Cowden v. Crippen

• Decision Date: 07 January 1936
• Docket Number: 7461.
• Parties: COWDEN et al. v. CRIPPEN.
• Court: Montana Supreme Court

53 P.2d 98

101 Mont. 187

COWDEN et al. v. CRIPPEN.

No. 7461.

Supreme Court of Montana

January 7, 1936

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

Action by Viola Cowden and others against Clarence Crippen. From a judgment for plaintiffs, defendant appeals.

Reversed with direction.

SANDS C.J., dissenting.

Speer & Hoffman, of Great Falls, and W. B. Leavitt, of Miles City, for appellant.

George W. Farr, of Miles City, and Carl L. Brattin, of Sidney, for respondents.

STEWART Justice.

Viola Cowden, Loretta Cowden, Lorna Crawford, and Ruth Cowden, heirs at law of L. E. Cowden, deceased, obtained a judgment in the district court of Custer county against Clarence Crippen. The action was prosecuted under the so-called "Guest Statute" of the state of Montana (chapter 195, Laws of 1931), which reads as follows:

"Section 1. The owner or operator of a motor vehicle shall not be liable for any damages or injuries to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire, nor for any damages to such passenger's or person's parent or guardian, unless damage or injury is caused directly and proximately by the grossly negligent and reckless operation by him of such motor vehicle.

Section 2. Any person riding in a motor vehicle as a guest or by invitation and not for hire, assumes as between owner and guest the ordinary negligence of the owner or operator of such motor vehicle.

Section 3. The ordinary negligence of the owner or operator of a motor vehicle as between owner and guest is imputed to any person riding in such vehicle as a guest or by invitation and not for hire."

It appears that the deceased Cowden, who was a farmer living near Sidney, Richland county, was desirous of attending a farmers' meeting at or near Miles City on December 4, 1933. By previous arrangement W. L. Bell, Godfried Miller, Daniel La Bonte, and L. E. Cowden arranged to ride to Miles City with Crippen as nonpaying passengers. All were desirous of attending a turkey grading school which was to be held by the United States Range Livestock Marketing Association. The school was scheduled to open at about 8 o'clock in the morning. At a very early hour Crippen picked up his passengers. Bell, who resided in Sidney, rode in the front seat with Crippen; the others were picked up at intervals between Sidney and Glendive. At Glendive the party stopped for breakfast, and later proceeded on towards Miles City.

The road from Glendive through Terry and to a point about twenty miles east of Miles City was a Federal-Aid highway, graded and graveled but not oiled. From this last-named point on to Miles City the road was what was known as oil-finished or surfaced. Crippen was an experienced driver, having owned eight automobiles and having driven several hundred thousand miles over a period of years. The car he was driving on this occasion was a 1933 Studebaker Regal sedan equipped with heavy, nonskid, six-ply tires. He had owned the car for about five months and had driven it about 2,500 miles. It was in good condition, and, according to all of the evidence, it ran normally, and he was a good driver. No complaint was made of his driving, although he made an average speed of from 45 to 50 and perhaps 60 miles an hour.

All the witnesses agreed that the speed was fairly uniform, and that there was no slipping or skidding or anything of an unusual character connected with the trip until they reached the point of the accident, which was 2 1/2 miles east of Miles City, and about 18 or 20 miles west of the beginning of the oil-surfaced road. The only change observed by the driver or the passengers between the oiled road and the graveled was that the car ran more smoothly, but about the same rate of speed was maintained.

At a point about two or three miles from the place of the accident a high school boy by the name of Tomten, driving a Chevrolet car, came into the road from the north and just ahead of the Crippen car. There is some difference of opinion as to the speed maintained by Tomten as he came onto the highway. Crippen, however, slowed his car down, and Tomten straightened out on the highway on the right side of the road. Immediately after that Crippen passed the Tomten car and moved over to the right side of the road himself, and proceeded at about the same rate of speed, that is, somewhere between 45 and 63 miles an hour.

It appears that Tomten decided to pass the Crippen car and proceeded to speed up. He gave notice of his desire by honking his horn. All of the passengers agree that he so signified his intention. Crippen said that he heard the signal, applied his brakes a few times with the purpose of slowing down, and that he moved farther toward the right side of the road to make way for the Chevrolet car. At this point the oiled surface of the road was 20 feet wide, with a graveled shoulder or extension of about 3 feet on each side thereof. Crippen's car moved over to the extreme right of the oiled surface. According to the witnesses who examined the tracks after the accident, the right wheels of the Crippen car moved along the edge of the oiled surface, part of the time on the gravel and part of the time on the oil; the left wheels being toward the middle of the road.

There was but one witness to the accident, in addition to the occupants of the car; that was one Fred Hansen, a farmer who lived some 60 rods from the road. He was in his yard and observed the two cars moving at what he denominated a high rate of speed, 50 to 60 miles an hour. He said he thought there would be an accident and he watched to see, and finally observed the occurrence. The Tomten car pulled in toward the Crippen car and a contact was made which resulted in the accident. Cowden was either instantly killed or so badly injured that he died shortly thereafter. The other occupants of the car were taken to Miles City and hospitalized.

In due time this suit was instituted. The particular acts of negligence charged against Crippen were: (a) That he failed to keep a proper lookout, particularly for vehicles attempting to pass; (b) that he was running at excessive speed, to wit, about 50 miles an hour; and (c) that he failed to keep his car under control so that he could apply the brakes or bring it to a stop on the traveled surface of the roadway or highway, without the car wheel skidding on or off the highway. The important allegations of the complaint are substantially as follows: That the highway upon which the party was traveling was a public highway known as Federal-Aid Highway No. 10; that for approximately 20 miles eastward from Miles City it was oiled, hard, and smooth; that the night before the accident there had been a fall of rain, snow, and sleet and a below-freezing temperature; that the surface of the highway was covered with ice, so that it was rendered dangerous and unsafe for travel; that the driver was required to keep and maintain a lookout and watch for other vehicles attempting to pass, and to operate his automobile at a slow rate of speed on account of the icy condition, and so as to keep the car under complete control; that, as the car proceeded over the highway, one Ernest Tomten, driving a Chevrolet car, attempted to pass Crippen's car, and that the two cars came together and collided by reason of the careless, negligent, and reckless manner in which Crippen was driving his car; that as a result of the collision the Crippen car slipped and skidded off the traveled portion of the highway, turned over several times, threw Cowden violently against the framework thereof, and injured him to such an extent that he died; and that the results were due to the concurrent wrongful acts of negligence of both Crippen and Tomten.

The answer denied the essential allegations of the complaint, but admitted the collision between the two cars. It alleged that the accident occurred by reason of the negligent and reckless driving of Tomten, who, it is alleged, drove his car into the Crippen car and forced it from the road. Thereafter reply was filed, and the cause came to trial; judgment was entered for the plaintiffs and against the defendant Crippen, who appealed from the judgment.

As we have suggested, there was but one eyewitness, aside from the occupants of the cars. Tomten did not testify nor make any explanation of his actions. The witness Hansen was approximately 60 rods away. W. L. Bell sat in the front seat with the driver; he testified that he heard the horn of the Tomten car, and that Crippen applied his foot brake and had slowed down some when the Tomten car came up to the Studebaker. At the inquest he gave the speed of the Crippen car as 50 miles an hour at the time of the signal, and said that thereafter Crippen slowed down to about 40. At the trial he gave the speed of the Crippen car as 63 miles an hour and said that Crippen slowed down to 60. He said that the Tomten car came onto the road at about 50 miles an hour but slowed down to 20 or 25 after it got on the road. He detailed the incident of Crippen's passing the Tomten car, and said that when Tomten in turn tried to pass the Crippen car he moved alongside Crippen, and he thought that the wheel of the Tomten car caught on the bumper of the Crippen car; he was sure that there was some kind of contact between the two cars, causing the Crippen car to leave the road. He had not observed any ice or any slippery condition of the highway until after the accident; immediately after the accident, when he got out he observed ice on the highway.

Miller who was riding on the back seat of the Crippen car, told of the approach of the Tomten car, and said it looked to him as though Tomten "was headed for us." He testified at...