Marsh v. Ayers , 80 Mont. 401 ( 1927 )

The only reasonable inference to be drawn from the evidence is that the failure of plaintiff to keep a proper lookout, his excessive speed or his utter failure to use ordinary care for his own safety and that of others, was a proximate cause of the collision; he was guilty of contributory negligence. (SeeMehler v. Doyle, 271 Pa. 492, 115 A. 797.)

"Plaintiff was bound to see what was in plain sight, and cannot escape the penalty of his contributory negligence by simply saying he did not see." (West v. Davis, 71 Mont. 31,227 P. 41; Roberts v. Chicago M. St. P. Ry., 67 Mont. 472,216 P. 332; Liston v. Reynolds, 69 Mont. 480,223 P. 507; Grasle v. Portland Ry., L. P. Co., 119 Or. 528,250 P. 379.) "The plaintiff was not only required to look; but to look in such an intelligent and careful manner as to enable him to see the things which a person in the exercise of ordinary care and caution for his own safety and the safety of others would have seen under like circumstances." (Pratt v. Kistler,72 Mont. 356, 233 P. 600; Keith v. Great Northern Ry. Co.,60 Mont. 505, 199 P. 718; Sherris v. Northern P. Ry.,55 Mont. 189, 175 P. 269; Molt v. Northern P. Ry., 44 Mont. 471,120 P. 809.) "The duty to look implies the duty to see what is in plain sight unless some reasonable explanation is shown." (Knott v. Pepper, 74 Mont. 236, at 243,239 P. 1037; Kemmish v. McCoid, 193 Iowa, 958, 185 N.W. 628.)

Before the plaintiff could recover it was essential for him to show by a preponderance of evidence, or by substantial evidence to avoid a directed verdict, that the failure of defendant to pass around the center of the street intersection was the proximate cause of the collision. (Stroud v. Chicago M. St.P. Ry. Co., 75 Mont. 384, 243 P. 1089; Knott v. Pepper,74 Mont. 236, 239 P. 1037; Chicago, R.I. P.R. Co. v. West,124 Okla. 147, 254 P. 91; Wiley v. Wigg, 124 Mont. 30,254 P. 22; Varn v. Butte Elec. Co., 77 Mont. 124,249 P. 1070; Houston v. Maunula, 121 Or. 552, 255 P. 477.) "To make the failure to observe an ordinance or statute actionable it must appear that the failure was the proximate cause of the injury, the sine qua non, without which the accident would not have happened." (Sprague v. Northern P. Ry. Co., 40 Mont. 481, at 489, 107 P. 412; Neary v. Northern P. Ry. Co.,41 Mont. 480, 110 P. 226; Pure Oil Co. v. Chicago M. St. PaulRy. Co., 56 Mont. 266, 185 P. 150; Wallace v. Chicago M. P.S. Ry. Co., 48 Mont. 427, 138 P. 499; Cummings v. ReinsCopper Co., 40 Mont. 599, 107 P. 394; Townsend v. City ofButte, 41 Mont. 410, 109 P. 969; Bracy v. Northwestern Imp.Co., 41 Mont. 338, 138 Am. St. Rep. 738, 109 P. 706; Andree v. Anaconda C. Min. Co., 47 Mont. 554, 133 P. 163.)

We recognize the oft-repeated rule laid down by this and other courts that where there is a substantial conflict in the evidence the verdict of a jury will not be disturbed; also that evidence will be construed most strongly in favor of a verdict, and that it is only where reasonable minds may not differ as to conclusions to be drawn from the evidence will a refusal to direct a verdict be held error on appeal; but there must be a substantial conflict to warrant the court in refusing to direct a verdict, or to sustain a verdict of a jury. (Tuttle v. PacificMutual Life Ins. Co., 58 Mont. 121, 16 A.L.R. 601, 190 P. 993;Sanborn Co. v. Powers, 58 Mont. 214, 190 P. 990; McIntyre v. Northern P. Ry. Co., 58 Mont. 256, 191 P. 1065; Carey v. Guest, 78 Mont. 415, 258 P. 236.) "Where physical conditions surrounding an accident point so unerringly to the truth of contributory negligence or want of proximate cause, as to leave no room for contrary conclusions, the mere fact that testimony is introduced in conflict with them is not sufficient to make a case for the jury." (Casey v. NorthernP. Ry. Co., 60 Mont. 56, 198 P. 141.) Testimony by a bicyclist that he saw a truck coming from the opposite direction before it started to turn, but did not see it after it started to turn, before reaching the center of the street intersection until it was too close for him to avoid a collision with the truck, justifies the refusal of a directed verdict for the truck driver on the grounds of contributory negligence. (1 Blashfield, sec. 42, pp. 519, 520; Reinders v.Olsen, 60 Cal. App. 764, 214 P. 268; Walterick v.Hamilton, 179 Iowa, 607, 161 N.W. 684; Dunkel v. Smith,168 Wis. 257, 169 N.D. 567.)

The matter of proximate cause is one addressed to the jury. (2 Blashfield, pp. 1245-1249: Szopieray v. West Beverly Express Draying Co., 194 Cal. 106, 227 P. 720; Phillips v.Hobbs-Parson Co., 67 Cal. App. 189, 227 P. 622; Newman v.Overholtzer Sons Co., 182 Cal. 778, 190 P. 175; Whitelaw v.McGilliard, 179 Cal. 349, 176 P. 679.)

"One of two automobiles approaching each other on a highway, on meeting courses, cannot lawfully make a left turn directly in the path of the other, although the place of turning is an intersection of highways which it reaches first, unless the other is sufficiently far away to enable the turning automobile to pass in the clear, or unless a visible signal is given of the intention to so turn, in time to enable the other to avoid the collision." (1 Blashfield, sec. 40, pp. 516, 519; Webber v.Park Auto Transp. Co., 138 Wash. 325, 47 A.L.R. 590,244 P. 718; State Compensation Insurance Fund v. Jorn, 186 Cal. 782,200 P. 624; Heryford v. Spitcaufsky (Mo.App.),200 S.W. 123; Donat v. Dillon, 192 Cal. 426, 221 P. 193; Black v. Parke, Davis Co., 211 Mich. 274,178 N.W. 700; Galispi v. Shafer, 69 Pa. Sup. Ct. 389; Groeschner v.Gund Brewing Co., 173 Wis. 366, 181 N.W. 212.) Early in the present year Harold Marsh, of the age of seventeen years, by guardian ad litem, commenced action against Stacey E. Ayers for damages for personal injuries sustained on January 6, 1927, when a motorcycle on which he was riding collided with a motor-truck driven by Ayers. Issue was joined and the cause tried in the district court of Silver Bow county; each side having introduced testimony and rested, the defendant moved the court to instruct the jury to return a verdict in his favor; the motion was denied, and the cause submitted to the jury. The trial resulted in verdict and judgment for plaintiff, and from this judgment defendant has appealed, specifying error only upon the denial of his motion for an instructed verdict. The pleadings are pertinent here only in so far as the allegations of negligence and contributory negligence are concerned, as the error specified is predicated upon the assertion that the plaintiff failed to prove that acts of negligence on the part of the defendant proximately caused the injury, and that the record discloses that plaintiff was guilty of contributory negligence, barring recovery.

The complaint alleges that plaintiff was proceeding on his motorcycle in a northerly direction on the right side of Montana Street, in the city of Butte, "with due care and caution," and that the collision occurred by reason of the negligent acts and omissions of the defendant in failing to keep a proper lookout or to observe or ascertain whether vehicles were coming from the south when he turned from Montana Street into Mercury Street; that defendant was driving his truck down Montana Street from the north at a greater rate of speed than twelve miles per hour, or at twenty-five miles per hour, contrary to the city ordinance described in the complaint; and that defendant negligently and carelessly made a left-hand turn from the west side of Montana Street into Mercury Street without going to the center of the intersection of the two streets, but instead "cut across" to the north of the intersection and entered Mercury Street north of the intersection, contrary to the city ordinance of the city of Butte, therein described. Certified copies of the two ordinances described are attached to the complaint as exhibits.

The answer denies that the collision occurred by reason of any negligent act of the defendant, and alleges, among other defenses, that plaintiff was driving at an unlawful rate of speed and without keeping a proper lookout, and that the collision occurred by reason of his negligence.

The undisputed evidence establishes the following facts: At about 5 o'clock in the evening of January 6, at which hour traffic was very heavy at the intersection of Montana and Mercury Streets, plaintiff was ascending the heavy grade of Montana Street from south to north, in second gear, on a light-weight motorcycle in first-class condition and with good brakes. As he approached the intersection of the two streets he was traveling at about the line where the right wheels of automobiles traveled on the right side of the street and so continued into Mercury Street, and, as he approached the intersection, he looked to right and left on Mercury and observed no vehicle which would interfere with his progress across Mercury Street; he saw cars descending Montana Street on the opposite side, but observed no car turning into Mercury, from Montana.

At approximately the same time the defendant was driving down Montana Street from the north in a 1923 Dodge truck, with a steel body on which was erected a screen framework and top, and on each of which appeared a white panel three feet wide and four feet long. As he approached Mercury Street he looked to left and right on Mercury and down Montana and observed no vehicle which would interfere with his progress in turning on to Mercury Street, and, continuing east thereon, he turned above the center of the intersection and proceeded across the east half of Montana Street, within the intersection, but wholly within the north half of Mercury Street.

The plaintiff did not see the truck until within five or six feet of it, when he attempted to swerve to the left, but failed to clear the truck, striking the running-board and front fender. The defendant did not know of the proximity of the motorcycle until he felt the impact of the collision, whereupon he stopped his truck within a distance of four or five feet.

As to the speed of the two vehicles the evidence is conflicting; the plaintiff was very positive that he was not traveling over twelve miles an hour, and that, in second gear on an upgrade, he could not have traveled faster than that. On cross-examination, he was asked if he had not told a certain boy of sixteen shortly after the accident that he was going at twenty miles per hour and denied that he had done so. On rebuttal, the boy was called and testified that plaintiff had on two or three occasions made the statement to him. A bystander testified that the motorcycle was not running "very fast."

The defendant testified that he was not driving his truck to exceed eight to ten miles per hour approaching the turn and was not going over eight miles per hour at the time of the collision. On the other hand, the plaintiff testified that when he saw the truck "it was coming pretty fast." Of three disinterested witnesses standing at the corner, the first called testified that the car "was coming at a pretty fair speed"; the second did not see the truck until after the collision; and the third stated first that the truck was going at "a pretty fair speed," and later estimated the speed at "about" or "around" twenty miles an hour, or "maybe more," although he admitted that he had little experience in driving cars and judging speed.

Again there was conflict in the testimony as to the manner in which the defendant turned into the intersection; he testified that he went near the center and made a square turn and did not "cut the corner." One of the witnesses mentioned above testified that he and his two companions were about to cross Mercury when he saw the truck "cut across" from fifteen to twenty feet from above where they were, when he grabbed hold of his companions, drawing them back, with the warning to "look out, you will get run over"; in corroborating this witness, his companion, who saw the truck at the time, testified that he "saw it come across."

As to the exact place of the collision, the plaintiff and the three witnesses mentioned placed it at about fifteen feet from the curb at the northeast corner of the two streets; the defendant placed it a few feet further from the curb, but still to the north of the center line of Mercury Street.

1. Counsel for the defendant assert that the undisputed evidence shows that plaintiff could stop or turn his motorcycle in six feet while going at twelve miles an hour, and, unheedingly and without any precaution, drove headlong into the conspicuous truck with such force as to "catapult him into the truck," demolish the motorcycle, and bend and break the steel fender and running-board of the truck. These statements are not borne out by the record.

As to the space within which plaintiff could turn the motorcycle, he merely testified, "I couldn't tell you whether you could do it in six feet, but you can sometimes make a comparatively short turn when you are going slow"; as to the distance in which it could be stopped one Kinney, a police officer, in answer to the question, "Supposing that a light Indian motorcycle was being driven up Montana Street, in good condition and with good brakes and by an expert rider, in what distance, at the rate of twelve miles per hour, could the motorcycle be stopped?" replied, "About six to eight feet." On cross-examination, this witness stated that the condition of the tires would have to be considered. The record does not show, therefore, that plaintiff could either have stopped his machine or turned to avoid the collision within the space he had even under ordinary circumstances, and the case does not come within the rule laid down in Casey v. Northern Pacific Ry. Co.,60 Mont. 56, 198 P. 141, and Keith v. Great Northern Ry. Co., 60 Mont. 505, 199 P. 718.

Even had the evidence been as counsel state it on this point,[1] what could ordinarily be done would not be controlling in the second of time in which plaintiff had to make a choice; thus confronted by the peril raised by the sudden appearance of the truck, plaintiff was not required to act unerringly, but only to make such a choice as, under the circumstances, a reasonably prudent man would have made. (Daniels v. Bi-Metallic Co.,56 Mont. 284, 184 P. 836; Mullery v. Great Northern Ry. Co.,50 Mont. 408, 148 P. 323.) He attempted to turn within the five or six feet he had, and failed.

Again, while the plaintiff did testify that he was thrown into the truck, he further testified that he had no recollection of what occurred between the time he struck the truck and found himself in the hospital, and the record shows conclusively that he was not "catapulted" into the truck; he could not have been without going through the side panels and screen, and defendant's testimony, corroborated by bystanders, is that immediately after the collision plaintiff was standing beside his machine and was helped into the truck by defendant for the purpose of taking him to the hospital.

While considerable damage was done to the motorcycle and the truck, it was not as great as asserted by counsel, and the record is barren of any testimony as to how much force or momentum would be required to cause that damage. It cannot therefore be said that the evidence shows conclusively that plaintiff was driving faster than he said he was.

2. On approaching the intersection of the two streets it was[2] the duty of each, the plaintiff and the defendant, to keep well to the right-hand side of the street; to slow down to twelve miles per hour (sec. 1743, Rev. Codes 1921; Ordinance 1763, city of Butte), and to keep a lookout ahead; not only to look, but to "look in such an intelligent and careful manner as to enable him to see the things which a person in the exercise of ordinary care and caution for his own safety and the safety of others would have seen under like circumstances" (Pratt v. Kistler, 72 Mont. 356,233 P. 600); and he could not escape the penalty of his negligence by saying that he did not see that which was in plain sight (West v. Davis, 71 Mont. 31, 227 P. 41; Roberts v. Chicago etc.Ry. Co., 67 Mont. 472, 216 P. 332). However, as to what they were bound to see, the plaintiff and the defendant do not stand in the same position.

3. The defendant, intending to turn from Montana Street into[3, 4] Mercury Street, was required by the traffic regulations (section 1743 and Ordinance 1763, above) to "keep to the right and swing full around the intersection of the center line of the street," and to then see that there was no vehicle properly progressing along either of the intersecting streets with which the truck would collide, operating his car with that degree of care consistent with existing conditions (Huddy on Automobiles, 8th ed., 478, and cases cited). When, however, the defendant elected to turn short of the intersection and enter the wrong side of the street, he was at fault (Savage v. Boyce,53 Mont. 470, 164 P. 887), and that act itself constituted negligence per se (Knott v. Pepper, 74 Mont. 236,239 P. 1037); he was chargeable with the additional duty of seeing any vehicle which would not have been placed in a position of danger had he made a lawful left-hand turn. As the plaintiff was traveling in the exact place where he was required by law to travel, the defendant was, under the circumstances, "bound to see" the plaintiff's motorcycle; this he did not do.

4. On the other hand, the plaintiff was bound to see those vehicles progressing in a lawful manner on Mercury Street and to observe whether any car passing down the west side of Montana Street was about to make a lawful left-hand turn in time to bring it within his range of travel, and his failure to do so would not relieve him from the implication of contributory negligence had he collided with any such car negligently driven, and this might be so in this case, if the undisputed evidence showed that the defendant drove nearly to the intersection and was progressing along Mercury Street parallel to the center line of the street in such a manner that plaintiff could not but see the truck while watching for cars making a proper turn. (Mehler v. Doyle, 271 Pa. 492, 115 A. 797.)

5. While the defendant testified that he went nearly to the intersection and then traveled parallel to the center line of the street, the testimony of the two bystanders, who saw the truck approaching and drew back from the curb at the northeast corner of the two streets, would indicate that the truck left the west side of Montana Street fifteen to twenty feet above the north line of Mercury Street and traveled directly toward the curb corner mentioned.

A traveler is not required to be continually on the alert to[5] see whether a vehicle approaching on the proper side of the street will violate the traffic regulations; there being no intervening obstacle or cause to lead him, in the exercise of reasonable care, to anticipate that such a course will be pursued (Simonsen v. L.J. Christopher Co., 186 Cal. 786,200 P. 615; Tschirley v. Lambert, 70 Wash. 72, 126 P. 80; TroutAuto Livery v. People's Gas Coke Co., 168 Ill. App. 56), although, of course, had plaintiff seen the truck in ample time to stop or turn and thus prevent the injury, he would have been guilty of contributory negligence barring recovery (Casey v.Northern P. Ry. Co., above; West v. Davis, above).

6. On the record, at what point the truck would come within plaintiff's line of vision and become a menace to his further[6] progress is problematical; if by reason of defendant's violation of the traffic regulations, his truck suddenly appeared before the plaintiff at a place where it should not have been, and plaintiff had no reasonable time, under the circumstances, to avoid the collision, the negligence of the defendant was the proximate cause thereof and the plaintiff was not guilty of such contributory negligence as would bar his recovery. (Heryford v. Spitcaufsky (Mo.App. 1918), 200 S.W. 123.)

7. The issue of negligence and contributory negligence must[7] usually be decided by the jury under appropriate instructions (Puckett v. Sherman Reed, 62 Mont. 395,205 P. 250; Haney v. Mutual Creamery Co., 67 Mont. 278,215 P. 656), and this is likewise so as to proximate cause (Szopieray v. West Beverly Express Draying Co., 194 Cal. 106,227 P. 720).

8. As the evidence was in such condition that a jury might[8] render a valid verdict thereon in favor of plaintiff, the court could not properly have granted defendant's motion for a directed verdict, for the reason that a directed verdict in favor of defendant in a personal injury action is proper only where the evidence is undisputed or susceptible of but one conclusion by reasonable men, and that in favor of the defendant (Jepsen v.Gallatin Valley Ry. Co., 59 Mont. 125, 195 P. 550), or where the evidence is in such condition that, if submitted to a jury and a verdict returned for plaintiff, it would be the duty of the court to set the verdict aside (McIntyre v. Northern P. Ry.Co., 56 Mont. 43, 180 P. 971), and no error was committed in denying the motion.

As we have disposed of the only question presented by the defendant adversely to his contention, the judgment must be affirmed.

Affirmed.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MYERS, STARK and GALEN concur.