Marsh v. Ayers

260 P. 702, 80 Mont. 401, 1927 Mont. LEXIS 51

• Court: Montana Supreme Court
• Decided: November 2, 1927
• Docket: No. 6,197.
• Status: Published

Opinion

MR. JUSTICE MATTHEWS

delivered the opinion of the court.

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 lightweight 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 tbe 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 ears 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 Pac. 141, and Keith v. Great Northern Ry. Co., 60 Mont. 505, 199 Pac. 718.

EVen had the evidence been as counsel state it on this point, 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 Pac. 836; Mullery v. Great Northern Ry. Co., 50 Mont. 408, 148 Pac. 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 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 Pac. 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 Pac. 41; Roberts v. Chicago etc. Ry. Co., 67 Mont. 472, 216 Pac. 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 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 ear 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 Pac. 887), and that act itself constituted negligence per se (Knott v. Pepper, 74 Mont. 236, 239 Pac. 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 Atl. 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 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 Pac. 615; Tschirley v. Lambert, 70 Wash. 72, 126 Pac. 80; Trout Auto 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 Pac. 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 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 usually be decided by the jury under appropriate instructions (Puckett v. Sherman & Reed, 62 Mont. 395, 205 Pac. 250; Haney v. Mutual Creamery Co., 67 Mont. 278, 215 Pac. 656), and this is likewise so as to proximate cause (Szopieray v. West Beverly Express & Draying Co., 194 Cal. 106, 227 Pac. 720).

8. As the evidence was in such condition that a jury might 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 Pac. 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 Pac. Ry. Co., 56 Mont. 43, 180 Pac. 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.