Carey v. Guest
| Citation | 258 P. 236,78 Mont. 415 |
| Decision Date | 05 March 1927 |
| Docket Number | 6075. |
| Parties | CAREY v. GUEST. |
| Court | United States State Supreme Court of Montana |
Appeal from District Court, Lewis and Clark County; A. J. Horsky Judge.
Action by John L. Carey against C. L. Guest. Judgment for plaintiff and defendant appeals. Reversed and remanded.
Gunn Rasch & Hall, of Helena, for appellant.
Lester H. Loble and Hugh R. Adair, both of Helena, for respondent.
This is an action brought to recover damages for personal injuries sustained by plaintiff and alleged to have been caused by the plaintiff having been struck by an automobile, owned and operated by defendant.
Plaintiff alleges, among other things, that Main street is a business street in the city of Helena, with Grand street abutting on it; that a street car track, on which street cars are operated, extends north and south on Main street, past the place where Grand street abuts on Main, and that at that place there is a stopping place for street cars; that in the afternoon of October 5, 1925, while a street car, headed south, was stopping there, discharging and receiving passengers, on its right-hand (the west) side, plaintiff started across Main street, going from west to east in the rear of the street car, and, as he passed from behind the car and stepped beyond it, further into the street, defendant, driving his automobile and going north, on the east side of the street car, without warning, ran against plaintiff and struck him, and that plaintiff, without any fault on his part, was thereby knocked down and dragged some distance and injured. Plaintiff alleges that this was done unlawfully, negligently, recklessly, and carelessly. The grounds of negligence upon the part of defendant, alleged in plaintiff's complaint, are: (a) Dangerous and unlawful rate of speed; (b) failure to give warning of the approach of the automobile; (c) passing the street car at an unlawful distance; (d) failure to have the automobile under control; (e) failure to keep a proper lookout.
Defendant answered, denying the allegations of negligence, denying information sufficient to form a belief as to plaintiff's alleged injuries, and denying all liability. Defendant further pleaded contributory negligence on the part of plaintiff, and, further, a certain ordinance of the city of Helena. Plaintiff replied.
The case was tried with a jury. At the close of all of the evidence, counsel for defendant moved the court to direct a verdict for defendant. The motion was denied. The jury returned a verdict for plaintiff and judgment was rendered accordingly. Defendant appealed from the judgment and assigns seven specifications of error. Plaintiff makes a number of cross-assignments of error. In the main, we shall consider defendant's specifications of error in the order in which they are argued in defendant's brief.
Counsel for defendant first argue specification of error numbered 7-that the court erred in rendering judgment for plaintiff. We begin with it.
The judgment is based on the verdict of the jury. A judgment will not be disturbed when there is substantial evidence to support it. Tuttle v. Pacific Mutual Life Ins. Co., 58 Mont. 121, 190 P. 993, 16 A. L. R. 601. When there is a substantial conflict in the evidence the Supreme Court, on appeal, will not reverse the judgment on the ground of insufficiency of the evidence. Sanborn Co. v. Powers, 58 Mont. 214, 190 P. 990.
Counsel for defendant contend there is no substantial evidence to sustain the judgment. That requires a careful perusal of the evidence. We have given it, and we cannot agree with the contention of counsel. We think there is substantial evidence of negligence on the part of defendant and that there is a substantial conflict in the evidence upon that issue. Of course, if there is a substantial conflict in the evidence, necessarily, there is substantial evidence to support the judgment.
We are to presume that the judgment is correct, and, in aid of that presumption, "every legitimate inference will be drawn from the evidence." Security State Bank v. Soule, 70 Mont. 300, 225 P. 127.
There was much testimony of statements and admissions of defendant, contrary to his interest; statements and admissions that he was wholly to blame, that it was all his fault, that he did not see plaintiff, that he was going at the rate of about 18 or 20 miles an hour. These alone furnish sufficient evidence to sustain the judgment. True, defendant denied or qualified all of those statements and admissions, but that only raised a question for the jury and the jury resolved it in favor of plaintiff.
Counsel for defendant contend the testimony of such statements and admissions is so inherently improbable that it should be rejected as unworthy of consideration. We cannot assent to that contention. We think testimony of statements and admissions, against his interest, of a defendant in such an action as this, wholly relevant, competent, and material and very proper evidence. If such a defendant, while the incident is fresh in his mind, says he is to blame, we can see nothing inherently improbable or unreasonable about it, nor anything about it so absurd as to brand it as incredible or untrue. If the defendant may deny making the statements, that will present an issue for the jury, and it is the province of the jury to decide it.
Counsel for defendant contend such testimony is the weakest kind of testimony and cite some decisions in support of the contention. Those decisions, however, refer to testimony as to statements, in his lifetime, of a deceased person, made in his favor or such as operate in favor of his representative, successor, or beneficiary. Admissions of a party to an action, contrary to his interest, when he is alive and can contradict them are on an entirely different footing.
Aside from the testimony of the statements and admissions to which we have referred, there is other evidence tending to prove that, at the time of the occurrence, defendant was driving at a speed of more than 12 miles an hour; that, after striking plaintiff, defendant's machine ran from 15 to 20 feet before stopping; that, at the time of the occurrence, he was not keeping a lookout for pedestrians; that at the time he was talking to a passenger; that he gave no warning, by sounding a horn or otherwise, of his approach. Of course, that is only one side of the case. There is no lack of evidence to the contrary, but we cannot say the substantial evidence is all on one side. We shall not go further into detail. Suffice to say, we consider there is not only a substantial but a very decided conflict in the evidence.
Counsel for defendant next argue their specification numbered 6-that the court erred in overruling defendant's motion for a directed verdict for defendant-and we take up it.
"It is only where the evidence is undisputed or susceptible of but one conclusion by reasonable men that the court is authorized to take a case away from the jury and render judgment." Jepsen v. Gallatin Valley R. Co., 59 Mont. 125, 195 P. 550.
"Every fact will be deemed to be proved which the evidence offered by plaintiff tends to prove." Koerner v. Northern Pacific Ry. Co., 56 Mont. 511, 186 P. 337.
All we have said as to the first discussed specification of error applies here. In addition, the plea of contributory negligence more properly may be considered here. Of course, if defendant was negligent in any of the specified particulars, and yet if a preponderance of the evidence shows plaintiff to have been guilty of contributory negligence, he should not have prevailed. If there was a substantial conflict in the evidence, however, on that issue, it was a question of fact for the jury.
Contributory negligence is a matter of defense, to be established by a preponderance of the evidence. Neilson v. Missoula Creamery Co., 59 Mont. 270, 196 P. 357. If the issue of contributory negligence is a fairly disputed question of fact, it must be resolved by a jury. Williams v. Hample, 62 Mont. 594, 205 P. 829.
We have said we consider there is a substantial conflict in the evidence as to alleged negligence of defendant. We are of the further opinion there is a substantial conflict of evidence as to contributory negligence. From all of the evidence, it might be inferred there was or was not contributory negligence. Therefore it was a question for the jury.
In a personal injury damage action, we can scarcely conceive that the trial court should direct a verdict for the defendant when there is testimony, even though denied, that the defendant had repeatedly said it was all his fault and he was wholly to blame. We hold the trial court did not err in refusing to direct a verdict for defendant.
Specifications of error numbered 1 and 2 relate to rulings of the court on admission or rejection of evidence. We see no error in the rulings. The statistical table offered and admitted, then stricken, we do not think was sufficiently authenticated or qualified nor was there laid a proper foundation for its admission, if it may be admissible at all. The evidence sought to be elicited from a policeman we do not consider competent.
The remaining specifications of error relate to giving or refusing to give offered instructions. We shall discuss but one, specification numbered 3.
Defendant's offered instruction numbered 3, in effect, stated that a pedestrian has the right to cross a public street at any place, but greater caution is required of him if he cross between crossings prepared for pedestrians than at such crossings, because greater caution is required of automobilists at crossings than between; that crossings are prepared especially for pedestrians, and automobilists must bear this in mind and be more cautious at such crossings that,...
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