MARCOFF v BUCK
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No. 14229 IN THE SUPREME J m R O THE STATE O MONTANA T F F 1978 ROBEN? DEAN MAFCOFF, P l a i n t i f f and Respodent, -vsKATHY MARIE BUCK, Deferdant and Appellant. Appeal from: D i s t r i c t Court of the Eighteenth Judicial D i s t r i c t , Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellant: Berg, Angel, Andriolo and Morgan, Bozeman, Montana For Respondent : W r m , Sedivy and Olson, Bozeman, Montana Sdmitted on briefs: Decided : Filed : October 3:0, 1978 J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of t h e Court. Mr. T h i s i s a n a p p e a l from a judgment e n t e r 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 , County of Gallatin. The c o u r t , s i t t i n g w i t h o u t a j u r y , found n e g l i - gence on t h e p a r t of d e f e n d a n t i n v o l v e d i n a n i n t e r s e c t i o n collision. Two i s s u e s a r e p r e s e n t e d : 1. W a s t h e r e s u b s t a n t i a l evidence t o support t h e t r i a l c o u r t ' s f i n d i n g o f n e g l i g e n c e on t h e p a r t of d e f e n d a n t ? 2. Was t h e r e s u b s t a n t i a l e v i d e n c e t o s u p p o r t t h e t r i a l c o u r t ' s f i n d i n g of damages t o p l a i n t i f f ' s v e h i c l e ? The a c c i d e n t t o o k p l a c e a t t h e i n t e r s e c t i o n of Grand Avenue and O l i v e S t r e e t i n t h e C i t y o f Bozeman, Montana. A p p e l l a n t - d e f e n d a n t was d r i v i n g a 1965 Comet a u t o m o b i l e and h i t r e s p o n d e n t ' s Dodge t r u c k a t t h e r i g h t f r o n t d o o r . Respondent was p r o c e e d i n g n o r t h on Grand Avenue a t a b o u t 20 m i l e s p e r hour. H e t e s t i f i e d t h a t a s he approached t h e O l i v e S t r e e t c r o s s i n g h e looked t o h i s r i g h t ( t h e d i r e c t i o n a p p e l l a n t came f r o m ) , t h e n t o h i s l e f t , and t h e n looked ahead. I t was n o t u n t i l h e was i n t o t h e i n t e r s e c t i o n t h a t he saw a p p e l l a n t t o h i s r i g h t some 30 f e e t away. Respondent's t r u c k was somewhere i n t h e n o r t h e a s t q u a d r a n t of t h e i n t e r s e c t i o n when s t r u c k . e i t h e r vehicle. N s k i d marks were a p p a r e n t from o The s p e e d of b o t h v e h i c l e s w a s e s t i m a t e d a t 1 5 to 2 0 miles per hour. Appellant t e s t i f i e d t h a t a s she drove i n t o t h e i n t e r s e c t i o n , s h e looked t o h e r l e f t , t h e n t o h e r r i g h t and t h e n s t r a i g h t ahead. She was l o o k i n g t o h e r r i g h t a s s h e e n t e r e d t h e i n t e r s e c t i o n and s t a t e d s h e d i d n o t s e e r e s p o n d e n t ' s v e h i c l e u n t i l i t w a s r i g h t i n f r o n t of h e r . She t h o u g h t s h e then hit the brakes and turned to the right before the impact. As to damages, respondent testified that when he purchased the pickup truck for $400 it did not run. He did a rebuilding and repainting of the vehicle and after putting the truck in first-class condition, he was offered $1,500 for it. Following the accident he had repair estimates of $1,700, but after having the frame straightened, he worked on the .repairs himself and had expended between $300 and $400 for salvaged parts. The court found damages to the vehicle in the amount of $1,692.16 and also medical expenses of $72, hospital expenses of $16, lost wages in the amount of $115, and pain and suffering in the amount of $1,000. Addressing the first issue, appellant argues that respondent was guilty of negligence under section 32-2170, R.C.M. 1947, and that DeVerniero v. Eby (1972), 159 Mont. 146, 496 P.2d 290, mandates that appellant could not be guilty of negligence. Before addressing this issue, we note that this Court has often held that ". . . the findings of fact of the trial court, in a nonjury trial will not be reversed on appeal, unless there is a clear preponderance of the evidence against the findings." Montana Farm Service Co. v. Marquart (1978), Mont. - 578 P.2d 315, 35 St.Rep. 631. , See also Sedlacek v. Ahrens (1974), 165 Mont. 479, 530 P.2d 424. Likewise, we do not review determinations of weight and credibility of witnesses made by the trial court as a trier of the fact. Boatman v. Berg (1978), - Mont . -, 577 P.2d 382, 35 St.Rep. 407. Directing our attention to appellant's argument that section 32-2170(a), R.C.M. 1947, forecloses respondent's recovery, we note that the statute provides: "When two (2) vehicles enter or approach an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right." Here, the court found that respondent's vehicle had entered the intersection first and that appellant was guilty of negligence having entered the intersection while looking to her right, away from the direction respondent came into the intersection. Appellant testified she did not see respondent until he was "right smack" in front of her. The trial court found she was negligent, and that section 322170(a) was inapplicable. We disagree. This Court in a very recent opinion, Yates v. Hedges (1978), Mont. - -P. 2d I , 35 St-Rep. 1488, a case on facts undistinguishable from the case before us, held that the driver on the left coming into an uncontrolled intersection must yield to the driver on the right. This rule, as stated in Yates, DeVerniero v. Eby, supra, and Flynn v. Helena Cab and Bus Co. (1933), 94 Mont. 204, 214, 21 P.2d 1105, 1108, controls the disposition of this case. The decision of the trial court is reversed. We Concur: T~eclL_$ - Qd&@ w Chief Justice . . I ' -. ? , -. Justices - j L L- L J -4-
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