, 252 Pac. R. 78 Mont. 385. (2d) 266, 97 Mont. this Mooney,
In Morton v. Pac. things plaintiff among reversing verdict other court facts, jurors judges of are the sole said: “While not there is substantial evidence in question as to whether or *15 always question is of law for support plaintiff’s the case of Ry. 97, 252 Chicago, etc., Co., 78 Mont. Pac. (Grant v. the court question, credulity ‘the determining in this of courts 382), and, facility commensurate with the or vehemence to be deemed is not “It is conceit that witness swears. a wild court which a with creditably by swearing. swearing] It is justice bound mere is
359 ’ ” Casey its judgment.” that is to conclude v. Northern Pac. Co., R. 60 56, 141, Mont. 198 Pac. 145. reversing
In
v.
Casey
R., supra,
Northern Pac.
the
court
surrounding
the
plaintiff
verdict
for
“Whenever
said:
the
story
highly improbable
circumstances make the
a witness
or incredible,
testimony
inherently
impossible,
whenever
a new trial
Physical
may point
be
should
ordered.
conditions
unerringly
so
contrary
to the truth as
room for a
to leave no
sense,
conclusion based
reason or
common
and under such
by
physical
circumstances
facts are not
tes
affected
sworn
timony
which
mere
with them.
v.
words conflicts
Groth
Thomann,
488,
110 Wis.
Under the above authorities trial refusing court erred in grant 11, reading defendants’ offered instruction No. you follows: “You are instructed that if find a preponder- from ance evidence this case that the car owned Moore Mr. stopped parked upon was main portion traveled highway adequate warning signals without approaching mo- torists, the plaintiff standing was main upon the portion traveled of said parked, while said car was so guilty negligence per se. If find negligent per se and that such proximate injuries cause of which com- plains, your verdict must be the defendant.” question
Another appellants’ objection was raised given by instruction No. as the court court’s 10% reading No. 30 instruction as follows: “You are instructed *16 if evidence herein preponderance believe from a damages from the entitled to recover is then, you may plaintiff: defendants award to the judgment Special your “1. in sum in damages such as will expenses, ex- compensate hospital physician’s him for his and in penses supplies wages, for for event medical and loss of no Eight Hundred exceed the sum One Thousand however to of Fifty-three ($1,853.90). and Dollars 90/100 damages compensate plain-
“2. in General such sum as will sustained, injury for event however to exceed tiff no ($1,000). sum of One Dollars Thousand ‘‘ any damages The total amount of not event exceed must Fifty-three Eight and the sum Two Thousand Hundred of ($2,853.90).” Dollars 90/100 objected “in that it instruction does
Defendants to such Ingolf Jacob- damages against limit the assessed the defendant $500.00.” in the" of sen sum overruling of duly assigned argued
Error and objection giving the instruction. and the of defendants’ complaint that in his demanded record shows $1,000 damages $1,853.90 damages general special and sum $2,853.90 against Jacobsen who or a total both the son Soren Ingolf and years time the accident his father old joined signed he son’s The father was because Jacobsen. R. required by license as C. M. application for a driver’s Chapter 267, Laws of originally enacted as 31-131, sec. “Providing Liability alia, for the whereof, title inter reads: Parents, Guardian or Other Person”. of Such 31-13.1, pro- (b) (c) supra, of said section Subdivisions minor negligence wilful misconduct of a “(b) Any or vide: (18) years driving when motor eighteen a age under imputed person has upon highway shall be who vehicle permit license, minor for a application of such signed severally jointly liable with such minor person be which shall or wilful misconduct any damages caused such (c) this provided sub-paragraph (except as otherwise section). upon deposited
“(e) deposits In or there the event a minor respect responsibility in proof his behalf of financial by him, if not owner operation of a motor vehicle owned vehicle, operation respect- of motor then with *17 under vehicle, required in in motor form and amounts responsibility state, this then motor-vehicle laws fincmcial of accept signed may application the board such when of minor by guardian minor, one parent such and while such or of subject is proof parent guardian such shall not be maintained or liability imposed (b) subparagraph to under of this section.” Emphasis supplied. M. 1947, 53-402,
R. C. 53-401 part Chapter secs. and are a of 4, 3, 1947, Volume originally of the Revised of and Codes were 129, Chapter 1937, enacted as Laws of title whereof states “ that the Act related to Financial'Responsibility of Motor Ve- Operators”. evidently hicle Owners and This the law referred (c) in quoted to subdivision of section 31-131 above. may
The title an to Act be considered to aid in the construction legislative etc., such Act. Farmers’, of Morrison v. Bank, State 70 225 146, 151, 123; Mont. Pac. ex rel. County State Board of County Valley 322, Com’rs of v. Bruce, 332, Mont. 77 Pac. (2d) 403. In subdivision 1 53-402, alia, of said section pro- inter it is “ ®®* : any
vided nor shall license such be thereafter issued to any registered him or vehicle motor be thereafter in his name given he proof until shall have of his ability respond damages any liability incurred, for thereafter resulting from ownership, maintenance, operation or use thereafter of a personal injury any vehicle for to or person motor death of one amount least of at five hundred ($500.00), and, dollars subject any aforesaid limit person injured for one killed, at least ($1,000.00) personal one thousand dollars for persons injury to or death of two or more in any one accident, property damage for the amount and of at least two hun- dred and fifty ($250.00) resulting any dollars from one accident. proof Such in said amounts shall be furnished for motor each vehicle registered by person.” such
R. C. 1947, M. 53-403, sec. twice refers to amount dam- ages as stated in 53-404, 5, section 53-402. Section subdivision refers specified 53-402, supra. amount in section
Subdivision part “When, of said section 53-403, reads: subject to the any limit of five ($500.00) hundred dollars for person injured one so killed, the sum one dollars thousand ($1,000.00) upon has been any judgment credited or judgments rendered in personal of that injury excess amount to or the death of than person more one as the one result of * * accident *.”
R. C. M. 53-401 53-417, repealed secs. were section Chapter 204, Laws new law is now sections Supplement. However, 53-418 to 53-458 of the 1953 Cumulative provisions said section 36 of said Act that does law apply such to accidents as here involved which occurred on 18, 1950, prior November to the enactment of the statute. Respondent cases, two Sleeper Woodmansee, cited California v. *18 595, App. (2d) 519, 521, 54 (2d) Easterly
11 Cal. Pac. and v. Cook, App. 115, (2d) 164, construing Cal. Pac. 1923, page 532, California statutes of as amended the Statutes 1929, page 522, which amended section 62 of of the California 31-131, Act, is but such section not like section R. C. M. supra; as California statute not does contain the “in words the. as required and in form amounts under finan- motor-vehicle ” state, this responsibility provided laws of as is cial in Mon- statute. tana majority opinion support
The cites the California decisions in father liable holding damages. was also for the total its of Utah, Rogers Wagstaff, (2d) v. Pac. but cites It also any statute like sections not construe 53-402 to such decisions do Code. of the Montana 53-404 plaintiff Moore and the men opinion, had two my In
n good judgment oper- exercised the same in accompanying him de- youthful displayed their ating Studebaker boys accom- younger who Soren Jacobsen and the two' fendant have Nash, could panied operating him in their the accident injured. have been happened plaintiff and the would not to rendering first aid happened when After the accident had Fairview for him back to preparing and to rush judgment boys displayed good attention, the three medical road so push the off the taking first time to Studebaker of rightfully traveling longer endanger it motorists would no thereon. plaintiff and his two rollick- in with the
The fault this case lies and not evening their in a bar ing companions spent who had evening at boys spent had their with the three stone who sober a movie. ‘‘ ’ companions boys clicking, ’—the and his The were were not. undisputed testimony plaintiff and witnesses of the negligence guilty been of which was
shows the to have contributing injuries. proximate cause of his driving permitting plaintiff’s In Such consisted: intoxicated; companion stopping- drive when both were in to it permitting stopped be in plaintiff’s automobile or reserved for portion middle road west bound ve- traffic; causing in all ordering and the auto hicles and off; failing push plaintiff’s to be turned car plaintiff’s car “tinkering” it; failing before with to have either off the road position the rear companions take of his flagging warning drivers purpose of of westbound for the road, presence of the stalled car and in vehicles any steps warning whatever toward failing take other drivers road, presence using the thereon of the un- rightfully right-hand driving so lane of lighted Studebaker road. that the above acts and omissions ample evidence There *19 proximate cause of accident. were Ingolf was not in the at Jacobsen the time The defendant of the accident nor is there that the Nash evidence was being operated for the father or His on the father’s business. liability solely was signed that of a father who had his son’s application a operate for license vehicle, a motor which liabil- ity under the Montana $500 statute could not exceed the sum of for the reasons above stated. my
In opinion, plain- under the law applied of Montana as tiff’s evidence, money judgment entered for should be reversed, trial denying court’s order a trial new should be aside, set a new trial granted, and, should be pur- such poses, the cause should be remanded to the district court.
MR. JUSTICE BOTTOMLY, foregoing concurs dissent. Rehearing.
On Motion for MR. JUSTICE ANGSTMAN: rehearing dissenting opinion the motion for
Neither nor the majority present anything was members that overlooked original joined opinion. of the court who dissenting opinion it The vice of substitutes the jury proximate views of the author for those as to injuries. plaintiff’s jury warranted in finding cause plaintiff’s drinking the evidence that did not from contribute injuries in finding to his and was warranted that the absence impact on his car the time of the was not the injuries. proximate cause of jury justified hand the from the evidence
On the other finding that defendant Soren Jacobsen’s injuries. There proximate cause of was evidence spots some ice. There was road contained not sufficient control of a ear. prevent ice to by coasting. stop point plain- On ear came to
Plaintiff’s “Q. stop, you apply Did coast to or did tiff testified: stop.” I A. coasted to your brakes? impact difficulty defendant had no after
Likewise within feet im- stopped it of where the his car. He stopping
365 negli- finding it jury pact place. The was warranted took means of some not to take part Soren gence on the Jacobsen running driving before speed the car he was slowing up the plaintiff. into far as and as apply brakes that he did not the
He testified gave speed. He nothing down his record he did to slow shows dragged Plaintiff was approach. warning to of his no impact. place 35 40 feet from or thrown about were lights plaintiff’s ear too, It that the on should be said light the trouble on the plaintiff got ready until to hook on they turned off. battery then were 15 only testified that about seconds One witness for turned off until was struck. elapsed after were have Obviously defendant Soren Jacobsen should observed proper he used care. From long car before he did had stalled parked hill car was shown to be 700 feet. the brow of the to lights the defendant’s It true that evidence shows on until it parked focused on the car was within car would not be on from it. But while the car were feet should have seen the car when within feet from defendant it, being the visible distance car and between —that by measurements. of the hill as shown top jury that it was matter was such for the The evidence proximate plain- was the cause whose determine judge injuries. learned trial heard all the The evidence tiff’s he did not see fit the witnesses and to disturb and observed justified substituting jury and neither are we verdict of jury. opinion for that of the our erred dissenting opinion takes the view court
The liability Ingolf limiting of defendant Jacobsen also in not fails there is dissenting opinion point out where $500. any deposited indicate that there was anything in the record to responsibility respect place proof time of financial provided defendant Jacobsen as operation Soren in paragraph (c) 31-131 of sec. and hence subdivision of see. 53-402, R. C. M. application. has no
The motion for rehearing is denied. ASSOCIATE JUSTICES ANDERSON, FREEBOURN and concur. Appellant Respondent.
DAVIDSON, v. LOVE et al. No. 9251. *21 Submitted December 1953. Decided December 1953. (2d) 264 Pac. 705. Justice Mr. Anderson dissented. Davidson, se, N. pro
Clarence Goza, Jr., Sam D. Helena, appellant. Olsen, Atty. Gen., Erickson, H. Sp. Atty. Arnold Leif Asst. respondent. Gen., for Davidson, Mr.
Mr. Goza and Mr. Erickson argued orally. MR. JUSTICE ADAIR: CHIEF