Burns v. Fisher

• Decision Date: 31 July 1957
• Docket Number: No. 9469,9469
• Citation: 67 A.L.R.2d 1,313 P.2d 1044,132 Mont. 26
• Parties: , 67 A.L.R.2d 1 Frank D. BURNS, Administrator of the Estate of Frank E. Burns, Jr., Plaintiff and Appellant, v. B. A. FISHER, d/b/a Hi-Ball Contractors and H. A. Embrey, Defendants and Respondents.
• Court: Montana Supreme Court

Page 1044

313 P.2d 1044

132 Mont. 26, 67 A.L.R.2d 1

Frank D. BURNS, Administrator of the Estate of Frank E Burns, Jr., Plaintiff and Appellant, v. B. A. FISHER, d/b/a Hi-Ball Contractors and H. A. Embrey Defendants and Respondents.

No. 9469.

Supreme Court of Montana.

Submitted Feb. 25, 1957.

Decided June 20, 1957.

As Amended July 31, 1957.

G. J. Jeffries, Roundup, Ralph J. Anderson, Myles J. Thomas, Helena, for appellant. Myles J. Thomas and Ralph J. Anderson argued orally.

Coleman, Jameson & Lamey, Billings, O'Neil & Cavanaugh, Glendive, for respondent. Arthur F. Lamey, Billings, argued orally.

ANGSTMAN, Justice.

This action was brought to recover damages for the alleged wrongful death of Frank E. Burns, Jr. He was killed while sitting in a Ford truck which had stalled on the highway near Glendive when it ran out of gasoline. While Burns was thus sitting in the cab of the stalled truck another truck weighing about 30,000 pounds driven by defendant H. A. Embrey, and owned by the defendant Fisher crashed into the Ford truck and caused the latter to be overturned, resulting in the death of Burns.

At the conclusion of plaintiff's evidence the court sustained a motion for nonsuit and entered judgment in favor of the defendants. From this judgment plaintiff has appealed.

The motion for nonsuit was upon four grounds, namely: (1) that the complaint fails to state facts sufficient to state a cause of action; (2) the evidence shows that the injury and death were proximately contributed to or caused by the negligence of the deceased; (3) for failure to prove by competent, substantial evidence the material allegations of the complaint; and (4) failure of proof to show that there was any appreciable length of time between the wrong and the death, it being contended that the evidence shows that the wrong and the death were coincident in point of time, and hence that the plaintiff has failed to prove that the decedent survived the blow by an appreciable length of time.

The record discloses that the accident happened on May 15, 1952, at about onethirty or two o'clock in the morning; it occurred on the Circle-Glendive highway at a point about two miles west of Glendive. Burns was sitting in the cab of a one and one-half ton Ford truck facing east and on the south half of the highway. He put out no flares. The Ford truck had on the back thereof a tool shed made of aluminum sheeting over a frame. The tool shed was approximately 8 feet wide, 9 feet high and 12 feet long. The truck had two lights on the rear which when lighted would be visible to anyone approaching from the west for a distance of more than 2,000 feet. The defendant Embrey, as a servant and agent of the defendant Fisher whose truck he was driving, approached the highway at a point where the Burns truck was situated and was traveling at about 35 or 40 miles per hour. The road was dry, and there was room on the north side of the highway for him to pass the truck and trailer. His lights were dimmed or on low beam and Embrey thought they would not shine 150 feet when traveling empty as he was at the time. The record shows that as the Fisher truck approached the Burns truck two cars traveling in a westerly direction passed the Ford truck. Neither of them dimmed their lights and he said the lights 'kind of' blinded him, just for the instant. He did not see the parked truck in which Burns was sitting.

The two approaching cars were about 150 or 200 feet apart and the first one was west of the stalled Ford when its lights blinded Embrey, and the second one was east of the stalled Ford when its lights blinded him. After the defendant's truck struck the Ford truck it passed some 180 or more feet before coming to a stop; the truck operated by Embrey had a system of air-controlled brakes which were put out of commission by the impact and hence there was no means of stopping the truck mechanically.

After the cars came to a stop defendant Embrey got out, disconnected some wires and then a minute or two later spoke to Burns but received no answer.

A Mr. Evans, traveling easterly, came over the road a few minutes before the defendant Embrey did and saw the Burns truck parked on the highway and almost hit it. He stopped to talk to Burns and offered to assist him. Upon asking his trouble Burns replied that he was just out of gas and that another boy would be along from the Wagon Wheel (shown to be a place of business in Glendive) to give him some help. Evans said he was pretty sure that he reminded Burns that he did not have any flares out, and as Evans started to drive away Burns got back into the truck. He nearly ran into Burns' truck because he thought it was moving, and did not discover it was parked until he was about 50 feet from it. He said the tool house completely obstructed the back of the cab.

If any one of the grounds of the motion for nonsuit were well taken then the ruling thereon and the judgment must be sustained. The rule, however, is well established that in reviewing the court's action in sustaining a motion for nonsuit we must deem every fact true which the evidence tends to prove and interpret the evidence in the light most favorable to the plaintiff. Blinn v. Hatton, 112 Mont. 219, 114 P.2d 518; McCulloch v. Horton, 102 Mont. 135, 56 P.2d 1344. Yet, if the evidence is such that a recovery cannot be had on any reasonable view, it is proper for the court to take the case from the jury. Wilcox v. Smith, 103 Mont. 182, 62 P.2d 237; Lesage v. Largey Lumber Co., 99 Mont. 372, 43 P.2d 896.

One ground of the motion for nonsuit was that plaintiff failed to show that there was an appreciable length of time between the wrong and the death.

The complaint seeks recovery for the pain and suffering of the deceased, alleged to have been endured for an appreciable length of time before his death. It alleges that decedent was 19 years of age at the time of his death and had a life expectancy of 43.53 years, was earning approximately $3,000 per year, and contains an allegation that his estate has been damaged in the sum of $130,590, for which judgment was sought.

The complaint seeks recovery for the alleged cause of action existing in favor of decedent and which he might have maintained had death not resulted.

Plaintiff's counsel recognized that it was incumbent upon plaintiff to prove that death was not instaneous in order to recover within the rule of Melzner v. Northern Pac. Ry., 46 Mont. 162, 127 P. 146; Dillon v. Great Northern Ry., 38 Mont. 485, 100 P. 960, and other cases. The only evidence bearing upon the question whether decedent lived any appreciable length of time, and which plaintiff contends shows that death was not instaneous, is the following:

Lawrence Silvernale, the mortician, examined the body after it was removed to the mortuary in Glendive. He said: 'The right eye was solid black and slightly cut above that and there was a slight frothy expurge at the mouth,' which he said looked like soapsuds. He further testified: 'Q. Was it in the mouth? A. Or lips when we got the body to the mortuary.' He was asked: 'Q. Can a lung purge after death? A. In some cases, yes.'

There was no autopsy performed and no determination made of internal injuries.

Dr. Gallivan was asked a hypothetical question designed to elicit his opinion as to whether Burns lived an appreciable time after the impact. The question contained a supposition, 'that the undertaker in his examination found a swelling of the right eye.' The record however does not support the supposition that there was a swelling of the eye. All that the undertaker found was that the eye was 'solid black.'

Dr. Gallivan was asked: 'Q. Going back to the question, in the absence of knowledge, either internal abdominal, or other internal organ damage, you would not be in a position to testify when death occurred in this man, would you? A. The moment he died? I don't think you could put a time on it.' He further testified: 'Dr. Gallivan, let me ask you if one is killed instaneously as a result of a blow or trauma, will a swelling occur of the body subsequent to the death of the recipient of the blow or trauma? A. No, a swelling will not occur because if a man is dead there is no heartbeat or action to cause a swelling.'

This was and is the theory of plaintiff in support of his contention that death was not instantaneous. But as above noted the conclusion is based upon a premise not supported by the record that the eye was swollen.

Dr. Gallivan further testified that it would take a half a minute to a minute after a blow to, or in the vicinity of, the eye before a swelling would take place. As above noted there was no evidence of a swelling and hence there was no evidence upon which to base a conclusion that Burns lived an appreciable length of time after the impact. Hypothetical questions must be based upon evidence before the court at the time they are asked. State v. Riggs, 56 Mont. 393, 185 P. 165.

Careful consideration of all the evidence in the case leads us to the conclusion that the court was right in taking the case from the jury for another reason. There was no evidence of a want of care on the part of the defendant truck driver. The only reasonable conclusion to be drawn from all the circumstances is that the injury and death of the decedent was due to and proximately caused as a matter of law by his own negligence. Admittedly he did not put out any flares. He was an experienced truck driver and was cautioned about the danger in not doing so. A few minutes before the unfortunate accident he was out of the truck and in a place of safety and voluntarily chose to re-enter it and remain in the cab of the truck at a place which was known or ought to have been known to be dangerous. The view from the seat of the truck to the rear was obstructed by the tool house and the decedent should have known that it was entirely possible that approaching vehicles from the rear, no matter how...