Adami v. Murphy

• Decision Date: 07 December 1945
• Docket Number: 8559.
• Citation: 164 P.2d 150,118 Mont. 172
• Parties: ADAMI v. MURPHY.
• Court: Montana Supreme Court

164 P.2d 150

118 Mont. 172

ADAMI v. MURPHY.

No. 8559.

Supreme Court of Montana

December 7, 1945

Appeal from District Court, Second Judicial District, Silver Bow County; T. E. Downey, Judge.

Personal injury action by Alma Adami against Dennis Murphy, wherein the defendant filed a cross-complaint. From a judgment for defendant on his cross-complaint, the plaintiff appeals.

Reversed and remanded for a new trial.

McCaffery & McCaffery, of Butte, for appellant.

Meyer & Meyer, of Butte, for respondent.

CHEADLE Justice.

On consideration of the petition for rehearing, the following is substituted for the original opinion herein. Respondent has so earnestly contended that the original opinion incorrectly decided certain questions of law so as to repudiate prior decisions of this court, that we have re-examined the record so as to be as certain as may be that our conclusion was correct.

Action for the recovery of general and special damages for personal injuries resulting from a collision between an automobile owned by plaintiff, in which she was being driven by her son and one operated by defendant. The complaint alleges negligence by defendant in the driving and operation of a Ford coupe automobile at a high and dangerous rate of speed in an easterly direction along West Granite street, in Butte, Montana, while said street was in a hazardous condition because of an accumulation of ice and snow thereon, in violation of certain sections of ordinance No. 2029 of the Traffic Regulations of the city of Butte that when said automobile came into close proximity of the automobile occupied by plaintiff, being driven in the opposite direction along said street, the defendant, instead of turning or keeping to the right, as required by said ordinance, suddenly, and without warning, drove the same over upon the north, or left, side of said street, and into and against the automobile in which plaintiff was riding, with the resulting injuries alleged.

Defendant's answer denies all acts of negligence alleged in the complaint. His first affirmative defense alleges that on the date of the collision the street in question, and particularly the southerely part thereof, was covered with snow and ice, and that it was possible for an automobile to ascend the hill on said street, in an easterly direction only by following two ruts made by previous traffic, which ruts were covered with snow and ice and in a slippery condition; that as defendant's automobile, while being driven in a careful and prudent manner, reached a point in front of the residence numbered 625, it struck an icy and slippery spot in one of said ruts and slipped and skidded to the left in a northeasterly direction; that at said time and place one Arthur Adami, Jr., was driving plaintiff's automobile in a careless and negligent manner, in failing to keep same under proper control, or to keep a proper lookout ahead, and driving on that portion of the street being occupied by defendant's automobile; that plaintiff, by failure to protest, acquiesced in the acts of the driver, and was thus guilty of negligence. The second affirmative defense is similar to the first, with the added allegation that the driver of plaintiff's automobile was acting a her agent, servant or employee; that, acting through him, she was guilty of negligence which barred recovery.

Defendant's cross-complaint contains substantially identical allegations of fact; alleges that plaintiff's automobile was, at the time and place mentioned, being driven by plaintiff's son, acting within the course and scope of his employment and upon the business of plaintiff; that plaintiff, acting through her agent, servant or employee, was negligent in the following respects:

Violation of Ordinance No. 2029 of the city of Butte, by driving her automobile in willful and wanton disregard of the safety of others; failing to keep the automobile under control; failing to keep a proper or any lookout to the front and into the couse and path of defendant's automobile; driving her automobile onto that portion of the street then being used and occupied by defendant's automobile.

By reply plaintiff denies all negligent acts alleged in the answer.

By its verdict the jury found the issues in favor of the defendant and against plaintiff, and assessed defendant's damages, on his cross-complaint, in the sum of $3,000.

Plaintiff's motion for a new trial was based upon the grounds specified in subparagraphs 1, 2, 3, 6 and 7 of section 9397, Revised Codes. The motion was overruled.

The appellant assigns error in eight specifications, as follows:

1. The court erred in rendering judgment against the plaintiff.

2. Insufficiency of the evidence to justify the verdict, and that the verdict is against the law.

3, 4. Giving of instructions 30 and 35, over plaintiff's objection.

5. Refusal to grant plaintiff's motion for a new trial.

6. Surprise which ordinary prudence could not have guarded against.

7. Irregularity in the proceedings of the court and jury by which the plaintiff was prevented from having a fair trial.

8. Misconduct of the jury.

Instructions 30 and 35, requested by the defendant, and given, were as follows:

'30. You are instructed that the law places upon all persons the duty of exercising reasonable care to avoid injury, and even though the jury should believe, from the evidence, that the defendant was negligent and that plaintiff was injured thereby, if the evidence also shows that such injury would have been avoided by the exercise of ordinary care by said Arthur Adami, Jr., the driver of plaintiff's car, and that he did not exercise such care, you should find your verdict for the defendant on plaintiff's cause of action.'

'35. You are instructed that, if plaintiff, Alma Adami, knew that her son, Arthur Adami, Jr., was driving the Packard sedan automobile, belonging to plaintiff, in a careless and negligent manner and plaintiff had the opportunity to insist that said Arthur Adami, Jr., desist from so operating said automobile, and failed to do so, but sat by without protesting and permitted herself to be driven by said Arthur Adami, Jr., in a careless and negligent manner, as alleged in the counterclaim and cross-complaint of defendant, and sat by without protesting and that by reason of such carelessness or negligence on the part of said Arthur Adami, Jr., he, said Arthur Adami, Jr., caused plaintiff's automobile, which the said Arthur Adami, Jr., was driving, to run into and collide with the Ford coupe driven by defendant, then plaintiff cannot recover herein upon her cause of action, and you must find your verdict thereon in favor of defendant.'

The pertinent evidence may be summarized as follows: On the morning of the day of the injury, Arthur Adami, Jr., son of the plaintiff, drove plaintiff from their home to downtown Butte in her automobile. About noon he returned downtown in the automobile and picked her up, and it was while they were making the return journey home that the collision occurred.

Granite street, in the 600 block, in which the collision occurred, is 44 feet wide from curb to curb. In that block it has a grade or rise of nine per cent to the east, so that one proceeding to the east would be ascending, and one proceeding to the west would be descending, such grade. At the time of the collision the plaintiff was proceeding along said street in a westerly, and the defendant in an easterly, direction. There was considerable packed snow and ice on the street. The evidence tends to show that there was a center ridge of ice or packed snow, from 4 to 6 inches in height and from 2 1/2 to 4 1/2 feet in width. The traffic lane on the north side was free from ice and snow, but snow extended in a gradual slope from the edges of the traffic lane to the curb and to the ridge along the center line. There was more snow and ice on the south side of the street, and the east-bound traffic was confined to two ruts, the center ridge forming the north edge of the north rut. There were cars parked along the north curb, but their number and location does not clearly appear, except that the driver of plaintiff's car testified that at least one of them was between Crystal street (to the east) and the point of collision. The uncontradicted testimony is that plaintiff's car was traveling at a speed of 15 to 18 miles per hour as it passed the intersection of Crystal and Granite streets, and 12 to 15 miles per hour at the moment of impact. The plaintiff and her son estimated that when they first observed defendant's car, near the intersection of Clark and Granite streets, it was traveling at a speed of about 35 miles per hour, which speed, they say, was maintained until the moment of collision. Defendant testified that his car was in second gear as he ascended the hill, and that its speed was not more than 17 miles per hour.

Arthur Adami, Jr., and plaintiff testified that from a point slightly west of the intersection of Crystal and Granite they observed defendant's car swerve at the bottom of the hill, which would be approximately at the intersection of Clark and Granite. Defendant denies that his car swerved at that point, or until just before the collision. The evidence shows that plaintiff's car was in the west-bound traffic lane at all times, that is, to the right of the center line of the street as it proceeded to the west. Arthur Adami, Jr. and his mother estimated that the left wheels of the car were from 1 1/2 to 3 feet north of the centerline. The evidence also establishes that at the moment of collision plaintiff's car was to the north of the street centerline, on that portion of the street reserved for its use and where it had the right to be, and that at such moment the front part of defendant...