Marcoff v. Buck , 179 Mont. 295 ( 1978 )

No. 14229 J
IN THE SUPREME R O THE STATE O MONTANA
mT F F
1978
ROBEN? DEAN MAFCOFF,
P l a i n t i f f and Respodent,
-vs-
KATHY 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: October 3:0, 1978
Decided :
Filed :
Mr. 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.
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 . N s k i d marks were a p p a r e n t from
o
e i t h e r vehicle. 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 pur-
chased 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 approx-
imately 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 32-
2170(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:
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