Fulton v. Chouteau County Farmers' Co.

Citation37 P.2d 1025, 98 Mont. 48
Case DateNovember 13, 1934
CourtUnited States State Supreme Court of Montana

Appeal from District Court, Cascade County; C. B. Elwell, Judge.

Action by W. M. Fulton against Chouteau County Farmers' Company and another. From a judgment for plaintiff, defendants appeal.


Clift & Glover, of Great Falls, for appellants.

W. F O'Leary, Donald Campbell, and J. P. Freeman, all of Great Falls, for respondent.


The defendants, Chouteau County Farmers' Company, a corporation, and O. A. Tschache, have jointly appealed from a judgment entered against them and in favor of the plaintiff W. M. Fulton, for personal injuries received when Fulton was struck by an automobile driven by Tschache in the performance of his duties as field manager for the defendant company.

The accident occurred about 7:30 p. m. on September 24, 1931, it being then dark and cloudy, on the "Y. G. B. Line Highway" at a point about 8 miles west of Great Falls. The highway has a hard, black surface 18 feet in width flanked by graveled shoulders, safe for travel, approximately 4 feet in width, thus giving a driving surface of 26 feet.

Just prior to the accident, W. C. Bunn, while driving east toward Great Falls, had a flat tire; he parked his car at the right-hand side of the highway half on and half off of the hard surface and went to the rear of his car to secure tools. As Fulton approached the Bunn car from the rear, also driving east, he was "disturbed" by the bright headlights of a car approaching from the east; he cut his speed to from 12 to 15 miles per hour and was "intently watching the headlights" when a companion warned him of the Bunn car, then but 12 feet ahead. He swung sharply to the left; simultaneously the approaching car, a truck driven by George Tallman, passed the Bunn car; thus for an instant the three cars were practically abreast on the highway. In this position the rear fender of the Fulton car "ticked" the rear fender of the Bunn car, and the front fender "ticked" the rear fender of the truck. Fulton stopped his car so quickly that it came to rest with its rear wheels opposite the door of the Bunn coupé, their running boards practically parallel and but 12 to 16 inches apart. Tallman swung the truck sharply to the right and then to the left, bringing his rear wheels to the outside edge of the shoulder of the road; threw out his clutch and coasted to a stop something like 160 to 200 feet west and to the rear of the double parked cars. Thus the entire south half of the highway was blocked--the Fulton car may have extended slightly beyond the center line; but after the passing of the truck there was ample space for cars to pass on the north half of the highway.

Fulton stepped from his car, walked west along the left-hand side thereof and to the rear where he met Bunn; he testified that he did so because he was concerned lest he had struck somebody down fixing a tire; that, looking west, he saw no car but the truck, and no light on the road except that which he thought was thrown from the truck headlights. He further testified that the time elapsing from his alighting from his car until he reached Bunn was but five to seven seconds, and that no words were exchanged between him and Bunn. In this he was corroborated by Bunn and the other occupants of the Fulton car--Goodwin and Mrs. Fulton. Approaching Bunn, Fulton was facing south and did not then look to the west.

While the above scene was being enacted, Tschache was approaching from the west. He testified that, as he neared the truck, he "dimmed" his lights, but that the truck driver did not dim his and that he, Tschache, was also disconcerted by the bright lights of the truck casting their rays in his eyes, as a result of which he did not see what was on the highway ahead of him. It must, however, be remembered that he passed the truck, not as did Fulton, at the place where the Bunn car was parked, but from 160 to 200 feet west thereof. He did not switch his lights back to their driving radius but continued driving with them "dimmed," which, in his type of car, meant that the lights were as bright as before but the rays were deflected to the roadway, in which position he could see objects perhaps 50 feet distant.

Tschache testified that a black object loomed up before him too late for him to stop or deflect his car, and that he then saw two men behind the parked cars. Two men in the truck testified that the Tschache car was traveling at the rate of 40, or from 40 to 50, miles per hour as it passed them. Tschache himself testified that he did not know how fast he was driving at that time, but introduced evidence to the effect that, owing to defective spark plugs, his car would not go over 30 miles per hour; that on encountering the light from the truck he took his foot from the accelerator and slowed down but, on passing the truck, he "might have hit the accelerator again"; that he could not say whether he was 25, 50, or 100 feet distant when he observed the "black object" ahead of him.

Tschache's car struck Bunn and Fulton, driving them against their respective cars and forcing the Bunn car, with its flat tire, 12 to 15 feet forward, and, with Fulton between, struck the Fulton car such a blow as to wreck the front of the Tschache car and the rear of the Fulton car and drive the latter, with its emergency brake set "two-thirds," a distance of 125 feet along the highway and into the ditch, with Fulton, a mangled leg caught over the bumper, dragging behind.

Fulton was so mangled that the attending surgeon said of him: "I don't recall that I have ever seen a man broken up as he was survive; I think mostly his will power, determination to live, kept him alive." He was in a hospital for more than six months and was then taken home where, for a year or more, he required the constant attendance of nurses and an attendant, and still requires constant attendance. He is a hopeless cripple with steel braces constantly worn from the hips to his heels; he can move but slowly on crutches. The expense of hospital and nurse hire to the time of trial exceeded $6,000, and his doctor bill was $10,000.

At the time of the accident Fulton was a robust and very active and energetic man of sixty-one years of age, engaged in oil production in this and several other states. He testified that he "opened up" the Pondera field in Montana and conducted his operations through the Fulton Petroleum Company, in which company his duties required him to be on his feet from fourteen to sixteen hours a day; that he received a "nominal" salary of one hundred twenty-five dollars a month from his company, and a like salary from a subsidiary company in Seattle, but that by reason of his activities his income had been from sixteen to eighteen thousand dollars per year, which was lost by reason of his disability.

This action was instituted by the filing of a complaint which charges negligence on twelve grounds, which include the alleged driving at a reckless speed in excess of 50 miles per hour in the nighttime, which speed was greater than reasonable and proper under the conditions at the time and place; failing to have defendants' car under proper control; failing to give warning; failing to keep a proper lookout; negligently driving into the plaintiff; failing to have sufficient lights, and driving with lights that were "weak and insufficient" to enable the defendant Tschache to discern objects at a distance sufficient to avoid hitting them while driving at a rate of speed in excess of 50 miles per hour; and "reckless operation" generally. The complaint further alleged that the plaintiff had a right to be on, and was then and there entitled to the use of, the highway, which was unobstructed for a distance of at least 250 feet west of where the plaintiff was standing. The plaintiff prayed for $60,000 general damages, and $16,112 special damages, and for his costs.

The defendants interposed separate answers in which they set up the defense of contributory negligence, alleging that the plaintiff negligently and carelessly stopped his car in the center of the highway so that, with the Bunn car, it "practically blocked" the highway from travel in either direction; that no tail-light was visible on either car; that plaintiff and Bunn were standing in the road "arguing and quarreling" and failed to look for approaching cars; and that plaintiff's failure to exercise "ordinary care, caution and prudence" directly and proximately contributed to his resulting injuries.

On the trial of the issues so framed, the defendants moved for a nonsuit at the close of plaintiff's case and for a directed verdict at the close of all of the evidence, which motions were denied; the jury was instructed and the issues were submitted to them for consideration. The trial resulted in a verdict for the full amount demanded in the complaint. The defendants moved for a new trial, which was denied; whereupon the defendants jointly perfected this appeal.

The first assignment of error is on the admission in evidence of two photographs of posed cars at the point of collision, purporting to depict the position of the Bunn and Fulton cars at the time they were struck by the Tschache car. It is contended that, as the evidence did not disclose that the posed cars were of the size and type of those figuring in the accident, and as the exact position of the two cars prior to the accident was in controversy, the photographs were inadmissible, and that photographs of posed objects are never admissible in evidence as proof.

As shown by the evidence, there is a slight difference in the width of different makes and types of cars. The Fulton car was 2 inches wider than the Tschache...

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