ELLIOTT v HANSEN
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No. 12435 I N THE SUPREME C U T O THE STATE OF MONTANA OR F 1973 JOHN A. ELLIOTT, P l a i n t i f f and A p p e l l a n t , R S U M. HANSEN, AM S Defendant and Respondent. Appeal from : D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t , Honorable W. W. Lessley, Judge p r e s i d i n g . Counsel of Record: For Appellant : Morrow, Nash and Sedivy, Bozeman, Montana Edmund P. Sedivy , Jr argued, Bozeman, Montana . For Respondent : Berg, Angel, Andriolo and Morgan, Bozeman, Montana Richard Andriolo argued, Bozeman, Montana Submitted: December 4 , 1973 M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court. This i s an a c t i o n f o r damages s u f f e r e d i n an automobile collision. The a c t i o n was t r i e d i n t h e d i s t r i c t c o u r t of t h e e i g h t e e n t h j u d i c i a l d i s t r i c t , G a l l a t i n County. P l a i n t i f f , John A. E l l i o t t a p p e a l s from t h e f i n a l judgment of t h e d i s t r i c t c o u r t e n t e r e d on a j u r y v e r d i c t i n f a v o r of defendant Rasmus M. Hansen. A t approximately 8:30 a.m. on June 11, 1970, automobiles d r i v e n by t h e l i t i g a n t s h e r e i n c o l l i d e d n e a r Bozeman, Montana, a t t h e i n t e r s e c t i o n of U.S. known l o c a l l y a s t h e o our Highway 191 and S t a t e Highway 291, Corners". The Four Corners i n t e r s e c t i o n was c o n t r o l l e d by a s t o p s i g n a t each of i t s f o u r e n t r a n c e s ; a f l a s h i n g r e d l i g h t was suspended over t h e c e n t e r of t h e i n t e r s e c t i o n ; and on t h e r o a d s approaching from t h e south and from t h e e a s t ( t h e roads upon which Hansen and E l l i o t t , r e s p e c t i v e l y , were t r a v e l i n g ) f l a s h i n g yellow l i g h t s were p o s i t i o n e d about 1,000 f e e t ahead of t h e "four way" s t o p s i g n s . Weather c o n d i t i o n s were c l e a r on t h a t morning and v i s i b i l i t y was good. The t e r r a i n and surroundings a t t h e Four Corners were such t h a t from t h e s t o p s i g n a t e i t h e r t h e south o r e a s t e n t r a n c e t h e r e was an u n r e s t r i c t e d view of o t h e r approaching c a r s p r a c t i c a l l y a s f a r a s t h e eye could see. E l l i o t t t e s t i f i e d t h a t p r i o r t o t h e a c c i d e n t he approached t h e i n t e r s e c t i o n headed w e s t , made a complete s t o p a t t h e s t o p s i g n , looked i n a l l d i r e c t i o n s and, s e e i n g no c a r s coming o r stopped a t t h e o t h e r s t o p s i g n s , e n t e r e d t h e i n t e r s e c t i o n and began making a l e f t turn. Quoting from ~ l l i o t t ' stestimony: "Q. Was anybody stopped a t any of t h e o t h e r f o u r s t o p s i g n s ? A . No. "Q. Well, then what d i d you do? A . I proceeded i n t o t h e i n t e r s e c t i o n , and then turned l e f t t o go south t o West Yellowstone. A t anytime a f t e r you had l e f t t h e s t o p s i g n , d i d "Q. you e v e r observe M r . an sen's v e h i c l e ? A. No. n o t u n t i l I s t a r t e d t o t u r n l e f t and looked s o u t h down t h e road. "Q. I saw this car coming at me. What did you see? A. This car was coming from south to north; is that 11Q. correct? A. That is correct. 11 Hansen testified that prior to the accident he approached the intersection headed north, made a complete stop at the stop sign, looked in all directions and, seeing no cars approaching or stopped at the other stop signs, entered the intersection intending to proceed straight through and continue north. Quoting from ans sen's testimony: II Q. Were there any cars in the intersection when you started up? A. No, not when I started; nope. "Q. Then what occurred as you entered the intersection and were moving through the intersection? A. Well, I just got started and then I seen this car coming. And I swerved to the right and tried to avoid hitting him straight on. "Q. Now, when you saw this car, did you have much time? A. I didn't have probably one or two seconds. "Q. A. In other words, it was almost instantaneous? hat's right. "Q. What did you do as soon as you saw it? A. I kind of braced myself. I suppose I must have stepped down on the accelerator a little more and I swerved to the right as quick as I could. What was the purpose of bracing yourself? A.Wel1, I IQ. it is just a habit, I guess; I don't know. You knew there was going to be a collision of some kind." Elliott estimated hisspeed at the time of the collision at ten to fifteen miles per hour. Hansen in answer to a pretrial interrogatory stated that his speed was five to ten miles per hour at the time of the collision. However, Hansen testified at trial that he had not looked at his speedometer immediately prior to the collision and did not actually know his speed at that time. He testified that subsequent to answering the interrogatory and prior to trial, he had made practice runs at the Four Corners intersection in a similar car, and based on those experiments he revised his estimate of his speed at the time of impact to twenty to twenty-five miles per hour. Hansen also testified the collision impact knocked him to the floor of his car and may have caused him to continue holding the accelerator down after the collision. Montana Highway Patrolman Austin Carey, who i n v e s t i g a t e d t h e a c c i d e n t , t e s t i f i e d t h e c a r s impacted i n t h e n o r t h - e a s t The E l l i o t t c a r quadrant of t h e i n t e r s e c t i o n n e a r t h e c e n t e r . was s t r u c k n e a r l y broadside on t h e l e f t s i d e by t h e l e f t f r o n t end of t h e Hansen c a r . The l e f t s i d e of t h e E l l i o t t c a r was demolished and t h e c a r was spun around n e a r l y 80 degrees, coming t o r e s t near t h e c e n t e r of t h e i n t e r s e c t i o n . The l e f t f r o n t end of t h e Hansen c a r was s e v e r e l y damaged, t h e fender and bumper being bent u n t i l they impinged on t h e l e f t f r o n t t i r e . The only s k i d mark a t t h e scene of t h e accident was l e f t by t h e l e f t f r o n t t i r e of t h e Hansen c a r , which t r a v e l l e d on about f o r t y - n i n e f e e t t o t h e n o r t h e a s t corner of t h e i n t e r s e c t i o n , crashed through and came t o r e s t atop a cement and s t e e l guard r a i l . Both Hansen and h i s w i f e , who was t h e only passenger, were shaken but n o t s e r i o u s l y i n j u r e d . E l l i o t t , alone i n h i s c a r , s u s t a i n e d a severe i n j u r y t o h i s l e f t h i p which r e q u i r e d s u r g i c a l replacement of t h e h i p j o i n t . The c a s e was t r i e d t o a j u r y , and judgment was entered on a v e r d i c t i n favor of defendant Wansen. From t h a t judgment and from t h e t r i a l c o u r t ' s d e n i a l of motions f o r a judgment notwithstanding t h e v e r d i c t and f o r a new t r i a l , p l a i n t i f f E l l i o t t b r i n g s t h i s appeal, assigning t h e s e i s s u e s : (1) Did t h e t r i a l c o u r t e r r i n g i v i n g i n s t r u c t i o n No. 7 on c o n t r i b u t o r y negligence? (2) Did t h e t r i a l c o u r t e r r i n giving i n s t r u c t i o n No. 9 on continuing and concurring negligence? (3) Did t h e t r i a l c o u r t e r r i n r e f u s i n g p l a i n t i f f ' s o f f e r e d i n s t r u c t i o n 6 concerning E l l i o t t ' s r i g h t t o assume Hansen would use reasonable c a r e ? (4) Did t h e t r i a l c o u r t e r r i n r e f u s i n g t o g r a n t p l a i n t i f f ' s motions f o r a new t r i a l , and judgment notwithstanding t h e v e r d i c t ? Concerning t h e f i r s t appeal i s s u e , p l a i n t i f f r e l i e s h e a v i l y on DeVerniero v. Eby, 159 Mont. 146, 148, 496 P.2d 290, i n con- t e n d i n g t h a t a c o n t r i b u t o r y n e g l i g e n c e i n s t r u c t i o n w a s improper under t h e f a c t s of t h e i n s t a n t c a s e . An important f a c t u a l d i s t i n c t i o n e x i s t s between t h e c a s e s . I n DeVerniero: II The i n t e r s e c t i n g s t r e e t s were o f e q u a l s t a t u s and were n o t marked w i t h s t o p s i g n s , s t o p l i g h t s o r warning approach s i g n a l s . 9 : * II It i s uncontested t h a t i n such a s i t u a t i o n a s e x i s t e d here---where two v e h i c l e s a r e e n t e r i n g o r approaching an i n t e r s e c t i o n from d i f f e r e n t highways a t approximately t h e same time, t h a t under Montana s t a t u t e s e c t i o n 32-2170, R.C.M. 1947, and s e c t i o n s 21-145, and 21-170, B i l l i n g s T r a f f i c Code, t h e d r i v e r of t h e v e h i c l e t o t h e l e f t i s r e q u i r e d t o y i e l d t h e r i g h t of way t o t h e v e h i c l e on the r i g h t . II Here, t h e i n t e r s e c t i o n involved was c o n t r o l l e d by "four way" s t o p s i g n s and t h e procedure of approach and e n t r y i n t o t h e i n t e r s e c t i o n was never d e f i n i t e l y e s t a b l i s h e d . S e c t i o n 32-2170, R.C.M. 1947, provides: 11 Vehicle approaching o r e n t e r i n g i n t e r s e c t i o n . (a) When two (2) v e h i c l e s e n t e r o r approach an i n t e r s e c t i o n from d i f f e r e n t highways a t approximately t h e same t i m e , t h e d r i v e r of t h e v e h i c l e on t h e l e f t s h a l l y i e l d t h e r i g h t of way t o t h e v e h i c l e on t h e r i g h t . "(b) The r i g h t of way r u l e d e c l a r e d i n paragraph ( a ) i s modified a t through highways and otherwise a s herei n a f t e r s t a t e d i n t h i s a r t i c l e . 11 S e c t i o n 32-2172 (b) , R.C.M, 1947, provides: "(b) The d r i v e r of a v e h i c l e s h a l l l i k e w i s e s t o p i n obedience t o a s t o p s i g n a s r e q u i r e d h e r e i n a t a n i n t e r s e c t i o n where a s t o p s i g n i s e r e c t e d a t one (1) o r more e n t r a n c e s t h e r e t o although n o t a p a r t of a through highway and s h a l l proceed c a u t i o u s l y , y i e l d i n g t o v e h i c l e s n o t so o b l i g e d t o s t o p which a r e w i t h i n t h e i n t e r s e c t i o n o r approaching s o c l o s e l y as t o c o n s t i t u t e a n immediate hazard, b u t t h e n may proceed." S e c t i o n 32-2166, R.C.M, provides: "No person s h a l l s t a r t a v e h i c l e which i s stopped, s t a n d i n g , o r parked u n l e s s and u n t i l such movement can b e made w i t h r e a s o n a b l e s a f e t y . I I The g e n e r a l r i g h t of way r u l e s s t a t e d i n s e c t i o n 32-2170, R.C.M. 1947, a r e modified by s e c t i o n 32-2172, R.C.M. 1947, s o t h a t t h e v e h i c l e approaching from t h e r i g h t t h a t would o t h e r w i s e have t h e r i g h t o f way l o s e s t h e p r e f e r e n c e because i t i s r e q u i r e d t o stop. There b e i n g no p r e f e r e n t i a l r i g h t of way a f f o r d e d a d r i v e r when r e q u i r e d t o s t o p by s e c t i o n 32-2172, then a d r i v e r approaching a f o u r way s t o p has a s t a t u t o r y duty t o s t o p , followed by a statutory duty to exercise ordinary care as he proceeds into or through the intersection, Sections 32-2166 and 32-2195(d), R.C.13. 1947; Allstate Ins. Co. v. Angelo, 7 Ohio App.2d 149, 219 N.E.2d 218. Certainly, then, a factual issue existed at trial, Both Elliott and Hansen had the duty to make a full stop before entering the intersection and to exercise ordinary care to determine that it was reasonable safe to proceed into the intersection. v. Northern Pac. Ry. Co., 109 Mont. 93, 94 P. 2d 651. Sullivan Under the facts here, neither Elliott nor Hansen had a statutory right of If way or referr red" or "favoredf'driver status. Elliott also contends that an sen's act in accelerating his vehicle rather than applying his brakes immediately prior to the collision amounts to an unforeseeable intervening or superseding cause which ~ ~ o u l d break the chain of proximate causation as to any negligence committed by Elliott. This contention has merit, and the record reflects that the trial court granted instructions on the concept of "proximate cause" and "last clear chance". However, we find the evidence before the jury was by no means so overk~helmingthat reasonable minds could not draw different conclusions as to whether the acceleration only instantaneously preceded the already inevitable collision or whether it was the effective cause of the collision. We hold the jury was properly instructed on the issue of contributory negligence. Concerning the second appeal issue, defendant's proposed instruction 19, given as court's instruction No. 9, reads: I ' You are instructed that the plaintiff is not entitled to recover from the defendant under the doctrine of last clear chance as previously defined to you in these instructions if you find that the plaintiff was negligent and that plaintiff's continued negligence up to the time of the accident and concurred as a proximate cause thereof. I I ~efendant'sbrief d5sclos~sthat the legal authority relied on in framing this instruction was Gustafson v. Northern Pac, Ry. Co., 137 Mont. 154, 160, 351 P.2d 212, where this Court stated: "Defendant cites Pollard v. Oregon Short Line R. Co., 92 I4ont. 119, 11 P.2d 271, and Mihelich v. Butte Electric Ry., 85 Mont. 604, 281 P. 540, as authority for the contention that contributory negligence is a defense in a last clear chance case. But these cases are not properly so construed. They do point out that should a plaintiff continue to be negligent up to the time of the accident, so that such negligence is a concurring proximate cause of his own injury then the theory of the last clear chance has no application. ik * "From what has been said, it is apparent that what is commonly understood as 'contributory negligence' is no defense in a last clear chance case, since this theory concedes plaintiff was negligent in putting himself into the position of peril at the outset. However, a defendant may defeat plaintiff's claim by proving that plaintiff was negligent up to the time of the injury and that his negligence was a concurring proximate cause. I I The trial court's instruction No. 9 was a correct statement of the law. Hannigan Northern Pacific Ry. Co., 384 P.2d 493; Prosser Torts 4th Ed. 5 66, p. 431. The fact of ~lliott's continuing and concurring negligence was fairly at issue upon the evidence before the jury, as it appears possible that Elliott failed to observe the Hansen vehicle or apply his brakes practically until the collision occurred. In light of the fact that Elliott introduced the "last clear chance" issue in his proposed instruction 23 (given as court's instruction No. 8 , we find that court's instruction ) No. 9 was a fair and correct statement of the law and appropriate under the evidence. The third appeal issue concerns plaintiff's proposed instruction 6 refused by the trial court. The instruction was taken from Jessen v. ~'Daniel,136 Mont. 513, 349 P.2d 107, and states the general principle that a person who is exercising ordinary care has a right to assume that others will do likewise. The instruction as worded was a correct statement of a legal principle and would not have constituted error had the trial court elected to permit it. However, light of the factual dispute as to whether either of the litigants was exercising ordinary are, the applicability of this instruction was questionable at best. Reviewing t h e t h i r t y i n s t r u c t i o n s a c t u a l l y given by t h e t r i a l c o u r t , we f i n d t h a t t h e i s s u e s of l e g a l duty, negligence, proximate cause and damages were w e l l defined and explained, hence t h e t r i a l c o u r t was w i t h i n t h e l e g i t i m a t e e x e r c i s e of i t s sound d i s c r e t i o n i n r e f u s i n g p l a i n t i f f ' s proposed i n s t r u c t i o n 6. Bjorndal v, Lane, 157 Mont. 543, 487 P.2d 527; Lamb v. Page, 153 Mont. 171, 455 P.2d 337, p l a i n t i f f ' s f o u r t h i s s u e concerns t h e t r i a l c o u r t ' s d e n i a l of p l a i n t i f f ' s motions f o r judgment notwithstanding t h e v e r d i c t and f o r a new t r i a l . W f i n d t h i s c a s e was w e l l t r i e d ; t h e j u r y e was f u l l y and f a i r l y i n s t r u c t e d . The evidence, although con- f l i c t i n g , was s u f f i c i e n t i f viewed i n t h e l i g h t most favorable t o the prevailing party i n the d i s t r i c t court t o sustain the jury's verdict. Gunderson v. Brewster, 154 Mont. 405, 466 P.2d 589; Jessen v. ~ ' ~ a n i e 136 Mont, 513, 349 P.2d 107, l, The judgment i s affirmed. .' Justice Chief J u s t i c e Justices. Mr. J u s t i c e John Conway Harrison d i s s e n t i n g : f-2
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