Baatz v. Noble

Citation69 P.2d 579, 105 Mont. 59
Case DateJune 15, 1937
CourtUnited States State Supreme Court of Montana

Rehearing Denied June 21, 1937.

Appeal from Fourth District Court, Missoula County; R. E. McHugh Judge.

Action by Nick Baatz against R. B. Noble. Judgment for plaintiff and defendant appeals.


W. T Boone, of Missoula (Cooper, Stephenson & Glover, of Great Falls, on the brief), for appellant.

Louis P. Donovan, of Shelby, and Donovan Worden and John L. Campbell, both of Missoula, for respondent.


Plaintiff instituted this action to recover damages for personal injuries sustained while a guest in an automobile of, and while it was being driven by, the defendant. The parties to the action on the morning of March 3, 1935, left Great Falls, Mont., for Seattle, Wash., in a Plymouth sedan. Other passengers in the car were the brother and young son of the defendant. They stopped at Helena for a few minutes, secured some gas, and proceeded toward Missoula. At a point some 9 miles east of Missoula, on highway No. 10, they encountered a series of rough spots in the highway, causing the driver to lose control of his car which overturned, whereby plaintiff was injured.

Plaintiff's allegation as to negligence was as follows: "The defendant drove said automobile at a reckless speed of approximately seventy miles per hour and in a grossly negligent manner, and by reason of defendant's grossly negligent and reckless operation of said automobile, defendant recklessly and negligently caused the said automobile to overturn upon said highway," and thereby caused injuries to the person of the plaintiff. The answer denies negligence on the part of the defendant and that it was the cause of plaintiff's injuries. Affirmatively, contributory negligence on the part of plaintiff was pleaded, upon which issue was joined by reply.

A trial of the cause to the jury resulted in a verdict of $5,000 in favor of the plaintiff. Judgment was entered in conformity with the verdict. Motion for new trial was made, heard, and denied. The appeal is from the judgment.

The action is within the purview of our guest statute, sections 1748.1 to 1748.3, inclusive, Revised Codes. By appropriate and timely motions and objections, as well as by sufficient specifications of error, some five general contentions are made by the defendant, namely: (1) Insufficiency of the evidence to justify the submission of the cause to the jury on the question of gross negligence; (2) contributory negligence on the part of plaintiff; (3) excessive verdict; (4) errors in instructions; (5) insufficiency of the complaint as to allegation of gross negligence.

The road on which the accident occurred was an oiled road. The oiled portion was 18 feet wide, and from shoulder to shoulder it was 24 feet in width. At the point of the accident the road was straight for a distance of 2,400 feet. Commencing from the crest of a hill at the east end of such portion of the road, it sloped at a grade of 5 per cent. to the base of the hill, a distance of 900 feet. Approximately 100 feet from the base of the hill was rough area in the oiled portion of the road, extending for a distance of 150 feet, the easterly end of this area contained depressions or holes 10 to 12 inches in diameter, and at the westerly end of this area was a hole from 6 to 8 feet in length across the center of the oiled portion of the road, and from 2 to 3 feet in width, and from 6 to 8 inches in depth. These holes were places where the traffic had broken through the oiled surface material down into the base lying thereunder. The day previous a maintenance crew had filled these holes with loose gravel, which fast-moving automobiles would remove from these depressions. Danger flags were placed close to the oiled surface on the shoulders at the side of the road, one at each end of the rough spots. The flag on the east end was at least 100 feet from the rough spots; the top of the flag was 2 feet 6 inches above the surface of the surrounding ground, and about 1 foot square in area. The average speed of the car from Helena to Missoula was in excess of 50 miles an hour. Plaintiff testified that the speed of the car was about 60 miles per hour; that as the automobile approached this rough area it did not slow down; that the automobile hit the large hole, jumped up and down, went out of control, proceeded for a short distance, and turned over. Another witness testified that he observed the car passing over the rough portion of the road at a speed of from 45 to 50 miles per hour; that from the movement of the car it was indicated to the witness that it was weaving around in an effort to avoid the small holes. The accident happened in the daytime, between noon and 1 o'clock. Plaintiff testified that he saw the rough spot and the warning flags.

Testimony is found in the record tending in some degree to weaken some of the foregoing statements of fact, but where, as here, we are reviewing the orders denying motions for nonsuit and directed verdict, we must view the evidence in the light most favorable to the plaintiff [Mellon v. Kelly, 99 Mont. 10, 41 P.2d 49], and therefore we may not consider such additional facts.

As against the attack here made, the record must contain some substantial evidence tending to prove that the plaintiff's injuries were caused directly and proximately by the gross negligence and reckless operation of the automobile by the defendant. Nangle v. Northern Pacific Ry. Co., 96 Mont. 512, 32 P.2d 11; Cowden v. Crippen, 101 Mont. 187, 53 P.2d 98, 103.

Defendant in support of his contention has invited our attention to a number of decisions from the courts of Iowa, Michigan, and elsewhere construing gross negligence statutes to mean willful and wanton misconduct. We carefully considered the decisions from these jurisdictions adhering to this rule, in our deliberation on the Nangle Case, and specifically referred to several of them in our opinion. We there declined to follow decisions which thus construed statutes similar to our own, and likewise declined to follow decisions from courts refusing to recognize the existence of degrees of negligence. We are not disposed to depart from our views on this subject expressed in the Nangle Case.

The mere happening of an accident, standing alone, is not proof of negligence. Cowden v. Crippen, supra. On the question of speed, standing alone as establishing negligence, we have said in the Crippen Case: "The rate of speed at which defendant was driving, the exact rate of speed is of little importance. The pertinent question is whether the speed, whatever it may have been, was so excessive as to affect defendant's control over his car under the conditions which actually existed at that particular time and place, or as they reasonably appeared to defendant to exist. This is clearly the import of section 1742 [Revised Codes]."

We have these facts in the record here: Danger signs placed on the side of the road in the usual and customary places, which the defendant did not see but could have seen, and dangerous places in the road which he could see, and, from the movements of his car apparently in an attempt to avoid small holes, it may be reasonably inferred that he did see the dangerous places, but did not slow down on approaching them; continued at a rate of speed not substantially less than his usual speed on good roads. No two cases are exactly alike, but we held in the Nangle Case that it was properly submitted to the jury. We see no essential distinguishing features between the two cases. Hence we are impelled to, and do, decide that this case properly went to the jury on the question of gross negligence.

The argument in support of the contention that plaintiff was guilty of contributory negligence, as a matter of law, is based upon the fact that he testified he saw the danger signals and the rough places in the road and did not protest to defendant relative to the rate of speed in approaching this place of danger. We approve the ruling of this court as declared in the case of Marinkovich v. Tierney, 93 Mont. 72, 17 P.2d 93, 98, wherein it was said: "The primary duty of caring for the safety of the vehicle and those riding in it rests upon the driver; a...

To continue reading

Request your trial
5 cases
  • Leonidas v. Great Northern Ry. Co.
    • United States
    • United States State Supreme Court of Montana
    • October 27, 1937
    ......The verdict is not. so large as to shock the conscience and understanding, and. therefore must be upheld. Baatz v. Noble, 105 Mont. 59, 69 P.2d 579. . .          Other. instructions given and refused are complained of by. defendants. A review ......
  • Koppang v. Sevier
    • United States
    • United States State Supreme Court of Montana
    • January 12, 1938
    ...... the court. Chancellor v. Hines Motor Supply Co., 104. Mont. 603, 611, 612, 69 P.2d 764; Baatz v. Noble, . 105 Mont. 59, 69 P.2d 579, 582; Cowden v. Crippen, . 101 Mont. 187, 208, 53 P.2d 98; Fulton v. Chouteau County. Farmers' Co., 98 ......
  • Green v. City of Roundup
    • United States
    • United States State Supreme Court of Montana
    • April 18, 1945
    ...... duty of using ordinary care for his own safety. Black v. Martin, supra; Laird v. Berthelote, 63 Mont. 122,. 206 P. 445. [157 P.2d 1013.] Baatz v. Noble, 105 Mont. 59, 69. P.2d 579, 582: "We approve the ruling of this court as. declared in the case of Marinkovich v. Tierney, 93. Mont. 72, ......
  • Blinn v. Hatton
    • United States
    • United States State Supreme Court of Montana
    • June 17, 1941
    ...of grossly negligent and reckless operation is one for the jury. Nangle v. Northern Pac. Ry. Co., 96 Mont. 512, 32 P.2d 11; Baatz v. Noble, 105 Mont. 59, 69 P.2d 579. this rule is necessarily subject to the limitation that, if on the evidence reasonable men can come to only one conclusion, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT