Deverniero v. Eby
| Decision Date | 19 April 1972 |
| Docket Number | No. 12046,12046 |
| Parties | Margaret A. DeVERNIERO and James V. DeVerniero, Plaintiffs and Appellants, v. Mark Allen EBY, Defendant and Respondent. |
| Court | Montana Supreme Court |
Hutton, Schiltz & Sheehy, Billings, John C. Sheehy, (argued), Billings, for appellants.
Crowley, Kilbourne, Haughey, Hanson & Gallagher, Billings, George C. Dalthorp, (argued), Billings, Jack S. Ramirez, (argued), Billings, for respondent.
This is a negligence action brought by plaintiffs margaret A. DeVerniero and James V. DeVerniero, husband and wife, arising out of an automobile accident in Billings, Montana, involving plaintiff Margaret A. DeVerniero and defendant Mark Allen Eby, represented by his father, Allen H. Eby, appointed guardian ad litem. The case was tried to the district court sitting with a jury, in the thirteenth judicial district, county of Yellowstone.
Margaret A. DeVerniero and James V. DeVerniero are joined as plaintiffs in this action to recover damages for physical injuries sustained by the wife; and for the loss of the wife's services, companionship, and society sustained by the husband; all alleged to have been the result of the automobile accident. From a judgment entered on a verdict for defendant plaintiffs appeal.
The accident here involved occurred at 2:00 p. m., January 22, 1968, at the intersection of Alderson Avenue and Third Street West in the city of Billings. At the time of the accident, the streets were described as having snow, ice, and water on them, with temperatures warm enough so that the snow and ice were melting and water running. Plaintiffs did not maintain that the presence of slush or ice on the streets had any effect on the accident.
Defendant Mark Eby was driving a 1963 Pontiac station wagon in a northerly direction on Third Street West toward the intersection at a speed of approximately 25 miles per hour. Plaintiff Margaret DeVerniero was driving a 1966 Dodge Monaco in a westerly direction of Alderson Avenue toward the intersection at a speed of between 20 to 25 miles per hour.
Although testimony as to the speed of both automobiles ranged from 15 to 25 miles per hour, the only independent eyewitness, Beverly Runkle, testified the vehicles were approaching the intersection at approximately the same speed. Neither automobile was exceeding the speed limit of 25 miles per hour.
The intersecting streets were of equal status and were not marked with stop signs, stop lights, or warning approach signals. Neither party contested the fact that the presence of sufficient afternoon daylight and the absence of obstructions in the line of sight of both drivers gave each driver an unobstructed view for the safe operation of his automobile at the unmarked intersection.
It is uncontested that in such a situation as existed here-where two vehicles are entering or approaching an intersection from different highways at approximately the same time, that under Montana statute section 32-2170, R.C.M.1947, and sections 21-145 and 21-s70, Billings Traffic Code, the driver of the vehicle on the left is required to yield the right of way to the vehicle on the right. Here, defendant was on the left and plaintiff was on the right, therefore plaintiff was the favored driver.
At trial, Margaret DeVerniero testified that as she approached the intersection she slowed down to about 15 miles per hour and looked 'again and again both ways'; that she did not 'remember seeing anything'; and the first she saw of the other vehicle was 'Just before the impact.' Thus at trial, Mrs. DeVerniero was completely unable to remember seeing the other automobile approaching, although she did remember looking boty ways as she approached the intersection.
Plaintiffs' Exhibit 10, the investigation report filed by Police Officer John Colter, contained this interview with Mrs. DeVerniero immediately following the accident:
The same accident report also contained a similar interview with the defendant, Mark Eby, driver of the other vehicle:
At trial, defendant Mark Eby supplemented this report with his testimony, repeating that he did not see plaintiff's vehicle until he had entered the intersection, and 'I accelerated because I thought I could get out of the way in time.'
At the point of impact plaintiff's automobile struck the right rear door of defendant's automobile and came to rest in the intersection, which defendant's automobile continued down Alderson Avenue, spun around, and struck two parked automobiles. Defendant and his passenger, Mark Longo, were unhurt. Plaintiff was knocked momentarily unconscious when her head struck the steering wheel of her automobile. Shortly thereafter Officer Colter of the Billings Police Department arrived at the scene, made measurements, and talked to both parties.
The measurements taken by Officer Colter revealed the point of impact was approximately 12 feet into the intersection from the easterly boundary of Third Street West and 16 feet from the northerly boundary of Alderson Avenue. The north-south dimensions of the intersection are 32 feet and the east-west dimensions are 30 feet.
For the purposes of this appeal, the medical history of plaintiff Margaret DeVerniero's injuries is not recited, althought it was thoroughly explored at trial. It is sufficient to state that in the intervening period of time from the accident to the date of trial, she alleged spinal injuries which necessitated a spinal fusion, continuing migraine headaches, and a resulting 'thoracic outlet syndrome' which necessitated a separate operation to remove a rib.
Complaint was filed on Junuary 26, 1970, reciting two claims for relief and joining Margaret and James DeVerniero as plaintiffs. Margaret DeVerniero in her amended prayer at trial recited $7,500 special damages and $150,000 general damages. James DeVerniero similarly amended his prayer to recite $82,500 damages.
Trial commenced on December 1, 1970, and resulted in a jury verdict in favor of defendant, Mark Eby. During trial several motions and objections were made by counsel for plaintiffs which are the basis of this appeal.
Plaintiffs' issues presented for review are:
Issue 1. Plaintiff, Margaret DeVerniero, as a matter of law, was not guilty of contributory negligence; the issue should not have been submitted to the jury.
Issue 2. The court order of December 4, 1970, allowing defendant's counsel to inspect all medical records of plaintiff in two hospitals, irrespective of the relationship to plaintiff's physical condition from the accident, was an abuse of Rule 35, M.R.Civ.P. The order became prejudicial to the plaintiff and the court erred to plaintiff's prejudice when it allowed evidence of hospital records not related to the accident under the guise of impeachment.
Issues 4 and 5 concern instructions that were given or refused by the trial court.
Conceding his own negligence, defendant argues that the plaintiff in approaching and entering an uncontrolled intersection without observing the vehicle to her left and colliding with defendant's vehicle which had passed in front of her, is not free from contributory negligence and such factual issue should have been placed before the jury for its determination upon the facts.
Here, it is important to note that at the close of evidence at trial the court instructed the jury defendant was negligent as a matter of law, for failure to yield the right of way. Plaintiffs appeal on the basis of the denial of their motion for directed verdict on liability and the giving of jury instructions on contributory negligence.
The duty of drivers approaching and entering an uncontrolled intersection is contained in section 32-2170, R.C.M.1947:
* * *'
The record discloses the provisions of section 32-2170, R.C.M.1947, were stipulated to by counsel. City ordinance No. 3069, the Billings Traffic Code, in section 21-170 provides the identical wording as section 32-2170, R.C.M.1947.
Defendant's failure to yield the right of way constituted both statutorily recognized duty and breach of that duty. It is clear that by statutory directive automobiles approaching or entering an intersection are accorded the status of favored and disfavored drivers to facilitate the orderly movement of automobiles.
Defendant, conceding his failure to yield the right of way, nevertheless argues plaintiff was guilty of contributory negligence in her failure to keep a lookout and to control her automobile. Defendant argues that plaintiff's duty as she approached the intersection was to: (1) look ahead and laterally ahead, (2) operate her car at a speed no greater than was reasonably proper under the circumstances then existing, and (3) keep her car under control.
For authority defendant relies on Autio v. Miller, 92 Mont. 150, 165, 11 P.2d...
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