THIBAUDEAU v UGLUM
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No. 81-553 I N THE SUPREME COURT O THE STATE O MONTANA F F 1982 F A K D m W THIEAUDEAU, R N P l a i n t i f f and A p p e l l a n t , ROBERT LAWRENCE U L M GU , Defendant and Respondent. 1 froM: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Cascade Honorable J o e l G. F.oth, Jud.ge p r e s i d i n g . Counsel o f Record: For P l a i n t i f f : R e g n i e r and L e w i s ; S t e p h e n D. R o b e r t s , G r e a t F a l l s , Montana F o r Defendant: D z i v i , C o n k l i n & Nybo; W i l l i a m C o n k l i n , G r e a t F a l l s , Montana S u b m i t t e d on b r i e f s : Decided: Filed: !Q 1 7 4982 j V August 1 9 , 1982 November 1 7 , 1982 i/lr. Chlei Jusrcice Frank I. Haswell cleiivered the Opinion of the Court. In the Eighth Judicial District, Cascade County, plaintiff sued defendant for darnages arising out of a car accident and a jury awarded plaintiff $1,088.55. Plaintiff appeals, claiming discovery abuse and error by the court in failing to direct a verdict on the issue of liability. We reverse and remand for a new trial. On February 21, 1980, at about 2:15 p.m., plaintiff was traveling east on Third Avenue South in Great Falls approaching the uncontrolled intersection of Third Avenue South and 22nd Street. proaching Street. At the same time, defendant was ap- the same intersection traveling south on 22nd The weather was clear and the streets were snow- packed and siippery. According to plaintiff, both vehlcles entered the intersection at approximately the same time and t h e defendant failed to yield the right-of-way to plaintiff, who was on defendant's right. Plaintiff's left front fender struck defendant's right front fender and the vehicles slid, causing plaintiff's left rear fender to strike defendant's rlght rear fender. Later that day, plaintiff went to the Great Falls office of defendant's insurance company and it appeared from the evidence at trlal that plaintiff filled out a "Report of Facts" form while there. The form was unsigned and at trial plaintiff could not remember filling out the form himself although he also testifieu that it was his handwriting that appeared on both sides of the document. In the evening of February 21, 1980, plaintiff went to the emergency room of a Great Falls hospital for treatment of lower neck and head pain. On April 11, 1980, plaintiff filed a complaint in District Court, generally alleging that defendant operated his vehicle in a negligent manner and seeking damages for medical costs, pain and suffering and loss of earnings. Defendant answered, raising as defenses the plaintiff's own negligence and assumption of risk. On September 16, 1980, plaintiff propounded a set of interrogatories to defendant which included the following language (defendant's answers thereto are included): "The information requested herein is not restricted to your personal knowledge, but includes information in the possession of your attorneys and extends to information which you or your attorneys can obtain upon reasonable inquiry. These interrogatories shall be deemed continuing so as to require supplemental answers to be filed promptly upon obtaining further information if you or your attorneys obtain such information between the time answers are served and the time of trial. "INTERROGATORY Nu. 3: Have you at any time since the incident referred to plaintiff's Complaint, had or heard any discussion with the plaintiff or any of .che plaintiff's agents concerning the same? If so, state: "(a) The date, time and place where each such discussion took place; "(b) The name and present address of each person present at said discussion; "(c) Were any statements, written or otherwise, obtained from anyone, including you, who was interviewed or questioned on your behalf in connection with the incident described in the Complaint? If so, state: "(1) The name and present address of each person giving such statement; "(2) The dates upon which such statements were given; "(3) 'The names and present addresses of all persons who have present custody of such statements. "ANSWER: NO. " ( a ) Not applicable. "(b) Not applicable. " ( c ) No. "(1) Not applicable. "(2) Not applicable. "(3) Not applicable." It can be seen from defendant's answers to these interrogatories that plaintiff's attorney was not furnished with the Corm that was filled out at defendant's insurance company's off ice. At trial, plaintiff testified regarding the facts surrounding the accident, that his physical activities had been hampered somewhat as a result of the accident, and that he still had recurrent headaches. Defendant on cross-examina- tion attempted to impeach plaintiff's testimony by using the information contained on the "Report of Facts" form. Plain- tiff objected to the use of that information because he was unaware of the existence of the form, contending that it should have been supplied to him under the interrogatory request. used information from the form to contradict plaintiff's earlier speed Plaintiff's objection was overruled and defendant testimony and discovery statements regarding the of the vehicles and when plaintiff first saw defendant. At the close of both parties' case-in-chief, plaintiff moved for a directed verdict in his favor on the issue of defendant's negligence, which was denied. After rebuttal testimony from both parties was received, the jury found plaintiff's total damages to be $1,814.25, and found plain- eiff to be 40 percent negligent and the defendant 60 percent negligent. Accordingly, the judgment plaintiff received against defendant was reduced to $1,088.55. Plaintiff appeals from that judgment and presents two issues for our consideration which can be stated as follows: 1. Did the trial court err in allowing defendant to cross-examine plaintiff about plaintiff's statements made on the "Report of Facts" form? 2. Did the trial court err in failing to direct a verdict in plaintiff's favor on the issue of liability? Regarding the first issue, appellant argues that defendant's Exhibit No. 1 (the "Report of Facts" form) should have been produced in response to Interrogatory No. 3 and that the first time appellant was aware that such a statement had been given was at trial, on cross-examination ot plaintiff. Appellant further argues that the resulting impeachment had a harmful effect on plaintiff's credibility before the jury as reflected in the small judgment and that, had the document been timely delivered, plaintiff could have refreshed his recollection about the details of the accident prior to trial. Respondent contends that Interrogatory No. 3 should have been more clearly worded and that it was not clear that the exhibit was a statement executed by plaintiff. Respon- dent also contends that the effect of the exhibit on the jury was merely cumulative, since plaintiff had also been Impeached by inconsistent statements given in an earlier deposition and in answers to interrogatories and by testimony of defense witnesses. Plaintiff 's statement, given to defendant Is insurance company, clearly falls within the ambit of Interrogatory No. 3(c) as a written statement obtained from the plaintiff on defendant's behalf and it was error for the District Court to allow impeachment thereon. It is clear on the face of the document that it was filled out by plaintiff. On the top of "You," the plaintiff's front page under name appears. the column entitled The following statements also appear on the form: "Who had Describe the right of way? I was on his right "Dld anyone receive a ticket? Who? Mr. Uglum For what? giving me the r i g h F o f way "Exactly what was said? lust called the ~ o l i c e me Yes Not Nothing we "Describe Accident: I was going East o n my way home, at 2:lO. W e both tryed [sic] to stop but the roads were too icey [sic] and h e was also going too fast for road conditions. he hit me in the middle of the intersection pushing me over to the riaht and then his rear end of his II car hit mine Even a cursory examination of these responses on the form would have indicated that plaintiff filled it out or, at least directed someone else to fill it out, which would still qualify as a "statement" under the interrogatory language. In his brief, respondent admits that he reviewed the insurance adjuster's entire file when answering the interrogatories and a more thorough examination have clearly revealed this exhibit. thereof would Nor are we persuaded by defendant's argument that the plaintiff was viewed" or "questioned" in completing the form. of the Montana Rules disclosure of of Civil Procedure not "inter- The spirit requires broad knowledge of the case on the part of all parties, Smith v. Babcock (1971), 157 Mont. 81, 482 P.2d 1014, and the result is the same whether the plaintiff was "interviewed," "questioned" or insurance company's form, i.e., filled out defendant's the defendant's insurance company obtained a statement about the accident from plaintiff. Furthermore, at trial defense counsel admitted they realized that plaintiff had probably prepared the form as the following transcript shows: ". . . I participated in the preparation of this case prior to trial, and participated in answering the interrogatories in question, and I want the record to show that I had no idea that Defendant's Exhibit No. 1 was, in fact, a statement prepared by the plaintiff, and Mr. Conklin. when e n t e r e d t h i s c a s e , discovered that this document had,-in -----------fact, probably------prepared by t h e been -------------------------lai in tiff (Em~hasis added.) . . ." Because the interrogatories are, by their language, continuing, it was incumbent upon defense counsel to turn the document over to plaintiff at that time, also. were in violation of Rule 26(e)(2), Defense counsel Pl.R.Civ.P., which states: "(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment." We have held that reversal and a new trial may be had where interrogatories were not properly answered, Sanders v . Mt. Baggin Livestock Co. (1972), 160 Mont. 73, 500 P.2d 397. In this regard, appellant requests that we instruct the trial court to assess reasonable damages pursuant to Rule 37(b), Eii.It.Civ.P., with discovery for defendant's failure to comply rules. However, Rule 37(b), M.R.Civ.P., relates to failure to comply with a court order compelling discovery, which did not occur here. Thus appellant's request is denied. The focus of the second issue is whether the trial court should have directed a verdict in plaintiff's favor on the issue of liability. Appellant argues that this should have been done because both vehicles approached and entered the intersection at approximately the same time and plaintiff's vehicle was on the right of defendant's vehicle and thus had the right-of-way. Section 61-8-339(1), MCA, provides: "Vehicle approaching or enterinq intersection. (1) When two vehicles enter or approach an intersection from different highways at approximately the same time, the driver of the vel~icle on the left shall yield the right-of-way to the vehicle on the right." Appellant also argues that DeVerniero v. Eby (1972), i59 Mont. 146, 496 P.2d 290, is controlling here. DeVerniero plaintiff defendant trolled and approached intersection at approximately collided. an In uncon- the same time and Plaintiff was to the right of defendant. This Court found that plaintiff was not contributorily negligent as a matter of law and the jury verdict for defendant was reversed and a new trial ordered on the issue of damages. Respondent contends that DeVerniero is factually dis- t i n g u i s h & b l e from the instant case and points out that D e V e r n i e r o was d e c i d e d u n d e r t h e o l d c o n t r i b u t o r y n e g l i g e n c e law, rather statute. Even liability there than under if should is no need we the present hold that comparative a directed granted, negligent verdict have been respondent for a remand b e c a u s e p l a i n t i f f ' s on contends damages h a v e a l r e a d y b e e n f i x e d by t h e j u r y ( $ 1 , 8 1 4 . 2 5 ) . The D i s t r i c t C o u r t was c o r r e c t i n r e f u s i n g t o g r a n t a directed verdict liability. supra, in plaintiff's The r i g h t - o f - w a y favor on the issue s t a t u t e , s e c t i o n 61-8-339, of MCA, r e q u i r e s t h a t t h e two v e h i c l e s e n t e r o r a p p r o a c h t h e i n t e r s e c t i o n a t a p p r o x i m a t e l y t h e same t i m e . The d e f e n d a n t testified that the vehicles did not enter the intersection a t a p p r o x i m a t e l y t h e same t i m e and c l a i m s t h a t h e e n t e r e d the intersection first. the officer Other testimony, investigating the accident, including t h a t of indicated that the two v e h i c l e s d i d e n t e r t h e i n t e r s e c t i o n a t approximately t h e same t i m e . This c o n f l i c t i n g testimony r a i s e d a f a c t u a l i s s u e f o r the jury to decide intersection f i r s t whether as to whether defendant ( a c c o r d i n g him t h e entered the right-of-way) or t h e v e h i c l e s approached o r e n t e r e d t h e i n t e r s e c t i o n a t a p p r o x i m a t e l y t h e same t i m e ( g i v i n g t h e right-of-way to plaintiff). Another f a c t u a l c o n f l i c t f o r t h e j u r y ' s is w h e t h e r determination t h e respective d r i v e r s kept t h e proper lookout. D e f e n d a n t t e s t i f i e d t h a t h e d i d n o t see p l a i n t i f f ' s v e h i c l e until just Plaintiff feet from before testified the defendant entered at that trial intersection when he the intersection. plaintiff first was saw seventy defendant. However, i n a n s w e r s t o i n t e r r o g a t o r i e s p l a i n t i f f s t a t e d t h a t t h e d i s t a n c e was t h i r t y f e e t and on E x h i b i t 1 t h e d i s t a n c e given was question one on car lengtl?. whether each This driver evidence had raised maintained a a jury proper l o o k o u t , t h u s p r e v e n t i n g a d i r e c t e d v e r d i c t on t h e i s s u e of liability. A d i r e c t e d v e r d i c t may n o t b e p r e d i c a t e d on s u c h con- f l i c t s of m a t e r i a l f a c t . R e v e r s e d a n d remanded. Chief J u s t i c e W e concur: J u s t i c e J o h n C. opinion later. Mr. Sheehy w i l l f i l e a s p e c i a l c o n c u r r i n g LN THE S I J P ~ COUIiT OF THE STPPm OF JWNTANA J F m D m THIBAuDrnTJ, P l a i n t i f f-Appellant VS , . ROBEXI? LAWRENCE UCLUM, Defendant-Respondent. CONCURRENCE AND DISSENT OF M ? JUSTICE JOHN C. SkEEHY E. DATED: J a n u a r y 20, 1983 Mr. Justice Job C. Sheehy, concurring in part and dissenting in part: I concur in the remand of +his cause for a new trial for the failure of respondent to make adequate discoven/. I dissent to the further conclusion.of the majority that plaintiff is not entitled to a directed verdict on liability. In my opinion, the defendant in this intersection-collision case is negligent as a matter of law, and the plaintiff is not guilty of any contributory or comparative negligence as a. matter of law. My dissent is based. on two grounds: (1) the right of way statute qave the plaintiff an undisputed right to proceed and placed an undisputable burden upon the disfavored driver to stop if necessary to avoid the collision; and (2) that lookout of the plaintiff, proper or otherwise, is not a factor of prox-imatecause 1in this case. 1 PI-TIFF . HERIZ HAD AN ABSOLUTE RIGHT TO THE K RG OF WAY. C I The collision here occurred on a clear but wintry dzy a t an . uncontrolled intersection in urban Great Falls. Plaintiff was approaching the intersection from the right, the defendant f r m the left. Although there is dispute about their speeds, the evidence indicates that neither was exceeding the speed limit as each approached the intersection sad entered it. The right of way statute provides: "61-8-339. Vehicle approaching or enterin intersection. (1) Ie two vehiclys enter oz &n approach intersection from different highways at approximately the same tire, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right. (2) The right-of-way rule declared in subsection (1) is difiec? at through highways and otherwise as stated in this chapter.'' Subsection (I.) of section 61-8-339, ?CAI applies in this case. Without doubt the statute establishes a favored driver on the right of the intersection and a d i s f a v o r 4 driver on the l e f t of the intersection. The 1-anguaqe of the s t a t u t e is tha.t the vehicles "enter or approach" a t "approximately the sam~t b - . I' That language precludes any consideration by t h i s Court or t h e Distxict Court of who entered the intersection f i r s t . I f i n f a c t the vehicles are entering or approa.ching the intersection a t a~proximatelythe same the, it is the duty of the driver on the l e f t t o yield t o the driver on the right. of The me~ning the word "approximately" a s used i n this s t a t u t e was discussed in Mmre v. Kujath (Minn. 1947) , 29 N.W. 2d 883, 886, 175 A.L.R. 1007, where the Minnesota Court said: "Bv approximately, +he l e g i s l a t u r e must have meant t h e approach t o an intersection of twa vehicles so nearly a t the s m tt h a t there would be imnjnent hazard of a c o l l i s i o n i f both continued the same course a t the same s p e d . I n t h a t case, he on the l e f t should yield t o him on the right. While the driver on the l e f t is not required t o come t o a dead stop a s a t a through highway stop sign, unless it is necessary t o avoid a c o l l i s i o n , he nevertheless must approach +he intersection w i t h h i s c a r so under control t h a t he can yield the r i q h t of way t o a vehicle w i t h i n t h e danger zone on the r i g h t .I1 ... In Fester v. George (S.D. 1946), 25 N.W.2d 455, 456, it is said : ". . . in determining the r i g h t of way, it is without legal significance which car actually entered the intersection f i r s t i f it appears +hat the vehicles approached o r entered the intersection a t approximately the same. It f o l . 1 0 ~ ~h a t the single f a c t t h a t pl-aintiff t entered the intersection f i r s t did not aive him a r j g h t of precedence over defendant. The controlling issue is whether the two c a r s w e r e zpproaching o r enterinq the intersection a t approximatelv the same time; i f thev were, the p l a i n t i f f beinq on the l e f t , should have yielded t o the defendant; i f thev were not, no question of r i g h t of way is presented. The p a r t i e s A r e approaching the intersection I a t approximately the same t h e ' whenever the two vehicles are i n such a r e l a t i v e position t h a t upon appraisal of a l l of the factors in the s i t u a t i o n it should a p p a r t o a man of ordinary prudence aproaching from the left that there is danger of collision if he fails to yield the right of way." Therefore, 1 cannot a.gree with the followin9 language in the majority opinion: "This conflicting testimony raised a factual issue for the jury to decide as to whether defendmt entered the intersection first (according him the right-of-way) or whether the vehicles approached the intersection at approximately the same time (giv-ing the right-of-way to plaintiff.)" That language does not embody the law, ignores the wording of our right-of-way statute on uncontrolled intersections, and restores the "race to the intersection" test that the legislature itself intended to abolish in 1965. Section 61-8-339, MCA, is the successor statute to section 32-2170, R.C.M. 1947. Before 1965, the right-of-way statute read as follows: "32-2170. Vehicle approaching or enterin intersection. (a) The driver o f a vehiclz approachinq an intersection shall vield the right of way to a vehicle which has entered the intersection from a different highway. " ( b ) When two vehicles enter an intersection from different highways at approximately the sane time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right . . .I1 It will 5e noted that paragraph (a) of t h old sta.tuteprovided for vehicles where one had entered the intersection and one was approaching the intersection. Para.graph (b) provided for v~hiclesentering the intersection at the same time. - approximately --- The old statute was unsatisfactory, particularly because paragraph (a) provided in effect for a race to the intersection which led to the amendment in 1965. Paragraph (a) in the old statute was deleted, and a new parayra-phprovided as follcx?~s : "32-2170. Vehicle approaching or enterinq intersection. (a) When. two (2) vehicles enter . . or - approach an intersection from d.ifferent hiqhways at approximately the same time, the driver"of the -khicl.e on^ the left shall .yield the right of way to the vehicle on the right." (-hasis added.) The amendment in 1965 can be found in Taws of 1965, S 1, Ch. 175. The stztute was again amended in 1979, but without affecting the v. language which we have quoted & e We have heretofore construed the statute in accordance with the legislative intent until this case. In DeJJerniero v Eby (1.972), . 159 Mont. 146, 496 P.2d 290, a intersection collision case, this n Court said: "Defendant's failure to yield the right of way constituted both statut.orily recognized duty m d breach of that duty. It is clear that by statutory directive automobiles approachinq or entering an intersection are accorded the status of favored and disfavored drivers to facilitate the orderly mvement of automobiles." (Emphasis added.) 159 Mont. at 1.51, 496 P.2d at 292. In Yates v. Hedges (1978), 178 Mont. 488, 585 P.2d 1290, mother intersection collision case, we reversed the District Court under the provisions of the right-of-way statute where the collision had occurred. at an uncontrolled intersection and seted following: ". . . The rul-e for drivers approachinq an intersection is primarily one of reasonableness: "'If a traveler, not having such riqht of precedence, comes to the crossing and fhds no the other one approaching it upon -- street with5 such distance as-reasonahlv to indicate A danqer of i n t e r f e r e o r i o ~ h is under no e o h l i ~ o p < rto wait,but he may proceed irt to u.se such crossincr as a matter of r c h . ' (Citing a. case.) ( % & i s in original o~inlon.) lps. "Here, there was another driver approaching on +he right within a distance that reasonably indicated danger of interference or collision. Yates wa.s under a legal duty to yield to him rather than accelerate to try to make it through the intersection hefore him." Yates v. Hedges (1978), 178 l o t 488, 495, 585 P.2d 1290, 1294. ln. the In Marcoff v Buck (1978), 179 Mont. 295, 587 P.2d 1-305,we . reversed the District Court for not applying the right-of-way rule to give the plaintiff on the right of the'right of m y . The only two cases in Montana that uphold the right of a plaintiff who was on the left at the intersection to recover damages involved situations where the driver on the left would not have collided with the other vehicle unl-essthe vehicle on the riqht was violating the law; for example, driving at an excessive rate of speed. See Jessen v. O'Daniel (1960), 136 Mont. 513, 349 P.2d 107, and Flynn v. Helena Cab and Bus Company (1.933), 94 Mont. 204, 21 P.2d 1105. The 1965 legislature, in plain and easily understood lmguage, did what it could to standardize the rights and duties of vehicles approaching or an entering approximately the s m time. uncontrolled intersection at The legislature did away with the "race to the intersection" theory of right of way. I trust that anyone construing the effect of the majority opinion here as to the right-of-v~ay statute will understand that it is only an inadvertence, and that DeVemiero, Yates and Marcoff, supra, have not been overruled. I . THEPS3 IS NO ISSUE OF IOOKOUT AS A PFOXIJZATE CAUSE IN THIS CASE. The majority find a possible issue of whether the respective drivers kept a propr lookout. With respect to the plaintiff, that cannot be an issue in this case. It is true that pl-ajntiff testified that he first saw the defendant's vehicle when defendant was 70 feet from the intersection; that i n answers to interrogatories, he stated the distance was 30 feet, and on exhibit 1 - in the trial, he gave the distance as one car length. While an issue of fact m y have existed as to when plaintiff first observed +he defendant's vehicle, it has no bearing on proximate cause and is thus not an issue in the case. Again the majority have misapprehended the rights and duties arising from the riqht of way In Moffitt v. Dean (Ga. 1951.1, 65 S.E.2d 637, 639, under the same right-of-way statute, t h a t court said: "Under these circumstances, the alleged failure of the defendant t o keep a 1-ookout ahead is immaterial since had he observed the ap3?roaching vehicle he would have Seen authorized t o proceed across the intersection notwithstanding i t s approach. It may be conceded that under some circumstances where one approaches an intersection on the riqht of another vehicl.~ approaching on an intersecting highway he w i l l not be authorized t o proceed into the intersection ahead of the other vehicle or t o assLm t h a t the other w i l l yield the right of way t o him. Such a case might be where the vehicle on the l e f t approaches the intersection a t a high r a t e of speed, w i t h obviously no intention of stopping or yielding the right of way t o the vehicle on the right, o r where the one on the l e f t enters the intersection ahead of the one on the riqht. Under such a s s m d circumstances, it might possibly be negligence, as t o those riding as passengers i n the vehicle on the right, not t o exercise caution, slow down, o r stop t o permit the passing of the vehicle or! the l e f t . However, no such facts o r circunstances are alleged in the instant case .md the courts are not authorized t o hypothesize t e where nothing in the petition even remotely hm Implies such facts. 7: could not improve on the prose of the hate Justice Hamley. In Massengale v. Svangren (Wa. 1953), 252 P.2d 317, Judge Hamley wrote: "'Etrery driver has the right t o assum t h a t other users of the highway w i l l obev the t r a f f i c Laws and rules of the road. Accordingly, w e have frequently held that a favored driver who has done nothina t o confuse o r deceive a disfavored driver i s entitled t o assume t h a t the Latter w i l l yield the right of way. (Citing cases. ) The favored driver may rely upon t h i s assumption u n t i l he becomes aware, o r i n the exercise of reasonable care should have become aware, t h a t the right of way w i l l not be yielded. (Citing cases. ) " 'Under the establj-shed facts of this case, the two vehicles were about equidistant from the intersection a s they approached a t a speed of a approximately 30 miles per hour. H d appellant looked t o h i s l e f t when he was 100 feet from the intersection, he could have seen respondents approaching from t h e l e f t a similar distance 'ran the intersection and traveling a t a similar speed. I t w s broad daylight, the intersection a was unobstructed, and both vehicles were i n plain view of the respective drivers. "'There i s no finding t h a t , had appellant looked, he would have observed that the disfavored was inattentive t o her driving, o r t h a t any other circumstance would have k e n observed which would have given notice t h a t t h e disfavored driver did not intend t.0 yield the r i q h t of way. There i s no finding t h a t a p p l l a n t was driving in a manner which would tend t o confuse o r deceive the disfavored driver. "'The conclusion is inescapable, on these f a c t s , t h a t had appellant lmked and seen respondent% c a r when both w e r e 100 f e e t from t h e intersection, appellant would have been e n t i r e l y warranted in proceeding on the assumption t h a t he would he accorded the r i g h t of way. Nor did the situation change a s the two vehicles approached t h e intersection. Appellant a t a l l times had the r i g h t t o assume t h a t the disfavored driver, observing appellant ' s steady orogress towards ~ n d i n t o the intersection, would slow down o r change h i s course so a s t o s r a n t the r i q h t of way. There came a time, of course, when appellant could and did see t h a t the r i g h t of way was not being yielded. By then, however, it w s too l a t e t o avoid the a collision. " 'The f a c t s here found distinguish t h i s case from those cases, c i t e d by respondents, where the p l a i n t i f f f a i l e d t o a c t promptly t o avoid an accident, a f t e r observing, o r negligently f a i l i n g t o observe, the disfavored driver crossing, or attempting to cross, the intersection immediately ahead of the p l a i n t i f f . (Citing cases. ) "'For the reasons indicated, the findings of f a c t entered by the t r i a l court do not support the court s ultimate finding o r conclusion t h a t appellant's f a i l u r e to look t o h i s l e f t and see respondent's vehic1.e was a proximate cause of the accident. Contributory negligence was therefore not established. W e need not and do not decide whether the favored driver had a duty t o look t o h i s l e f t . " 252 P.2d a t 318, 319. Whether p l a i n t i f f f i r s t saw the defendant's vehicle when he was a car length away, 30 f e e t away, o r 50 f e e t away from the other vehicle, nothing i n t h i s record shows t h a t an observation a t any of those points would have led plabtiff to believe that the right of way would not be yieldled to him i time for him to avoid the n collision. Plaintiff's lookout, therefore, could not be a proxhte cause i this case. n Plaintiff was correct in relying on his riqht of m y and assLnming that the less favored driver would respect the right of way. I would therefore reverse this cause and remand it to the District Court with instructions to find the defendant negligent as a matter of law, enter a directed verdict as to liability and let the jury re-examine the issue of damages. It should be said that defendant's contention that plaintiff's alleged negligence should be considered in this cause because we now have comparative negligence instead of contributory negligence is, o course, weightless. f Negligence is negligence, whether it is contributory or comparative. The comparative negliqence statute did not do away with the concept of proximate cause.
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