Flynn v. Helena Cab & Bus Co.

• Decision Date: 29 April 1933
• Docket Number: 7082.
• Parties: FLYNN v. HELENA CAB & BUS CO. KIMPTON v. SAME.
• Court: Montana Supreme Court

21 P.2d 1105

94 Mont. 204

FLYNN v. HELENA CAB & BUS CO.

KIMPTON v. SAME.

No. 7082.

Supreme Court of Montana

April 29, 1933

Rehearing Denied May 23, 1933.

Appeal from District Court, Lewis and Clark County; A. J. Horsky Judge.

Actions by Robert Flynn and A. M. Kimpton, respectively, against the Helena Cab & Bus Company, a corporation. Judgments for plaintiffs, and defendant appeals.

Affirmed.

M. J Thomas and Gunn, Rasch, Hall & Gunn, all of Helena, for appellant.

Smith Mahan & Smith and J. R. Wine, all of Helena, for respondents.

ANGSTMAN Justice.

This action arose out of a collision between two automobiles at the intersection of Davis and Breckenridge streets in the city of Helena. The collision occurred on February 3, 1931. On that day Flynn and Kimpton were traveling north on Davis street in a Ford coupé, owned and driven by Kimpton. The other car was a taxicab proceeding westward on Breckenridge street; it was owned by defendant and then being driven by John Patchett, its employee. The cars collided at the intersection, resulting in personal injuries to Flynn and damage to the Kimpton car. These actions followed. The two cases were tried together by agreement of the parties. Both plaintiffs prevailed. Defendant appealed.

The complaints in the two actions are identical, except as to damage claimed. They charge negligence on the part of defendant's employee, Patchett, based upon excessive speed, failure to keep a lookout, failure to give warning, and wantonly turning his car to the right and driving into that in which plaintiffs were riding when there was ample room to pass by without a collision.

Subdivision (d) of paragraph V of the complaint alleges: "That there was then and there in force a duly and regularly passed and approved ordinance of the city of Helena, Montana, providing in substance that in running upon streets and avenues automobiles should not exceed the rate of twenty-five miles per hour and that the said John Patchett, chauffeur aforesaid, was then and there violating the said ordinance by going at a rate of speed greatly in excess of twenty-five miles per hour, or greater, over and across said intersection."

The answer was a general denial and a plea of contributory negligence on the part of plaintiffs in violating an ordinance, the material parts of which provide that "vehicles meeting and passing at street corners or intersections shall be governed by the following rules except as herein otherwise provided: Each driver of a car or other vehicle approaching a street corner or road intersection shall keep careful watch of all cars, or vehicles, approaching said street or road intersection from his right, and shall give right of way to every such car, or vehicle. The intention of this provision being that all drivers of vehicles shall be required to maintain a particularly careful watch upon all vehicles to their right, or approaching from the right at crossings and shall give preference and right of way to all such vehicles and must halt or slow down sufficiently to allow such vehicles to pass in front of them."

Plaintiffs' evidence was to the effect that when they were 40 feet south of the south line of the intersection of Davis and Breckenridge streets they saw defendant's car on Breckenridge about 300 feet from the intersection. When plaintiffs entered the intersection, defendant's car was about 150 feet from it. Kimpton's car was going about 18 miles per hour, defendant's more than 40. The width of the intersection from the south to the north line is 56 feet, and from east to west about 40 feet. Plaintiffs had gone 50 feet in crossing the intersection before the car was struck. It was struck on the right rear wheel and fender by the left front fender of defendant's car. As the Kimpton car entered the intersection, Flynn said to Kimpton, "Look out, this fellow is coming." As the Kimpton car passed a manhole near the center of the intersection, Flynn again said, "Look out for this fellow, he is going to get you." Kimpton accelerated his speed and turned to his left. Patchett then applied his brakes and skidded 25 or 30 feet, then released the brakes and turned to the right, striking the Kimpton car. The Kimpton car was past the center of the intersection before defendant's car entered it.

There was evidence that, had the defendant's car gone straight ahead or turned slightly to the left rather than to the right, no collision would have taken place. As a result of the impact the Kimpton car was overturned and came to rest on the north crosswalk facing east. Defendant's car came to a stop facing north. Besides those occupying the cars, there were two eyewitnesses to the collision. Jean Heller observed it while standing on the sidewalk at the northeast corner of the intersection. She said, "I watched those two cars continuously until they came together. As to why I did that, well, because the rate the taxi was going and the way the coupé was coming down the street, I was sure there was going to be an accident."

Mrs. Raymond stood at the southwest corner of the intersection when the collision occurred. She said: "I was standing right on the corner, in the expectation there would be a smashup; that was my expectation; the taxi did not slow up its speed at all. You state you know that is what I have been telling you. I was standing there, expecting something to happen, expecting there would be a crash. I had that notion or that idea the very moment I saw the Ford going to the north, and the other car coming west, and then, I just stood there and watched the two cars come together; that is the idea. I do not know how to answer the question as to whether I paid very much attention as to how fast they were going."

Over defendant's objection, plaintiff was permitted to introduce in evidence subdivision (n) of section 38 of title 8 of Ordinance No. 1138, which in part provides that upon the streets in question "vehicles shall not exceed a speed of 25 miles per hour nor less than 12 miles per hour."

At the close of the evidence, the court, over defendant's objection, permitted the complaint to be amended by pleading subdivision (n) of section 38 of title 8 of Ordinance No. 1138, in haec verba, which was the ordinance referred to in subdivision (d), paragraph V, of the original complaint.

Patchett, testifying for defendant, testified that as he was proceeding westward on Breckenridge street and when 130 or 140 feet east of the intersection with Davis street, he saw the Ford car 100 feet south of the center of the intersection. The record shows that at the northeast corner of the intersection there is a brick building extending from that corner of the intersection eastward about 75 feet, obstructing the view to the north of one traveling westward. The witness said he was looking to his right as he came to the intersection, though he could not get a view down Davis street to the north until within a few feet of the intersection and until he passed the southwest corner of the building. When he reached this point, he said he turned his eyes to the front and in the direction in which he was going and saw the Kimpton car. The record shows that at the intersection Breckenridge street turns at an angle of 30 degrees northward as it proceeds westward from Davis street, and Patchett testified that in making the turn to the right immediately before striking the Kimpton car, he but followed the traveled portion of the street.

At the close of plaintiffs' evidence defendant moved for a nonsuit, and at the close of all the evidence for a directed verdict. Both motions were denied.

The court instructed the jury that if plaintiffs' car coming from the left "was actually crossing the street intersection" when the taxicab to the right was such distance away that its movements "could not reasonably be supposed to create any danger that the two cars would collide," then plaintiffs were not required to wait until the taxicab had passed, and that, if the driver of the taxicab drove his car "at an unlawfully high and unexpected rate of speed over such intervening distance and against the Ford car already in the intersection, thereby causing the collision complained of," then their verdict should be for plaintiffs, unless they were guilty of contributory negligence.

And by its instructions the court told the jury that if Patchett, when he approached the intersection, saw the Kimpton car he had a right to assume, and act upon the assumption, that it would be operated in compliance with the ordinance and that it would stop and give the taxicab the right of way, "provided the conditions and circumstances obtaining at that time were such that an ordinarily prudent person would conclude that it was unsafe to attempt to cross said intersection in front of the approaching taxicab," and that it was incumbent upon plaintiffs to give the taxicab the right of way only "if, in view of the conditions then obtaining, in the exercise of ordinary care for their own safety, the said Kimpton or Flynn should have stopped or slowed down."

It is the defendant's contention that the court erred in its instructions with respect to the effect of the ordinance pleaded by defendant. The court, it will be noted from the instructions, took the view that the ordinance did not prescribe an absolute rule of conduct in every case, but that it required a traveler to yield the right of way to those on the right only when, under the circumstances, a reasonably prudent man would do so. Defendant contends that the ordinance prescribes an absolute mandatory duty to yield the right of way under the facts here disclosed, and requested instructions to that effect, which were refused.

There are some cases lending support to defendant's view....