Freisheimer v. Missoula Creamery Co.

• Citation: 210 P. 329,64 Mont. 443
• Decision Date: 19 October 1922
• Docket Number: 4868.
• Parties: FREISHEIMER v. MISSOULA CREAMERY CO.
• Court: Montana Supreme Court

210 P. 329

64 Mont. 443

FREISHEIMER v. MISSOULA CREAMERY CO.

No. 4868.

Supreme Court of Montana

October 19, 1922

Commissioners' Opinion.

Appeal from District Court, Missoula County; Asa L. Duncan, Judge.

Action by George Freisheimer against the Missoula Creamery Company. Judgment for defendant, and from an order denying motion for new trial, plaintiff appeals. Affirmed.

Patterson & Heyfron, of Missoula, for appellant.

William Wayne, of Missoula, for respondent.

FORD C.

This action was instituted to recover damages for destruction of property and for personal injuries occasioned by a collision between plaintiff's automobile and defendant's truck.

The plaintiff in his complaint sets forth two causes of action. In his first cause of action he alleges the incorporation of the defendant and the city of Missoula, and that the city passed an ordinance, which provided that a vehicle meeting another should turn to the right; a vehicle turning into another street to the left shall pass around the point of intersection of the two streets, said point being the center of intersection of said streets; that on the 18th day of June, 1919, the plaintiff was the owner of a certain Buick roadster; that on said date the defendant was the owner of a certain motor truck, which at such time was being used operated, and managed by the servants and agents of defendant; that on said 18th day of June, 1919, the plaintiff was lawfully upon said Alder street near the intersection of said Owen street, headed in a westerly direction, on the right side of said Alder street, being on the north side thereof, and being to the right and north of the regularly traveled roadway upon said street, and being in the management, use, and control of said Buick roadster, and being the driver thereof.

"That while the plaintiff was so engaged, and while he was in the exercise of due and ordinary care for his own safety, the said defendant, by its servant and agent driving said motor truck of defendant, who was in the possession, use management, and control thereof, carelessly and negligently and in violation of the provisions of said ordinance of the city of Missoula No. 445 ran, drove, and propelled said truck along and over said Owen street from north of the north intersection of said street with Alder street in a southerly direction, and in an easterly direction upon and into said Alder street, upon his left, being the north side of said street, and carelessly and negligently ran, drove, and propelled said motor truck and vehicle upon and into said Alder street in an easterly direction from said Owen street carelessly and negligently failing and omitting to turn into said Alder street on his right, being the south side of said street, and carelessly and negligently failing and omitting to pass the center point of the intersection of said Alder street and Owen street before running, driving, and propelling said motor truck and vehicle, from said Owen street to and into said Alder street; that said defendant, by its servant and agent in charge of said car, carelessly and negligently failed and omitted to so run, operate, manage, and control said motor truck in turning said corner of Alder street and Owen street that it had complete control of said motor truck; that as the plaintiff was in his proper place, upon the north side of said Alder street, headed in a westerly direction and east of the east intersection line of said Owen and Alder streets, the said defendant by its servant and agent in charge, management, and control of said motor truck so carelessly and negligently managed, drove, ran, operated, and propelled said motor truck that it ran into and against plaintiff's said automobile; that by reason thereof and of the premises and of the acts, conditions, conduct, omissions, carelessness, and negligence of the defendant, its servant and agent, in this complaint alleged, the said motor truck of said defendant ran into and against plaintiff's automobile, and struck plaintiff's automobile with great force and violence, and severely jarred, jolted, and shoved plaintiff's automobile, by reason of which said automobile was bent, broken, injured, and damaged to such an extent that it was thereby caused to be and become valueless and of no use or benefit to the plaintiff; that by reason thereof and of the premises and of the acts, conditions, conduct, omissions, carelessness, and negligence in this complaint alleged, all of which were known to the defendant and its servant and agent driving said truck, or in the exercise of ordinary care might and should have been known, plaintiff became and is damaged in the sum of $1,750 damages to said automobile."

The second cause of action is the same as the first, excepting the plaintiff alleges injuries to his person. In its answer the defendant admits the incorporation of the defendant and the city, the passage of the ordinance referred to, that the defendant was the owner of the truck, and that the same was being used, operated, and managed by its servants and agents; denies the remaining allegations of the complaint, and sets forth the following affirmative defense:

"That on, or about the 18th day of June, 1919, one of the employés of the defendant company was in the regular course of his employment in charge of and driving a motor truck belonging to the defendant company; that in the regular pursuit of his employment on said day he started from a point in the alley which runs in the rear of the property of the Missoula Creamery Company and proceeded westward to the intersection of said alley with Owens street in the city of Missoula, Mont., crossed said Owens street to the west side thereof, and proceeded south on the west side of said Owens street, which was the right-hand side thereof, to the intersection of said Owens street with Alder street in said city of Missoula, intending to continue southward across said Alder street to the south side thereof and then turn to the east and proceed eastward on the south and right-hand side of said Alder street; that said motor truck was being driven by said employé of the defendant at a rate of approximately 6 or 7 miles per hour and

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