Blinn v. Hatton

Decision Date17 June 1941
Docket Number8169.
Citation114 P.2d 518,112 Mont. 219
CourtMontana Supreme Court

Appeal from District Court, Fifth District, Beaverhead County; H. G Rodgers, Judge.

Action by C. E. Blinn against H. L. Hatton to recover for injuries sustained while plaintiff was riding as a guest in defendant's automobile. From a judgment of nonsuit plaintiff appeals.

Reversed and remanded for new trial.

E. J Stromnes, of Great Falls, and J. L. Mayland, of Dillon, for appellant.

Gilbert & Gilbert and Theo. F. McFadden, all of Dillon, for respondent.


This is an appeal from a judgment entered after the court sustained the defendant's motion for a nonsuit. The complaint alleges that on the 16th day of July, 1938, the plaintiff "with the consent of and by the invitation of the defendant" was riding with the defendant in the defendant's automobile and that the defendant "ran, drove and operated said automobile in such grossly negligent, grossly careless and grossly reckless manner as to cause said automobile to be driven off said highway and overturn and plaintiff was by reason thereof severely, grievously, painfully and permanently injured."

As acts of negligence the plaintiff alleges (1) operation at excessive speed, (2) failure to keep the automobile under control, (3) permitting the car to run off the highway and overturn by driving on soft shoulders, (4) attempting to pass another automobile when not having sufficient space, and (5) failure to give reasonable signals.

Under the allegations of the complaint and the evidence in support thereof, the action is within the purview of our guest statute--sections 1748.1 to 1748.3, inclusive, Revised Codes. Therefore, in order for the plaintiff to recover he must show that his injuries were caused by the grossly negligent and reckless operation of the car by defendant, within the meaning of the statute.

In granting the motion for nonsuit the court determined that there was no evidence to sustain the charge of grossly negligent and reckless operation on the part of the defendant, and, hence, that recovery could not be had upon any view which could reasonably be drawn from the evidence. The plaintiff assigns the granting of the nonsuit as error.

In considering the propriety of the court's action in sustaining the motion, we must deem every fact proved which the evidence tends to prove, and interpret the evidence in the light most favorable to plaintiff. McCulloch v. Horton, 102 Mont. 135, 56 P.2d 1344; Meineke v. Intermountain Transportation Co., 101 Mont. 315, 55 P.2d 680; Park v. Grady, 62 Mont. 246, 204 P. 382.

The evidence shows that the plaintiff was a guest in defendant's car on a trip from Dillon to Bozeman and return. The facts tending to show negligence are the following: On the trip from Butte to Dillon, and prior to the accident, defendant demonstrated to plaintiff how fast his car could go. Plaintiff testified he (speaking of defendant) ran the speed of the car up "to between seventy-five and eighty miles an hour. I cautioned him and said that is faster than I care to travel. I said that I was in an accident prior to this when Mr. Cashmore was driving the car and I said that since then I had slowed down my driving and I didn't care to drive that fast. He slowed it down. We did travel about sixty to sixty-five miles an hour after that."

Plaintiff in explaining what happened just before the accident testified:

"Q. As you were proceeding on your way home from Butte do you recall overtaking a truck ahead at any point on Highway 91? A. Yes, I do.

Q. You may explain to the jury about where that was. A. Well, when we first observed the truck was on the Butte side of the Continental Divide as you come up what is commonly called Feeley Hill.

*** As we were coming up that we approached this truck. It was a light truck unloaded. It didn't have any load in it. It was traveling not exactly in the center of the road but it was traveling across the white line. Mr. Hatton approached it from the rear.

Q. About how fast was he driving at that time? A. I should judge we were going around fifty or fifty-five miles per hour, because it was upgrade we were not going as fast as we had been. The truck was going at a little lesser speed and we overtook the truck. Mr. Hatton just prior to overtaking it pulled to the left side of the road, apparently going to pass the truck.

Q. Did he give any signal to evidence that intent? A. Yes, as he got within a reasonable distance of the truck he gave a blast with his horn and the man in charge of the truck apparently didn't hear him, at least he didn't respond to the sign signal at all and he continued to drive where he was. He was driving in kind of a waving fashion; his truck coming closer to the center of the line but never entirely clearing the road. Mr. Hatton was cautious and when he saw that the man was not going to give the road he pulled back to his own position on the right hand side of the road. We were then approaching some of the curves which are near the top of this road on the west side of the divide, on the Butte side, and going around one of the curves only for a moment we lost...

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4 cases
  • Gilligan v. City of Butte
    • United States
    • Montana Supreme Court
    • 5 Marzo 1946
    ...the evidence tends to prove. Mellon v. Kelly, 99 Mont. 10, 41 P.2d 49; McCulloch v. Horton, 102 Mont. 135, 56 P.2d 1344; Blinn v. Hatton, 112 Mont. 216, 114 P.2d 518; Johnson v. Herring, Mrs. Mary DeLong, a witness for plaintiff testified that on the day of the accident and for eight years ......
  • Hart v. Kline
    • United States
    • Nevada Supreme Court
    • 9 Septiembre 1941
    ...or gross negligence, his motion for nonsuit was properly granted. Crosman v. Southern Pac. Co., 44 Nev. 286, 194 P. 839; Blinn v. Hatton, Mont., 114 P.2d 518. If, the other hand, reasonable men could fairly conclude from the evidence that plaintiff's injury was the proximate result of defen......
  • Westergard v. Peterson
    • United States
    • Montana Supreme Court
    • 16 Junio 1945
    ... ... Pratt v. Kistler, ... 72 Mont. 356, 233 P. 600; Nangle v. Northern Pac. R ... Co., 96 Mont. 512, 32 P.2d 11; Blinn v. Hatton, ... 112 Mont. 219, 114 P.2d 518 ...          As ... above noted the plaintiffs were guests of the defendant and ... in order ... ...
  • McCay v. Butler
    • United States
    • Montana Supreme Court
    • 23 Junio 1941

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