PACHEK v NORTON CONCRETE CO
Annotate this Case
Download PDF
No. 12084 I N THE SUPREME C U T O THE STATE O M N A A OR F F OTN 1972 , JOSEPH PACHEK, P l a i n t i f f and Respondent, -vs - N R O CONCRETE CO., OTN a corporation, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Elghth J u d i c i a l D i s t r i c t , Honorable Truman G. Bradford, Judge p r e s i d i n g . Counsel of Record: For Appellant : Smith, Ernmons and B a i l l i e , Great F a l l s , Montana. Robert J. Emmons argued, Great F a l l s , Montana. For Respondent : Hoyt and Bottomly and G a b r i e l , Great F a l l s , Montana. Richard V. Bottomly argued, Great F a l l s , Montana. Submitted: Decided : Filed : JUL 2 6 1 m 9 June 15, 1 9 7 2 Jut 2 6 1z 9 M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court , This i s an appeal from a v e r d i c t and judgment of t h e eighth j u d i c i a l d i s t r i c t , county of Cascade, Hon. Truman Bradford, presiding with a j u r y , i n favor of p l a i n t i f f Joseph Pachek and a g a i n s t defendant Norton Concrete Company. Defendant appeals from t h e judgment and d e n i a l of i t s motion f o r a new t r i a l . P l a i n t i f f brought t h e a c t i o n t o recover f o r personal i n j u r i e s r e s u l t i n g from a t r u c k and automobile c o l l i s i o n , Joseph Pachek, a man 79 years of age a t the time of t h e accident on November 25, 1969, was r e t u r n i n g t o Great F a l l s from a cabin located south of t h e town of Cascade when he became i n volved i n t h e accident. He was t r a v e l i n g on a frontage road running p a r a l l e l t o an i n t e r s t a t e highway. This road p r i o r t o t h e c o n s t r u c t i o n of t h e i n t e r s t a t e , had been t h e main highway between t h e c i t i e s of Great F a l l s and Helena. The frontage road has a hard s u r f a c e some 22 t o 24 f e e t i n width with a painted c e n t e r line. The accident occurred about s i x and one-half miles south of Cascade where a g r a v e l road leading t o T i n t i n g e r ' s Gravel P i t i n t e r s e c t s t h e frontage road. The g r a v e l p i t i s located some 1,000 f e e t from t h e frontage road. Some 76 f e e t from t h e f r o n t a g e road and between t h e road and g r a v e l p i t a r e r a i l r o a d t r a c k s which run p a r a l l e l with t h e road. A gravel road runs from t h e gravel p i t a c r o s s t h e t r a c k s t o i n t e r s e c t t h e frontage road. On t h e day of t h e a c c i d e n t , November 25, 1969, a Norton Concrete Company v e h i c l e driven by Herbert Garman, was hauling a load of g r a v e l from t h e p i t and became involved i n t h e accident with p l a i n t i f f . The v e h i c l e was a t r a c t o r p u l l i n g two t r a i l e r u n i t s and was s i x t y f e e t long, e i g h t f e e t wide and e i g h t f e e t high. On t h a t day t h r e e highway employees were p u t t i n g i n a c u l v e r t a d j a c e n t t o t h e frontage road where i t i n t e r s e c t e d with t h e road t o the gravel p i t . They had c u t h a l f of t h e entrance road i n order t o put i n t h e c u l v e r t and t o do t h i s were using a f r o n t end loader. The loader was working i n t h e borrow p i t and was v i s i b l e t o both Garman and Pachek. A s Garman drove from t h e g r a v e l p i t he stopped a t t h e r a i l r o a d t r a c k s and s h i f t e d i n t o "deep under", t h e t r a c t o r ' s lowest gear. H t e s t i f i e d h e looked up and down the frontage road e but he d i d n o t see t h e Pachek c a r . Garman t e s t i f i e d t h a t from t h e s t o p a t t h e r a i l r o a d t r a c k s he l e t t h e t r u c k r o l l forward slowly, n o t p u t t i n g h i s f o o t on t h e a c c e l e r a t o r a s he s t a r t e d towards t h e frontage road. per hour. H estimated h i s speed a t from one t o f i v e miles e He t e s t i f i e d t h a t from t h e time he l e f t t h e r a i l r o a d t r a c k s u n t i l he turned onto t h e frontage road he d i d n o t look up o r down t h e frontage road, b u t r a t h e r he was working with m i r r o r s on both s i d e s of t h e cab i n order t o see t h e wheel of t h e t r a i l e r s . He was aware of t h e c u t made by t h e highway crew and was t r y i n g t o f i t h i s v e h i c l e onto t h e h a l f of t h e i n t e r s e c t i o n l e f t by t h e c o n s t r u c t i o n crew. A s he approached t h e frontage road he d i d n o t t u r n on any t u r n s i g n a l s , and without stopping pulled onto t h e frontage road t u r n i n g i n t o t h e approaching c a r driven by Pachek, of Pachek's 1965 Lincoln The c e n t e r Continental h i t t h e l e f t f r o n t wheel of t h e t r a c t o r , which was on o r j u s t over t h e c e n t e r l i n e . The l e f t f r o n t wheel of ~ a c h e k ' sc a r came t o rest on t h e yellow l i n e i n i t s l a n e of t r a f f i c . Pachek t e s t i f i e d he was t r a v e l i n g between 35 t o 50 miles per hour a t t h e time of t h e accident. He observed the t r a c t o r and t r a i l e r s about h a l f way between the frontage road and t h e gravel p i t . When t h e t r u c k was some f i v e f e e t from t h e i n t e r - s e c t i o n , he thought t h e t r u c k was going t o s t o p but i n s t e a d i t pulled i n f r o n t of him and turned i n t o h i s d i r e c t i o n of t r a v e l . As a result of the collision Pachek received severe injuries conswing of a subdural hematoma and back and body injuries. The head injury resulted in impairment of Pachek's memory, loss of speech, dizzy spells and mental confusion. As a result, Pachek physically and mentally deteriorated and his daughter spent months with him, teaching him to speak. Montana highway patrolman Lewis Hendrickson investigated the accident, arriving at the scene approximately one-half hour after it occurred. He interviewed the two drivers and the three highway employees who were witnesses. On the basis of his obser- vations and the statements given to him, Hendrickson testified that, in his opinion, the cause of the accident was a right-of-way violation. The jury returned a verdict in favor of plaintiff Pachek and awarded him $20,00O,p;i-- ,&GI -2 . $2,- Defendant Norton Concrete Company raises 23 issues on appeal. Issues 6 through 23 all concern instructions given or refused and they will be considered together. . Issue 1 The court erred in allowing the highway patrolman to state his opinion as to the cause of the accident. no merit in this issue. We find Here, the driver,Garman, had already admitted he was negligent in entering the highway. This is not a case where there is a close question on the issue of violation of the right-of-way, and where an unfounded opinion of an expert might sway the jury one way or another. The patrolman did not testify to the ultimate question of negligence of Garman or that such negligence was the proximate cause of the injuries to Pachek, We find no invasion of the jury's province in allowing this testimony, In re ~ickich'sEstate, 114 Mont. 258, 136 P.2d 223. This Court has repeatedly held that expert opinion evidence is admissible in explaining the cause of a particular accident. Demarais v. Johnson, 90 Mont. 366, 3 P,2d 283; Lamb v, Page, 153 Mont. 171, 455 P.2d 337. Issue 2. Pachek was contributorily negligent as a matter of law and t h e c o u r t e r r e d i n denying defendant's motion f o r a directed verdict. nullifies it. This i s s u e a l s o has no merit f o r t h e evidence Here, Garman, t h e t r u c k d r i v e r , t e s t i f i e d t h a t s i t t i n g up i n h i s cab he had an unobstructed view of t h e frontage road; t h a t a f t e r reaching t h e t r a c k s he never once looked t o s e e i f t h e r e was t r a f f i c on t h e frontage road; and t h a t he pulled onto t h a t frontage road without looking. Too, he was aware t h a t v e h i c u l a r t r a f f i c on t h e frontage road would have t h e right-of-way but he f a i l e d t o a n t i c i p a t e such t r a f f i c . Under t h e s e f a c t s Pachek, who saw t h e slow moving v e h i c l e coming up t o t h e i n t e r s e c t i o n , had every r i g h t and reason t o expect i t t o s t o p and y i e l d t h e r i g h t - o f way and he received no v i s u a l o r sound warnings from Garman t h a t he was going t o p u l l d i r e c t l y out onto t h e road. The t r i a l c o u r t properly refused t o g r a n t defendant's motion. Issue 3. Defendant a l l e g e s i t was e r r o r t o permit D r . McGregor t o t e s t i f y a s t o any b r a i n damage of Pachek when he was n o t q u a l i f i e d and t h a t such statements by D r . McGreor were hearsay and incompetent, D r . ~ c ~ r e g o r testimony i n d i c a t e d t h a t he had been ~ a c h e k ' s 's physician f o r some f i f t e e n years; t h a t he t r e a t e d him a s soon a s he a r r i v e d a t t h e h o s p i t a l and throughout h i s period of recovery, Upon Pachek's a r r i v a l a t t h e h o s p i t a l , D r . McGregor diagnosed t h e subdural hematoma and c a l l e d i n a n e u r o l o g i s t f o r c o n s u l t a t i o n . The n e u r o l o g i s t , D r . Syrenne, confirmed t h e diagnosis and operated t o r e l i e v e t h e subdural hematoma. Throughout Pachek' s h o s p i t a l i z a t i o n D r . McGregor conferred with D r . Syrenne; he kept a l l t h e h o s p i t a l records except f o r t h e surgery and he examined those f o r post-operative treatment. He t e s t i f i e d h e knew t h e s u r g i c a l procedures used and by t h e records knew t h e s i z e of t h e hematoma. properly admitted. D r . ~ c G r e g o r ' s testimony was This Court r e c e n t l y held i n Klaus v. H i l l b e r r y , 157 Mont. 277, 286, 485 P.2d 54: It Medical testimony must of necessity in many instances be based on information acquired from outside sources, examinations by other doctors, nurses notes and observations, X-rays, and other tools of the profession used in making a diagnosis," We reaffirm this statement and in so holding, find no merit in defendant's issue 3. Issue 4 The court erred in denying the motion for a new . trial in that the damages of $20,000 were excessive; the evidence was insufficient to justify the verdict; and the court erred in denying defendant's motion to alter or amend the judgment. We find this issue to be without merit, Plaintiff suffered grievous injuries that necessitated surgery and considerable hospitalization, Lengthy post-hospital therapy was necessary to partially return him to some state of existence, In Wilson v. Gehring, 152 Mont. 221, 226, 448 P.2d 678, this Court set down the rule concerning this type of argument: It It has been our position in reviewing damages based on conflicting evidence, that the amount thereof to be paid for personal injury is peculiarly within the province of the jury, and we will not disturb such finding unless the result is such as to shock the conscience and understanding of the court. Such is not the case here, this judgment has reasonable support in the evidence and it should not be disturbed. (Citing cases). I I Issue 5, The court erred in refusing defendant's proposed instruction based on the doctrine of last clear chance, We find no error for such an instruction should not be given in a case involving the collision of moving vehicles where the act creating the peril occurs practically simultaneously with the happening of the accident, and where neither party can fairly be said to have had a last clear chance to avoid the accident. Story v, Cox, 130 Cal.App.2d 231, 278 P.2d 720. In addition, it is obvious from the facts that Pachek never knew of his perilous situation so that he could avoid the collision, Here, the doctrine of last clear chance has no applicability. Issues 6 through 23, Instructions given or refused, Defendant argues t h a t i n s t r u c t i o n s given i n regard t o e n t e r i n g a highway from a p r i v a t e road were i n e r r o r , b u t a l s o argues t h e d i s t r i c t c o u r t e r r e d i n r e f u s i n g t o give defendant's proposed i n s t r u c t i o n s on t h e same i s s u e , W find the instructions e given by the d i s t r i c t c o u r t were proper. Pachek was t h e d r i v e r of t h e automobile t r a v e l i n g on t h e frontage road and t h e d r i v e r of t h e t r u c k entered Pachek c a r , onto t h i s highway i n t h e face of t h e oncoming 1947, Section 32-2173, R,c.M,/ s t a t e s : "The d r i v e r of a v e h i c l e about t o e n t e r o r c r o s s a highway from a p r i v a t e road, driveway o r u b l i c approach ramp s h a l l y i e l d t h e r i g h t of way t o a 1 v e h i c l e s approaching on s a i d highway " (Emphasis supplied) . E-f Defendant contends t h e e x i t onto t h e frontage road was n o t a p r i v a t e roadway because i t was p a r t of the s t a t e right-of-way. Under t h e s t a t u t e t h i s would make no d i f f e r e n c e , because i t would be c e r t a i n l y a public approach ramp. As the s t a t u t e c l e a r l y s t a t e s , i t was t h e duty of t h e d r i v e r of t h e t r u c k , n o t Pachek, t o y i e l d t h e right-of-way. The c o u r t ' s i n s t r u c t i o n s on (1) c o n t r i b u t o r y negligence, (2) duty of t h e p l a i n t i f f t o keep a reasonable lookout f o r p o s s i b l e danger t o himself, ( 3 ) duty of p l a i n t i f f using t h e public highway t o t h e e f f e c t t h a t one who has t h e right-of-way n e v e r t h e l e s s must use ordinary c a r e t o avoid causing an a c c i d e n t , and ( 4 ) t h a t a v i o l a t i o n of t h e law i s of no consequence u n l e s s proximately causing t h e a c c i d e n t , a l l gave t h e j u r y opportunity t o determine whether o r n o t Pachek used due c a r e i n d r i v i n g h i s automobile a t t h e point and time i n question. Defendant o b j e c t s t o t h e r e f u s a l of h i s i n s t r u c t i o n which went t o t h e f a i l u r e t o produce s t r o n g e r evidence when i t was available. This was i n r e f e r e n c e t o D r . Syrenne who operated on t h e subdural hemetoma. D r . McGregor was t h e a t t e n d i n g and t r e a t i n g physician throughout t h e e n t i r e case. He f u l l y and completely explained t h e i n j u r y , t h e damage, t h e s u r g i c a l procedures i n volved, t h e treatment, and t h e prognosis. Nothing more was needed. Defendant a l l e g e s e r r o r i n denying h i s proposed i n s t r u c t i o n s r e q u i r i n g and binding p l a i n t i f f t o an a b s o l u t e duty t o e x e r c i s e h i s i n t e l l i g e n c e t o discover and avoid dangers t h a t may t h r e a t e n him. P l a i n t i f f was n o t under an absolute duty, b u t only a duty t o use reasonable c a r e . Defendant o b j e c t s t o t h e r e f u s i n g of h i s i n s t r u c t i o n s i n regard t o t h e duty of a motorist t o discover danger t h a t may t h r e a t e n him; t h a t he must look and s e e ; and t h a t he cannot ignore an obvious danger and reasonable c a r e . W f i n d no e v i e dence was submitted t o s u b s t a n t i a t e t h e claim t h a t p l a i n t i f f knew he was i n danger, nor was evidence introduced t o i n d i c a t e p l a i n t i f f d i d not use reasonable care. Defendant a l l e g e s t h e d i s t r i c t c o u r t e r r e d i n r e f u s i n g give h i s i n s t r u c t i o n i n regard t o t h e f a i l u r e of Pachek sound h i s horn t o warn t h e t r u c k d r i v e r of h i s approach. s e c t i o n involved i s 32-21-145, R.C.M. The 1947, which i n p e r t i n e n t p a r t provides: "The d r i v e r of a motor v e h i c l e s h a l l when reasonably necessary t o i n s u r e s a f e operation give audible warning with h i s horn b u t s h a l l n o t otherwise use such horn when upon a highway. II The r u l e of law on sounding a horn r e q u i r e s t h a t t h e d r i v e r have some reason t o b e l i e v e t h a t s a f e operation r e q u i r e s t h e sounding of t h e horn, Here, p l a i n t i f f believed the d r i v e r would s t o p before e n t e r i n g t h e highway. by law. He had a r i g h t t o a n t i c i p a t e he would s t o p I f t h e d r i v e r , under t h e s e circumstances, has a duty t o blow h i s horn, i t would r e q u i r e every d r i v e r a t every i n t e r s e c t road i n t h e s t a t e t o blow h i s horn, believilig t h a t t h e d r i v e r approaching t h e i n t e r s e c t i o n was going t o v i o l a t e t h e law. It was only a f t e r t h e truck was on t h e highway t h a t Pachek would have any duty i n t h i s regard and by that time the sudden emergency he faced did not require him to do a useless act. Any instruction in this regard was inapplicable to the factual situation in this case. Next, defendant argues the district court erred in refusing to give his proposed instruction preemptorily instructing the jury that it must consider ( ) negligence, ( ) contributory negli1 2 3 4 gence, ( ) damages, and ( ) proximate cause, in that order. Objectimto this proposed instruction was that it takes from the jury its constitutional right to determine which issue it wants to discuss or determine in the manner it decides, and the court does not have the province to instruct the jury in what ordek it should take up its deliberations. Since the proposed instruction was not mandatory, no error was committed. Judgment of the district court is affirmed. 3 Associate Justice -- -------~ssociateJustices.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
