Boepple v. Mohalt

Decision Date03 February 1936
Docket Number7471.
Citation54 P.2d 857,101 Mont. 417
PartiesBOEPPLE v. MOHALT et al.
CourtMontana Supreme Court

Rehearing Denied March 4, 1936.

Appeal from District Court, Custer County; S.D. McKinnon, Judge.

Action by Mrs. Christoph Boepple against Louis Mohalt and others. From an adverse judgment, the named defendant appeals.

Judgment reversed, and cause remanded, with directions.

SANDS C.J., dissenting.

Raymond T. Nagle, Atty. Gen., John W. Bonner, Sp. Asst. Atty. Gen and M. J. Lamb, of Billings, for appellant.

S. C Ford, of Helena, and P. F. Leonard, of Miles City, for respondent.

STEWART Justice.

This is an appeal by the defendant Louis Mohalt, from a judgment entered against him in the district court of Custer county. The action arose out of an accident which occurred on United States highway No. 10, in Dawson county, on October 14, 1933:

Plaintiff and her husband, Christoph Boepple, together with their daughter, Mrs. Elma Nervas and her minor child, were returning to their home in Miles City from an automobile trip to Chicago. Plaintiff, Mrs. Nervas, and the child were riding as guests of Christoph Boepple, who owned the car, a Model A 1928 two-door sedan, and drove it throughout the trip. Plaintiff rode in the front seat with her husband. Their daughter and her baby (about eighteen months old) occupied the rear seat. They left Glendive about 3 o'clock in the afternoon and proceeded along the highway in a southwesterly direction toward Miles City. At about 3:50 they arrived at a point approximately 20 miles from Glendive. At this point Boepple was driving upon the right, or north, side of the road, and according to his own testimony at a speed of about 35 or 40 miles per hour. While proceeding in this manner, he collided with a Galion patrol, which was owned by the state of Montana and which at that time was being operated by defendant Mohalt, as an employee of the state highway department, for the purpose of maintaining the highway. This patrol, hereinafter called the grader, was headed in an easterly direction toward Glendive, upon its left, or the north, side of the road. Just prior to the collision defendant had brought the grader to a momentary stop. It was not moving forward at the time of the collision.

Seeking damages for injuries suffered by her as a result of the accident, plaintiff instituted this action against the three members of the state highway commission, W. E. Bowden, the division engineer, and Louis Mohalt, operator of the grader. In the complaint it was alleged that the state of Montana was the owner of the grader, which was equipped with a blade used in the maintenance and repair of the highway; that defendant Mohalt for some time prior to the accident "operated the said motor patrol on the left or wrong side of the road," and in such manner that it covered nearly all of the roadway, and that he stopped it at the place of the collision. It was alleged that at the point where the grader was stopped on its left, or northerly, side of the highway there was a very steep hill that arose directly towards the east, and that at the summit of this hill there was a sharp curve in the road, "so that the said motor patrol maintainer, as located, would not have been seen or observed by a traveler in an automobile while proceeding westerly towards said motor patrol on said highway until after the turn had been made at the top of said hill and at a point that would bring the automobile almost directly in front of the said motor patrol maintainer, and the said motor patrol maintainer could not be seen by the driver or occupant of an automobile approaching until within a very short distance of the said motor patrol"; that the grader, as so located, constituted a concealed and obscure obstruction in traffic, a public nuisance, and was dangerous to persons traveling on the highway. It was alleged that plaintiff and her husband were in the exercise of due care and caution and "were keeping a lookout ahead for other automobiles, vehicles and other obstructions on said highway," but that notwithstanding they could not observe the grader until it was too late to stop their automobile, and as a result ran into it; that it was the duty of defendants to erect and maintain guides, warning signs, and signals on the highway where the grader was being operated, and to equip the grader with a horn, whistle, and lights so that warning could be given to approaching traffic; that defendants negligently failed to perform such duties; that, because of such negligent acts of omission, neither plaintiff nor her husband was warned or had knowledge of the position of the grader until it was too late to avoid colliding therewith, and that as a result thereof plaintiff suffered personal injuries.

Separate demurrers were interposed by the respective defendants, and were overruled. Thereafter all the defendants joined in an amended answer, wherein they admitted some of the general allegations of the complaint, but denied all the allegations embodying charges of negligence, and by separate answer alleged that plaintiff was guilty of contributory negligence, and that the accident was due solely to the negligence of plaintiff and her husband.

The cause came on for trial, and, after plaintiff's evidence had been submitted, defendants moved for a nonsuit, which motion was granted as to all defendants except Mohalt. The action proceeded against him alone. At the close of all of the evidence he moved for a directed verdict; the motion was denied. The cause was submitted to the jury, and resulted in a verdict against him for $11,569.70, upon which judgment was entered. From that judgment defendant Mohalt appealed.

Although several specifications of error have been urged, as we view the case, the principal question involved, and the only question necessary of determination here, is whether the evidence is sufficient to sustain the verdict.

Plaintiff asserts and relies upon the following alleged items of negligence: (1) Failure of defendant, in operating the grader, to observe the law relating to traffic; (2) parking the grader at a concealed or hidden point of a curve near the brow of a hill; (3) failure to use sufficient and reasonable means adequately and reasonably to protect the traveling public by signs and warnings. She charged defendant with negligence in all these particulars, and alleged that such negligence was the direct and proximate cause of the accident, and her injuries resulting therefrom.

Defendant contends that plaintiff failed to prove that he was guilty of negligence in any of the particulars charged, or in any manner; and that, if there can be said to be any proof of negligence on his part, still there is no proof that such negligence was the proximate cause of the accident and the injuries resulting therefrom; on the contrary, he asserts that the evidence shows conclusively that the accident was due solely to the negligence of Boepple.

In order for plaintiff to recover, it was, of course, incumbent upon her to prove, first, that defendant was negligent in at least one of the particulars charged, and, second, that such negligence was the proximate cause of her injuries. Stones v. Chicago, M. & St. P. Ry. Co., 59 Mont. 342, 197 P. 252; Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025.

The accident occurred in the middle of the afternoon; no element of darkness was involved. The road was gravel surface. Plaintiff testified that at a point some 4 or 5 miles east of the place of accident she and her husband saw a red flag alongside the road; that they remarked about that flag; that, after seeing it, her husband slowed the car down somewhat (to 30 miles per hour or less); that, after seeing the red flag, she (plaintiff) kept a rather close lookout for quite a ways, because she thought she had better keep a lookout for some obstruction; that just before she saw the grader she was talking to her daughter and the baby in the back seat, and, when she again faced the front and first observed the grader, they were "right square in front of it," and it so frightened her that she "must have fainted." She said that when she first saw the grader they were too close to avoid striking it; that it was clear over on the north side of the road; that just prior to the collision, if she had been looking, there was nothing aside from the brow of the hill to have interfered with her seeing the grader at a distance of 200 feet or more; that there was a little breeze blowing from the north to the south or southeast across the road; that there was a little dust but not enough to obstruct the view nor to have interfered with her seeing the grader.

Boepple testified to substantially the same facts. He stated that, after seeing the red flag, he slowed his car down some for a while (about three miles), but that just before colliding with the grader he had again increased his speed somewhat. He fixed his speed just prior to the collision at approximately 35 or 40 miles per hour. He said that just before the accident he passed a car which was going in the opposite direction, and about the same time he passed a mailbox on the side of the road to his right; that when he first saw the grader he was too close to avoid striking it; that he "slammed the brakes on" and tried to turn to the right, but that it was too late to avoid a collision. He testified that his eyesight was good, but that he would have had to be within 119 1/2 feet of the grader in order to see which side of the road it was on, that he could have stopped his car in 150 feet if he had seen the grader, and that, if he could have seen it at 190 feet, he could have stopped.

Defendant's Exhibit 2 is a rectangular signboard mounted on a steel post about 4 feet in...

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6 cases
  • State ex rel. Matson v. O'Hern
    • United States
    • Montana Supreme Court
    • February 17, 1937
    ...P.2d 3, decided February 8, 1937, and not yet reported [in State Reports]; Cowden v. Crippen, 101 Mont. 187, 53 P.2d 98; Boepple v. Mohalt, 101 Mont. 417, 54 P.2d 857; State v. McWilliams, 102 Mont. 313, 57 P.2d Doyle v. Union Bank & Trust Co., 102 Mont. 563, 59 P.2d 1171; Herrin v. Herrin,......
  • In re Nelson
    • United States
    • Montana Supreme Court
    • July 23, 1936
    ...filing the petition for rehearing has expired. Indeed, the witness (Associate Justice) STEWART testified that in the case of Boepple v. Mohalt (Mont.) 54 P.2d 857, the Independent published an article commending the majority opinion in that case and condemning in no uncertain terms the writ......
  • Ralph v. MacMarr Stores
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    • Montana Supreme Court
    • December 5, 1936
    ...by looking. *** He will not be permitted to say that he did not see what he must have seen, had he looked." See, also, Boepple v. Mohalt, 101 Mont. 417, 54 P.2d 857. A reading of the cases wherein this rule has been discloses that in most instances its application was restricted to the driv......
  • Hill v. Haller
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    • Montana Supreme Court
    • April 27, 1939
    ... ... 404, 211 P. 214; Whitney v ... Bertoglio Mercantile Co., 65 Mont. 358, 211 P. 323; ... State v. Gunn, 85 Mont. 553, 281 P. 757; Boepple ... v. Mohalt, 101 Mont. 417, 54 P.2d 857, and others relied ... upon by defendant ...          One ... other point must be ... ...
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