*1 through WILSON, ALLEN WELLS and his Guard a minor Appellant, Roche, ian Gloria JAMES III, SWANSON, Defendants and James Respondents. No. 13010. Dec. 1975. Submitted Feb. Decided Rehearing March Denied 546 P.2d 990. *2 Hedman, Whitefish, Morrison,

Morrison & Frank Jr., B. Whitefish, for argued, appellant.

Warden, Christiansen, Walterskirchen & Merritt N. Kalispell, Warden L. argued, Gary Christiansen argued, Kalispell, respondents.

MR. WELL HAS delivered the opinion of court. JUSTICE a This is a action old injury year personal passenger a old his father. truck driver and panel against year a from entered on a verdict in appeals judgment for a favor of both defendants and from denial of their motion new trial. Roche,

Plaintiff is Gloria and of the 14 guardian year mother old Wells Wilson. Defendants are H. Allen passenger, James driver, III, Jr., and Swanson the 15 old year James is signing his father. The father’s predicated liability son’s for a driver’s license. application of this action about accident the basis occurred forming son, Wells Allen 1972. Plaintiff’s m. on May

7:00 truck Wilson, in a 1953 GMC panel a guest passenger was III. The vehicle H. Swanson defendant driven by James the woods in area Glen “trail” through on a being driven hill, Eureka, Lake, a Montana. After descending southeast tree, trail, trail, ahit left the hit ditch intersecting vehicle Ac- windshield. through partially and propelled plaintiff femur, of the right fracture he sustained plaintiff, cording to temporarily arthroplasty performed has had a mold cup in the his right hip joint, complications involving alleviate n a total hip replacement. will require future at which at the trial the speed battleground primary to and at the time prior traveling opinion truck had speedometer accident. The varied. of the vehicle occupants accident, was observed to the truck’s shift Following Swanson, was Defendant be locked in second truck, a with a similar that in his experience permitted *3 flatbed, in was 18 the maximum second speed gear 1951 GMC vehicle, owner of the accident rebuttal the mph. previous On Fowler, with an that had a test testified he conducted Harry and the maximum speed 1953 identical GMC second mph instructed, effect, that rebuttal Fowler’s The jury of affecting weight credibility was limited of defen- for impeachment purposes evidence and defendants’ dants’ witnesses. was what plaintiff of at the trial steps

Another conflict point his acts or not for own and whether safety had taken and barred him contributorily negligent or omissions rendered of damages. recovery review on appeal: are presented

Four issues (1) have been of contributory negligence the issue Should submitted the jury?

(2) admissibility The Jr.’s the maximum in second of a concerning speed GMC truck. flatbed

(3) Error in instruction No. 6 on giving rebuttal testimony. (4) of Montana Constitutionality guest statute.

It is conceded that the district court submitted issue of to the them contributory negligence instructed that if found plaintiff was his action was they contributorily negligent barred. Plaintiff contends there is no evidence on which to instruction, base while such defendants contend there is. We hold that submission of the issue contributory error reversible under the evidence at negligence the trial. Montana’s statute requires and reckless gross negligence driver, before attaches to operation liability ordinary insufficient to negligence being render the driver liable to the 32-1113, Section passenger. R.C.M.1947. Thus as a general rule, ordinary of the negligence part will guest passenger Practice, not bar his claim. 5 Automobile Law Third Blashfield Edition, 215.51, 215.4; 1342, Secs. 215.3 and 44 ALR2d Sec. Am.Jur.2d, Traffic, 362, & Automobiles Sec. Highway p. Traffic, Am.Jur.2d, & Automobiles Sec. Highway p. 2d, Torts, Restatement Sec. p. Contributory bar, is allowed as negligence complete defense under the misconduct, doctrine of comparative when the only guest’s lack of care for his own equals the safety recklessness willfulness of Am.Jur.2d, driver. 8 & Automobiles Highway Sec. Safety, 44 ALR2d Sec. A review of the record discloses evidence of or reckless gross negligence conduct on part basis for submission passenger permitting issue to the contributory negligence jury. prejudicial effect such submission is obvious. the trial court erred permitting asserts that plaintiff *4 Swanson, to speed to as the maximum

James Jr. truck involved of a 1951 flatbed truck. The second GMC Plaintiff accident a GMC truck. panel objected in the was experiment on the that it relates to to this basis testimony laid to show that the test and foundation was 1951 GMC was similar to the 1953 GMC truck. substantially panel flatbed First, the

We find that court was not in error. district nature the misconstrues the of evidence plaintiff presented to his His relates testimony experience with a vehicle and is not a as to the results a report similar test In 110 Mont. Irion experiment. Hyde, on this Court said that a witness with a special knowledge man experience outside the be subject ordinary may to to what on state conclusion as based permitted happened facts has witness of this an area of type he observed. A possesses understand, him to as which enables one superior knowledge not, this he without could what has observed. special knowledge Mr. had with a similar has extensive vehicle experience Swanson as to and his offered an aid properly jury testimony the ac the truck was to determining traveling prior speed Second, a foundation was laid for the ad cident. properly examination Mr. mission this On direct Swanson testimony. that has been a truck driver for is ex many years, testified he vehicles, and a with a has driven perienced variety over thousand miles. He stated flatbed well one hundred GMC have that and flatbed trucks identical four speed both panel transmissions and If further foundation needed gearing. that it when he testified cross-examination completed engines. both trucks identical 248 cubic inch six cylinder had We hold the testimony admissible.

n Fowler, former Henry testimony presented of his vehicle, The substance in rebuttal. accident owner a GMC test with conducted he had was that had achieved vehicle accident identical this court gave district second of 23 mph speed testimony: Fowler’s concerning to the instruction certain presented the plaintiff are instructed “You affecting is limited Such rebuttal. *5 of the defendants’ evidence and for im- weight credibility of defendants’ witnesses.” peachment purposes the in gave The reason court this instruction is indicated to its memorandum its order a new denying plaintiff attached trial. did not time at the conference pretrial at to to time trial indicate intention call Fowler prior a witness. the Rules of Civil Procedure and spirit of the district full disclosure of witnesses practice require judge in trial. be advance of Thus Fowler could not used as a witness in case-in-chief to furnish in plaintiff’s substantive a fact proof issue. But neither the Rules Civil Procedure nor the district advance disclosure of rebuttal judge’s practice requires witnesses rebuttal, for obvious reasons. on Thus Fowler could but the instruction was to necessary prevent being considered on the same basis as those witnesses who were disclosed in advance of trial gave testimony plaintiff’s case-in-chief. So went the district court’s reasoning. view,

In our limiting instruction as a applied here sanction to f promote salutary full objective disclosure witnesses in advance of trial as required by Rules of Civil Nonetheless, Procedure. the substantive effect of rebuttal evidence cannot be diminished this manner to accomplish even the most laudable rule correct is summarized purpose. in the following from 31 Evidence 2: language § C.J.S. evidence is that which

“Rebutting is given explain, repel, counteract, or facts disprove given evidence the adverse It is which party. evidence has become relevant or im- as an portant effect of some evidence only introduced by other side. evidence means not which Rebutting evidence merely side, contradicts the witnesses on but also opposite in denial of fact some affirmative which the has answering party endeavored all prove. It embraces which tends to counteract or overcome effect legal evidence for the adverse party.” Hewett,

Also see State v. 73 Idaho P.2d State v. Mundell, Gish, 66 Idaho 158 P.2d State v. 87 Idaho Am.Jur.2d, Evidence p. § Evidence, ed, 24:1, 6th § Jones view, not have been instruction should limiting

In our circumstances. under those given of Montana’s concerns the question constitutionality The final statute, 32-1113: section *6 or vehicle released responsibility “Owner operator from or of a motor The owner when. injuries operator guest, or injuries any not be liable for any damages vehicle shall or guest by or in said motor vehicle as riding passenger person hire, to such damages and not for nor for invitation or damage unless guardian, parent passenger’s person’s the grossly and próxima tely by is caused injury directly motor vehicle.” him such operation by and reckless negligent same, similar, have been and dissimilar statutes guest various by constitutional and unconstitutional declared both reasons. variety for a For state and federal courts statutes unconstitutional holding guest decisions representative 388, 855, Merlow, 106 506 v. 8 Cal.3d Cal.Rptr. see Brown 362; 751, Bauder, 212; P.2d 518 P.2d v. 213 Kan. Henry 771; Hassett, (1974), Thompson 217 N.W.2d v. N. Dak. Johnson 1365; 19, 43 v. 96 523 P.2d Primes Tyler, v. Idaho Hagan, McGowan, 195, (1975); v. St.2d 331 N.E.2d 723 Manistee Ohio 636; 655, v. Eighth 232 N.W.2d Laakonen 394 Mich. Judicial Court, (1975), v. P.2d 574. Contra: Silver Nev. 538 District 221; 57, 117, v. Silver, Cannon 50 74 L.Ed. 280 S.Ct. U.S. Gatchell, 883; Oviatt, (1974), v. Del. 520 P.2d Utah Justice (1974), 97; (1974), Iowa 217 v. Keasling Thompson, A.2d 325 216, Lahr, N.W. 234 v. 253 Mich. N.W.2d Naudzius Badame, 168, 274 N.E.2d 49 Ill.2d Delany It in effect for over 40 years. statute has been Montana’s 195, 1931) (Ch. and has Laws of created legislature by 236, 1975). (Ch. Laws legislature now annulled been 1, cir- Under these effective July Its became repeal we cumstances decline to legislate condemned retroactively Co., Montana Horse Co. Products v. Great Northern Ry. 194, Mont. P.2d Sunburst O. & R. Co. v. Great North. Co., 216, 927, Ry. 91 Mont. aff’d 287 U.S. 53 S.Ct. L.Ed. 7(a). A.L.R. 10 A.L.R.3d Sec. district court judgment is reversed and the case remanded to the district for a new trial.

MR. CHIEF T. HARRISON and MR. JUSTICE JAMES DALY and C. HARRISON concur. JUSTICES JOHN CASTLES, MR. (specially concurring): JUSTICE I concur result not but in all that is said therein.