Green v. Hagele

Decision Date05 July 1979
Docket NumberNo. 14117,14117
Citation182 Mont. 155,595 P.2d 1159
PartiesJohn GREEN, Plaintiff and Appellant, v. Frank E. HAGELE, Defendant and Respondent.
CourtMontana Supreme Court

Murphy, Robinson, Heckathorn & Phillips, I. James Heckathorn (argued), Kalispell, for plaintiff and appellant.

Garlington, Lohn & Robinson, Gary L. Graham (argued), Missoula, for defendant and respondent.

DALY, Justice.

Plaintiff John Green appeals from the judgment and denial of a new trial of the District Court, Eleventh Judicial District, Flathead County, rendered in favor of defendant Frank Hagele in a personal injury action resulting from a hunting accident.

On October 21, 1973, Green, Hagele and his wife Beatrice, were hunting together on Hagele's property at Lake Blaine near Kalispell, Montana. The hunting party went out shortly after 4:30 p. m. Hagele gave the individual members instructions on where to hunt and where to meet. Essentially, each person was to work into the woods about 150 to 300 yards from the others. They were to reach general areas, wait, and then Hagele would come to them.

According to defendant, when the time came to end the hunt and get everyone together, he started to walk slowly to where Green was supposed to be. As he was walking, he heard a branch break and looking to the source of the sound, he saw what appeared to be a white-tailed deer climbing a bank. He saw a dark patch like the color of a deer and what he identified as the deer's tail wagging back and forth. Looking at it through the scope on his rifle at a distance of approximately 150 feet, defendant maintains that it looked like a deer trying to sneak away. He took aim and fired. He ran to his target and discovered Green, who was shot through the left leg just above the knee.

Green's actions and apparel at the time of the shooting are in dispute. Green had seen Hagele coming and had whistled twice according to the prearranged plans. Although Hagele looked in his direction and started to walk toward him, Green concedes he received no answering whistle. At the time he was shot, Green states he was starting to walk toward Hagele.

As to his apparel, Green had on an orange stocking cap and a vest made of the required amount (at least 400 square inches) of hunter's orange. The parties disagree as to whether this vest was open or closed and as to whether it was or should have been visible to Hagele. Green was also wearing brown pants and had a black and white raven's feather attached to his rifle. It was this feather which Hagele claims he apparently mistook for the wagging of a deer's tail.

At trial both parties presented expert witnesses to testify as to whether Green's actions and apparel constituted contributory negligence barring his claim.

Although plaintiff phrases them differently, the issues presented to the Court on appeal are:

1. Whether there was sufficient evidence to support a jury conclusion that Green was contributorily negligent.

2. Whether the trial court was correct in sustaining the two objections to the cross-examination of one of the expert witnesses.

Plaintiff summarizes his contentions on this appeal as follows "Defendant intentionally shot Plaintiff, believing he was a deer, inflicting severe and disabling injuries. Defendant's negligence is irrefutable. The jury, by 8 to 4 decision, returned a verdict for the Defendant. The case turned on contributory negligence of the Plaintiff. The Court erred in permitting opinion evidence that (1) wearing brownish trousers and (2) carrying a feather constituted negligence. The Court further erred in limiting the cross-examination of the purveyors of such opinion."

In support of his argument plaintiff Green begins by stating that it is axiomatic that the conduct of a hunter who shoots at a target without taking the time and care necessary to ascertain that the target is in fact legal game, and not a human being, constitutes negligence as a matter of law. We agree.

Plaintiff then examines the allegations of contributory negligence that, although he had on an orange cap and a hunter orange vest, he wore brown trousers and carried a raven feather. Green asserts that the only requirement as to clothing was that hunters wear hunter orange. He notes further that, under the statute in effect at the time of the shooting, failure to wear hunter orange could not be treated as evidence of contributory negligence. Green argues that if it is not contributory negligence to fail to wear hunter orange, it could not be negligence to wear ordinary clothes in conjunction with hunter orange.

Green asserts his acts were typical, that he did not violate any law or breach a duty, and that his conduct was not such as would cause a reasonably prudent person to foresee harm.

The standard of conduct imposed for contributory negligence is the same as for primary negligence. The elements of contributory negligence are (1) a duty, (2) a violation thereof, and (3) injury as a proximate result thereof. It is not negligence to fail to anticipate injury which can come about only as a result of the negligence of another. There can be no negligence in the absence of a duty. The test is not what could have been done, but what was reasonably foreseeable. Plaintiff did nothing except be present at the scene. His only offense was being there and nothing he did was a proximate cause of his injury. There was no evidence of any negligence on the part of plaintiff.

As to the limitation of cross-examination, Green argues that he should have been allowed to delve into the matters of qualifications and bases for opinions of Hagele's expert witnesses. Inquiry on cross-examination should be allowed as wide a range as may be reasonably necessary to test the skill and reliability of the witness. The cross-examination should be allowed to ask questions which would be wholly irrelevant except for the purpose of ascertaining the value of the witness's opinion or the degree of credibility to be attached to his testimony.

Defendant Hagele contends that Green did not object to any question asked of Hagele's experts or to their qualifications. Hagele notes the use of expert witnesses was not limited to the defense. Plaintiff called a game warden who testified that in his opinion Hagele did not act as a normal prudent hunter and further that Green was not at fault in any way for the accident.

Defendant next contends that the rule is that where there is substantial evidence to support the verdict, the District Court's refusal to grant a new trial will not be disturbed. Where the evidence is conflicting, the judgment will not be disturbed on appeal when substantial evidence appears in the record to support the judgment. Hagele maintains that the evidence to support the verdict is substantial.


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8 cases
  • Thornock v. State
    • United States
    • Montana Supreme Court
    • 4 Noviembre 1987
    ...Ambrogini v. Todd (1982), 197 Mont. 111, 118, 642 P.2d 1013, 1017, citing Prosser on the Law of Torts Sec. 30; Green v. Hagele (1979), 182 Mont. 155, 158, 595 P.2d 1159, 1161. No duty on the part of the State lies here because of the federal government's usurpation of the Montana Safety Act......
  • Love v. United States Dept. of Agriculture, CV-85-146-GF.
    • United States
    • U.S. District Court — District of Montana
    • 17 Noviembre 1986
    ...See, Krone v. McCann, 196 Mont. 260, 638 P.2d 397 (1982); Roy v. Neibauer, ___ Mont. ___, 623 P.2d 555 (1981); Green v. Hagele, 182 Mont. 155, 595 P.2d 1159 (1979). Accordingly, the Loves' complaint fails to establish the requisite duty upon which an action for negligence can be For the rea......
  • Okland v. Wolf
    • United States
    • Montana Supreme Court
    • 15 Abril 1993
    ...not negligence to fail to anticipate injury which can come about only as a result of the negligence of another." Green v. Hagele (1979), 182 Mont. 155, 158, 595 P.2d 1159, 1161. Here, the jury was so instructed but obviously did not follow that As to Issue 2, my careful reading of the trans......
  • Pierce v. ALSC Architects, P.S.
    • United States
    • Montana Supreme Court
    • 23 Marzo 1995
    ...dismissing ALSC's affirmative defense of contributory negligence. Pierce contends that based on our decision in Green v. Hagele (1979), 182 Mont. 155, 595 P.2d 1159, he had a right to assume that others would act with reasonable care and was not negligent for failing to anticipate an injury......
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