Black v. Martin
| Decision Date | 24 October 1930 |
| Docket Number | 6659. |
| Citation | 292 P. 577,88 Mont. 256 |
| Parties | BLACK v. MARTIN. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Frank L. Riley Judge.
Action by Edith P. Black against S. P. Martin. Judgment for defendant and plaintiff appeals.
Reversed and remanded for a new trial.
William Meyer, of Butte, and Lester H. Loble and Hugh R. Adair, both of Helena, for appellant.
J. A Poore, of Butte, for respondent.
This is an action to recover damages for personal injuries sustained by plaintiff in a collision between a Buick automobile driven by Thomas Whalen, with whom plaintiff was riding as a guest and a Chevrolet automobile driven by defendant. The collision occurred at the intersection of Harrison avenue and Rowe road in Butte; the avenue runs north and south, the road east and west. The Buick car was going south, the Chevrolet north, and had they continued in the same directions the accident would not have happened. But defendant chose to turn to the left to go West on Rowe road. As he turned the cars collided; who was to blame?
Plaintiff alleged that the Buick car had the right of way, and that defendant negligently and without signal or warning suddenly changed his course, driving directly in the pathway of the approaching Buick, causing the collision. Plaintiff pleaded various city ordinances and the violation thereof by defendant. Defendant denied negligence on his part, himself pleaded city ordinances and the violation thereof by Whalen; alleged, inter alia, that Whalen was driving the Buick automobile at an excessive rate of speed and in a careless and imprudent manner; that Whalen was intoxicated; that plaintiff was riding on the front seat with him, and, with full knowledge and appreciation of his negligent and careless acts, made no effort to prevent him from so driving, and did not request him to stop or even to slow down. Defendant also pleaded accord and satisfaction. The affirmative allegations of the answer are denied by the reply.
Upon the trial plaintiff introduced testimony and rested. The only evidence offered by defendant was an agreement entered into between plaintiff on the one part, and Thomas Whalen and the National Cash Register upon the other. Thereupon the court, of its own motion, directed a verdict in favor of defendant, upon which judgment was entered, and from which this appeal is prosecuted.
1. Counsel for defendant insists that the judgment can be sustained for the reason that there is no substantial evidence tending to show that defendant was negligent. Without entering into a discussion of the evidence bearing upon the point, we are of the opinion that there was some substantial testimony tending to show that defendant drove from Harrison avenue into Rowe road and directly in front of the approaching automobile driven by Whalen, without giving a signal or warning of any kind. If this is so, he was negligent. It is true that plaintiff's evidence upon the point is not altogether clear, but, taking it all together, the question presented is one of fact for a jury, not one of law for the court.
We have often said that no cause should ever be withdrawn from the jury unless the conclusion from the facts necessarily follows as a matter of law that no recovery can be had upon any view which reasonably can be drawn from the facts which the evidence tends to establish. McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 P. 701; Boyd v. Great Northern Ry. Co., 84 Mont. 84, 274 P. 293, and cases cited. A nonsuit or a directed verdict in favor of the defendant in a personal injury case is proper only where the evidence is undisputed, or susceptible of but one construction by reasonable men, and that in favor of the defendant, or where the evidence is in such condition that, if the jury were to return a verdict in favor of the plaintiff, it would become the duty of the court to set it aside. McKeon v. Kilduff, 85 Mont. 562, 281 P. 345; Rau v. Northern P. Ry. Co., 87 Mont.--, 289 P. 580.
2. Whether the plaintiff, a guest, was guilty of contributory negligence was also for the jury. The rule is that the negligence of the driver of an automobile is not generally imputed to the passenger; but this does not absolve the passenger from taking such precautions for his own safety as under the particular circumstances are reasonable (Laird v. Berthelote, 63 Mont. 122, 206 P. 445; Grant v. Chicago, Mil. & St. Paul Ry. Co., 78 Mont. 97, 252 P. 382); in other words, the passenger is not absolved from the duty of using ordinary care for his own safety (Sherris v. Northern P. Ry. Co., 55 Mont. 189, 175 P. 269).
Plaintiff was riding on a front seat, a "jump-seat," of Whalen's car. Just before the accident she had turned and was conversing with her friends on the rear seat. She did not observe defendant's car turning to the west until, momentarily glancing to the front, she observed the car's headlights as it turned. The danger was sudden and imminent, and it does not appear that she could then have done anything to avoid the collision. Certainly, on his feature of the case, it cannot be said as a matter of law that contributory negligence can be attributed to her. Wanner v. Philadelphia & Reading R. Co., 261 Pa. 273, 104 A. 570; Le Clair v. Boudreau, 101 Vt. 270, 143 A. 401, 63 A. L. R. 1427.
Before reaching Rowe road, Whalen had been driving from 32 to 35 miles an hour, which is faster than the ordinance permits, but he had showed down to avoid a car coming into the avenue from the west, which turned south on the avenue. Even if it should appear that Whalen drove upon the crossing at a greater rate of speed than the ordinance permits and therefore was himself guilty of negligence, it does not follow as a matter of law that plaintiff, his guest, was, for the same reason, guilty of contributory negligence. Offerman v. Yellow Cab Co., 144 Minn. 478, 175 N.W. 537. The following expression of the Supreme Court of Minnesota is applicable in the present case: "In general, the primary duty of caring for the safety of the vehicle and its passengers rests upon the driver and a mere gratuitous passenger should not be found guilty of contributory negligence as a matter of law, unless he in some way actively participates in the negligence of the driver, or is aware either that the driver is incompetent or careless, or unmindful of some danger known to or apparent to the passenger, or that the driver is not taking proper precautions in approaching a place of danger, and, being so aware, fails to warn or admonish the driver, or to take proper steps to preserve his own safety." Carnegie v. Great Northern Ry. Co., 128 Minn. 14, 150 N.W. 164, 165.
3. The plaintiff was seriously injured. For a time she lay at the point of death and undoubtedly she is to a considerable extent crippled for life. The accident happened on July 16, 1927. In June, 1928, plaintiff entered into an agreement with Whalen and National Cash Register Company which reads as follows:
The trial judge instructed the jury to return a verdict for defendant upon the theory that Whalen, National Cash Register Company, and defendant were joint tort-feasors, and that, as plaintiff has but one cause of action against all persons responsible for her injury and damage, by...
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