Graham v. Rolandson, 11080

Citation150 Mont. 270, 435 P.2d 263
Case DateDecember 20, 1967
CourtUnited States State Supreme Court of Montana

Page 263

435 P.2d 263
150 Mont. 270
James W. GRAHAM, Plaintiff and Respondent,
Jean ROLANDSON, Defendant and Appellant.
No. 11080.
Supreme Court of Montana.
Submitted Sept. 14, 1967.
Decided Nov. 30, 1967.
Rehearing Denied Dec. 20, 1967.

[150 Mont. 273]

Page 265

Herron & Reber, Helena, Patrick F. Hooks, Townsend, Clayton R. Herron, (argued) Helena, for appellant.

Rankin & Acher, Helena, Arthur P. Acher, (argued) Helena, Larry O. Foss (argued) Townsend, for respondent.

HASWELL, Justice.

This is an appeal by defendant from a judgment rendered against her in the sum of $15,915.60 in the district court of Broadwater County following a jury trial, and after defendant's motion for new trial had been denied. The suit in question is a wrongful death action by the father of an eight and one-half year old boy who, while riding a bicycle, was struck by an automobile driven by defendant.

This tragic accident occurred during the afternoon of May 7, 1963, on a city street in Townsend, Montana. At the time the accident occurred, it was broad daylight on a clear, sunny spring day. The road surface where the accident occurred was gravel and the roadway was dry. Jean Rolandson (hereafter referred to as defendant) was driving a 1960 Oldsmobile four door equipped with power brakes and was carrying the following passengers: Defendant's daughter Nancy, age 5 1/2, was riding in the front seat next to the right front door; defendant's[150 Mont. 274] son Michael, age 1 1/2 was riding in the middle of the front seat between defendant and Nancy. Defendant was driving easterly on B Street and crossed the intersection at Spruce Street, which latter street runs at right angles to B Street. After crossing this intersection, defendant proceeded east on B Street in the east bound lane of travel. At a point about 45 feet east of the east boundary of the intersection in defendant's lane of travel, the front end of defendant's Oldsmobile struck the bicycle on which James Perry Graham (hereafter referred to as the deceased boy) was riding. This resulted in the deceased boy becoming wedged under the defendant's car between the oil pan and the road surface from which he suffered injuries resulting in his death the following day.

James W. Graham, the father of the deceased boy, and hereafter referred to as plaintiff, filed his complaint seeking damages for the wrongful death of his son. The complaint alleges negligence on the part of defendant on two theories: (1) standard negligence in various specified particulars; and (2) negligence based on the doctrine of 'last clear chance'.

Defendant's answer contains two defenses: (1) denial of any negligence on her part; and (2) contributory negligence on the part of the deceased boy.

Plaintiff thereafter filed his reply directed at the defense of contributory negligence and containing two contentions: (1) a general denial that the deceased was contributorily negligent; and (2) a contention that an eight year old boy is incapable of contributory negligence as a matter of law.

The action proceeded to jury trial on the basis of these pleadings and the issues framed therein. No eye witnesses to the accident testified at the trial other than the defendant who testified by deposition. The substance of her testimony insofar as it is pertinent to the issue of liability can be summarized in this manner: She was driving east on B Street and as she approached the Spruce Street intersection, she slowed down almost to a stop. She looked both ways, saw no cars or children [150 Mont. 275] in the street, and proceeded through the intersection. At some point before reaching the alley she saw a 'blur' on her windshield, applied her brakes, felt her car hit something but was not sure at first what it was, got out of her car when it came to a stop, and discovered that she had struck a boy on a bicycle who was presently wedged under her car. She

Page 266

thinks that the boy on the bicycle came diagonally across B Street traveling in a southeasterly direction. She could have turned left to avoid the boy on the bicycle. She does not know whether she pulled her car to the right upon seeing 'the blur' and applying her brakes, or whether she was traveling on the same line as where her car came to a stop following the accident. She was not traveling very fast at the time of the accident.

Beyond this deposition of the defendant, reconstruction of the facts of the accident at the trial was dependent upon physical facts observable at the accident scene, the testimony of witnesses concerning conditions existing in the accident area shortly before and shortly after the accident, statements allegedly made by defendant at the accident scene and thereafter, and expert opinion evidence as to the speed of defendant's automobile based upon tests and hypothetical assumptions.

It must be noted that there is no direct testimony or evidence as to how the deceased boy got from the steps of the porch on the Masonic Lodge where he was playing immediately prior to the accident to the point where he was struck on his bicycle by defendant's automobile. The Masonic Lodge is located more or less on the northeast corner of the intersection of B Street and Spruce Street, but sits back an undetermined distance from the curb line of both streets; the porch with the steps on which the boy was playing fronts on Spruce Street. There was no other traffic on B Street at the time and place of the accident, but there is a conflict in the testimony as to whether or not there was a pick-up parked parallel to the curb on the north side of B Street. The physical lay-out in the area of the accident would tend to indicate that there was no obstruction [150 Mont. 276] to visibility by the defendant or the deceased boy for a considerable distance before they arrived at the point of impact.

During the course of the trial, undisputed testimony disclosed that the deceased boy was born on October 19, 1954, making him exactly eight years, six months and eighteen days old at the time of the accident; that he was in the second grade at school; and that he lived with his parents in Townsend on Spruce Street across from the Masonic Temple in the general area of the accident in question.

At the conclusion of plaintiff's case in chief and again at the conclusion of all the evidence, defendant moved for a directed verdict which was denied. Upon settlement of jury instructions the issue of contributory negligence on the part of the deceased boy was removed from the jury's consideration. The court refused all of defendant's offered instructions on the issue of contributory negligence on the part of the deceased boy and gave the jury the following instruction:

'You are instructed that the court has determined as a matter of law that the child, James Perry Graham, was incapable of contributory negligence as a matter of law.'

Appropriate objections were made by defendant to the giving of this instruction and the removal of the issue of contributory negligence for the jury's consideration.

The jury returned a verdict in favor of plaintiff in the sum of $15,915.60 and judgment was entered thereon. After defendant's motion for new trial was denied, this appeal followed.

The issues presented for review by defendant upon this appeal can be broadly summarized in the following manner:

(1) The Court's instruction to the jury that the deceased boy was incapable of contributory negligence as a matter of law and the refusal of the Court to give defendant's offered instructions on contributory negligence;

(2) The admissibility of witness Lyons' testimony as to the speed of defendant's car in response to a hypothetical question;

[150 Mont. 277] (3) Failure of the trial court to instruct the jury on 'unavoidable accident';

(4) Refusal of the trial court to instruct the jury on the 'sudden emergency' doctrine; and

Page 267

(5) Refusal of the trial court to grant a directed verdict in favor of defendant.

In our view the first issue presented for review as set forth above involves two questions: (1) Was the trial court correct in instructing the jury that the deceased boy was incapable of contributory negligence as a matter of law and in refusing defendant's offered instruction on contributory negligence? and (2) if not, does the trial court's action constitute reversible error? We answer both questions in the negative based upon the authorities and reasoning hereafter set forth.

At the outset it is to be noted that this is a case of first impression in Montana on the question of the incapacity or incapability of a child seven years of age or older to be contributorily negligent as a matter of law. To date, Montana cases have not distinguished between the capacity or capability of such a child to commit contributory negligence and the related question of whether or not a particular child in a given situation was in fact contributorily negligent. However, it is clear that the law relating to contributory negligence of children involves a dual inquiry: (1) The capacity of a particular child in a given case to be contributorily negligent; and (2) The establishment in fact of the particular child's contributory negligence under the circumstances of a given case. Illustrative of cases recognizing these two facts of the inquiry are the following: Patterson v. Cushman (Alaska 1964), 394 P.2d 657, 6 A.L.R.3rd 421; Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448; Jackson v. Butler, 249 Mo. 342, 155 S.W. 1071.

Our first inquiry in the instant case is directed at the first of these two considerations. It has long been the law of Montana that a child under seven years of age cannot be contributorily negligent as a matter of law. (Burns v. Eminger, 81 [150 Mont. 278] Mont. 79, 261 P. 613; Johnson v. Herring, 89 Mont. 420, 300 P. 535; Gilligan v. City of Butte, 118 Mont. 350, 166 P.2d 797.) The Burns case, supra, decided in 1927, is the leading Montana case enunciating this...

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    ...the evidence which forms the basis of the opinion. Risken v. Northern Pac. Ry., (1960), 137 Mont. 57, 350 P.2d 831; Graham v. Rolandson, (1967), 150 Mont. 270, 435 P.2d 263. The chain of possession of the evidence was later supplied. Thus no error was Next defendant complains that a number ......
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