KIMES v HERRIN
Annotate this Case
Download PDF
No. 84-35 I N THE SUPREME COURT O THE STATE OF M N A A F OTN 1985 TONYA KIMES, by and t h r o u g h MICHAEL KIMES, h e r f a t h e r a n d g u a r d i a n , P l a i n t i f f and A p p e l l a n t , GORDON HERRIN, D e f e n d a n t and Respondent. APPEAL FROM: D i s t r i c t Court of t h e F i r s t 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 Lewis & C l a r k , The H o n o r a b l e Henry L o b l e , J u d g e p r e s i d i n g . COUNSEL OF RECORD: For Appellant: S m a l l , H a t c h , Doubek & P y f e r , H e l e n a , Montana F o r Respondent : R o b e r t J. J o h n s o n , Lewistown, Montana - - Submitted on B r i e f s : ~ Filed: AUG 2 d 1985 ~ ~ A p r i l 1 8 , 1985 i August 2:0 , d ~ d 1985 Mr. Justice William E. Hunt, Sr., delivered the Opinion of the Court. This is an appeal from a District Court jury trial concerning negligence causing, and persona.1 injuries resulting from, an automobile and farm vehicle collision. The District Court had granted partial summary judgment to the respondent, Gordon Herrin, by ruling that the collision occurred at an "intersection." in favor of the respondent. The jury returned a verdict The appellant, Tonya Kimes, appeals from the granting of partial summary judgment and from the District Court allowing certain testimony at trial. We reverse and remand. The appellant, Tonya Kimes, at the time, two years old, was a passenger in a station wagon operated by her father, . Michael Kimes. passenger. Her mother, Ella Mae Kimes, was also a The station wagon was traveling west along Herrin Road which is a short distance north of Helena, Montana. The respondent, Gord-on Herrin, was traveling in a farm vehicle, a self-propelled hay bale stacker, south on a short segment of road. which is called Helberg Drive. As the respondent drove onto Herrin Road a collision occurred with the station wagon operated by appellant's father. approximately 12:OO The collj-sion occurred at noon, October 3, 1974. of area where collision occurrec occurred. (Not to sca Gordon Herrin Herrin Road York Michael Kimes Two issues are presented for review: 1. Whether testimony the District regarding family Court erred fighting in and allowing drinking by appellant's father. 2. Whether the District Court erred in granting respondent's motion for summary judgment on the question of "intersection." The first issue is whether the District Court erred in allowing testimony regarding family fighting and drinking by the appellant's father. We hold that the District Court erred in allowing this testimony. When the collision occurred, the appellant, then two years old, suffered injuries. Several years later she exhibited symptoms incl-uding listlessness, sleepiness, and staring. The appellant sought to show that these symptoms were related to injuries incurred in the collision. The respondent and introduced testimony of family fighting drinking by appellant's father to show that the symptoms were caused by the appellant's environment and not the collision. Damages were at issue in this case. Critical to the issue of damages was what caused the symptoms exhibited by the appellant. The questioned testimony had a tendency to make the alleged cause of the symptoms more or less probable than it would be without the testimony. testimony M.R.Evid. was therefore relevant pursuant The questioned to Rule 401, All relevant evidence is admissible, except as otherwise provided by law. Rule 402, M.R.Evid. However, there is an exception to the admissibility of this testimony that applies here--exclusion if its probative value is substantially outweighed by the danger of unfair prejudice as set forth in Rule 403, M.R.Evid. The application of this exclusion is discretionary with the District Court. 403, M.R.Evid., Annot. Rule This Court will not reverse an evidentiary ruling that is within the discretion of the District Court unless that discretion was clearly abused. Board of Trustees v. Board of County Commissioners (1980), 186 Mont. 148, 157, 606 P.2d 1069, 1074. We hold that the District Court abused its discretion in allowing this testimony. some concern over the The District Court demonstra.ted admissibility of the questioned testimony and allowed the testimony because the respondent assured the District Court that home environment would be medically linked to the appellant's symptoms. both parties' expert witnesses indicated We note that that poor home environment may cause symptoms such as were exhibited by the appellant. However, no evidence at trial established a medical connection between poor home environment and the appellant ' s symptoms. The second issue deals with the District Court granting partial summary judgment and thereby establishing that the collision occurred at an "intersection." This ruling was critical because it gave respondent the right-of-way. At an "intersection" the driver approaching from the left shall yield the right-of-way. Section 61-8-339, MCA. If the junction was an "intersection" the driver of the vehicle in which the appellant was riding would have been required to yield the right-of-way when they reached the junction at approximately the same time. Section 61-8-339, provides : "61-8-339. Vehicle approachin or enterin intersection. (1) When two vegicl~s enter : 0 approach an intersection from different highways at approximately the same time, the driver of the MCA, vehicle on the left shall yield the right-of-way to the vehicle on the right. " (2) The right-of-way rule declzred in subsection (1) is modified at through highways and otherwise as stated in this chapter." We do not believe that the legislature intended that two roads joined as shown on the above drawing were to be an intersection within the meaning of S 61-1-212, MCA. The evidence does not show that the two roads joined here were highways. To establish an "intersection" the two roads must be "highways." Highways means the entire width between the boundaries of every publicly mainta.ined way when any part is open to the use of the public for purposes of vehicular traffic. Section 61-1-201, MCA; Leach v. Great Northern Ry. Co. (1961), 139 Mont. 84, 94, 360 P.2d 94, 99. The record here shows that at the time of the collision the road the appellant was traveling, Herrin Road, was a paved through road. The short segment of road upon which the respondent approached Herrin Road was not a through road and therefore could not form an "intersection" within the meaning of S 61-1-212, MCA. Reversed and remanded. We Concur: Justices IJr. Justice Frank B. Morrison, Jr. specially concurring: I concur in the result. the granting of However, I would only reverse summary judgment in connection with the right-of-way issue on the basis that the trial court erred in taking this issue from the jury. In my opinion the connecting road upon which Herrin was travelling immediately prior to the accident might be found to constitute a "public approach ramp" within the meaning of 61-8-343, MCA. I do not believe that the "right-of-way" as referred applied to to in intersections such evidence here. legislature intended as for S 61-8-339, MCA, to be the one found in the Most likely the right-of-way law was intended to apply to the intersection of highways which meet and cross at right angles. However, I realize the Court must refrain from legislating. Legislative history is not illuminating. Under the circumstances I would submit the factual question to the jury to determine whether the short segment of questioned road qualified as a public approach ramp as that term is utilized in the statutes.
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.
