Hageman v. Townsend

• Decision Date: 15 January 1965
• Docket Number: No. 10734,10734
• Parties: Ivy HAGEMAN, Plaintiff and Respondent, v. Lawrence E. TOWNSEND, Defendant, and Marvin D. Holdiman and Belgrade De-Hy, Inc., a Montana Corporation, Defendants and Appellants.
• Court: Montana Supreme Court

Page 612

398 P.2d 612

144 Mont. 510

Ivy HAGEMAN, Plaintiff and Respondent, v. Lawrence E. TOWNSEND, Defendant and Marvin D. Holdiman and Belgrade De-Hy, Inc., a Montana Corporation, Defendants and Appellants.

No. 10734.

Supreme Court of Montana.

Jan. 15, 1965.

Poore, Poore & McKenzie, Butte, Allen R. McKenzie (argued), Butte, for appellants.

Morrow & Nash, Lyman H. Bennett, Jr., Bozeman, James H. Morrow, Jr., and Donald A. Nash (argued), Bozeman, for respondent.

JAMES T. HARRISON, Chief Justice.

Appeal from judgment entered in the district court of Gallatin County following return of a jury verdict for plaintiff.

The record discloses that plaintiff's son, Richard Lee Hageman, was killed on July 22, 1962, while riding as a passenger in a car owned and being operated by one of the defendants, Lawrence E. Townsend. Marvin D. Holdiman, another defendant, was operating an alfalfa truck in the course of his employment by the defendant, Belgrade De-Hy, Inc. The truck and its semitrailer had approached U. S. Highway 10 from the Allsop road a few miles west of Belgrade, Montana. Holdiman saw cars approaching in his intended lane but they were at least a mile away as he pulled out onto the highway. It was nighttime, but the weather was clear and the road dry with little or no grade.

It might be reasonable to assume that Townsend's car was one of the ones Holdiman saw coming a mile away as he drove the truck out onto the highway. Townsend passed a car, presumably the other one Holdiman saw, and then came up on the truck. The testimony of Townsend is that the truck suddenly loomed up ahead of him and that he could see that it was going too slow for him to stop before hitting it. Townsend quickly pulled out to pass the truck but a car approaching from the opposite direction forced him to drift back into the right lane. As the car passed Townsend tried to pass again but did not make it. The right front of the car struck the left rear of the truck. Plaintiff's son, who was riding in the front seat of the Townsend car, next to the driver, suffered fatal injuries. The collision occurred about 1,000 feet from where the truck turned onto the highway. At the time of the impact Holdiman was still shifting and had achieved a speed of between 15 to 25 miles per hour. The testimony indicates that Townsend was traveling at a speed of not less than 45 miles per hour nor greater than 60 miles per hour.

The plaintiff sued Townsend, the Belgrade De-Hy, Inc., owner of the truck, and the driver, Holdiman, for damages for allegedly negligently causing the death of her son. She contended that the truck was traveling so slow as to impede the normal flow of traffic in violation of section 32-2147, R.C.M.1947; that the truck did not have the rear clearance lights on; that Townsend was negligent in his operation of the car; and that the individual or combined negligence of the defendants constituted the proximate cause of her son's death.

The defendant Townsend argued that the negligence of the truck company was the proximate cause; that any negligence of Townsend was ordinary negligence and was assumed by deceased under the guest law; and that deceased was negligent in failing to warn Townsend of the danger.

The truck company contended that Townsend's negligence was the proximate cause, and that deceased was guilty of contributory negligence. All defendants argued that deceased had assumed the risk of the accident.

The case was tried to a jury and the verdict was against the truck company, but not against Townsend. The appeal has been taken by the defendant, Belgrade De-Hy, Inc. Several specifications of error are assigned, and we will consider those relating to the slow speed statute and to the lights as determinative of this appeal.

In the specifications of error it is asserted that it was error for the judge to give the slow speed statute as an Instruction without giving the defendant's proposed Instruction 2, which would have qualified that statute.

As to our discussion of the slow speed statute hereafter we wish to make it clear that its application was agreed to by all parties and the only question posed is with respect to the court's instructions.

The slow speed statute, section 32-2147, R.C.M.1947, provides, in relevant part:

'(a) No person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.

'Police officers or highway patrolmen are hereby authorized to enforce this provision by directions to drivers, and in the event of apparent willful disobedience to this provision and refusal to comply with direction of an officer in accordance herewith the continued slow operation by a driver shall be a misdemeanor, except that inability to comply with such order will not be construed as willful disobedience.'

Subsection (b) pertains to authority to designate a specific minimum speed and so mark the highway, but this is not in issue here. The trial judge gave an Instruction containing the substance of the first paragraph of the statute, adding that failure to comply with that rule constituted negligence as a matter of law.

Defendant's proposed Instruction 2 reads as follows:

'You are instructed that there was no minimum speed limit in miles per hour in effect at the time and place of the accident. In considering the question of the speed of the vehicle owned by the defendant, Belgrade De-Hy, Inc., and driven by the defendant, Marvin D. Holdiman, you must consider whether it had been on Highway 10 a sufficient time and distance that he could, under normal operation of the vehicle, acquire such speed as not to impede traffic. Therefore plaintiff must prove by the greater weight of the evidence not only that the vehicle was being driven at such a slow speed as to impede or block the normal and reasonable movement of traffic, but also that the vehicle had been on the main highway sufficient time and distance to allow the driver, under normal operation of the vehicle, to acquire such speed as not to impede traffic, or she has failed to meet the required burden of proof as to this contention.'

Thus, in this appeal we are brought to a consideration of section 32-2147, supra, and whether this section should be qualified to provide that a vehicle must be shown to have been on the road long enough to achieve normal speed before liability may be imposed.

The general rule in states having slow speed statutes like Montana's is that the statute may be used as a basis for liability. The purpose for the statute is rooted in recognition that the slow driver may be the cause of fatal highway accidents as well as the fast driver. Netterville v. Crawford, 233 Miss. 562, 103 So.2d 1; Lafferty v. Wattle (Mo.App.1961), 349 S.W.2d 519; Griffin v. Illinois Bell Telephone Company, 34 Ill.App.2d 87, 180 N.E.2d 228; Seaton v. Spence, 215 Cal.App.2d 761, 30 Cal.Rptr. 510; Anno. 66 A.L.R.2d 1194.

In the Netterville, Lafferty, and Griffin cases, supra, the two colliding vehicles had been traveling at highway speeds and the collisions occurred due to the slowing of the forward vehicle. In the instant case the truck was not traveling at highway speed but had just turned out onto the highway and was accelerating when the accident occurred. These special facts form the basis of the appellant's contention that the slow speed statute does not apply in this case unless it is shown that the truck had been out on the highway long enough to achieve the normal speed of the flow of traffic. There is authority that it is not intended for the statute to apply unless it is first shown that the vehicle was able to be going at the speed of the 'normal' stream of traffic. 7 Am.Jur.2d, Automobiles and Highway Traffic, § 190, 740; Fisher, Vehicle Traffic Law, Traffic Institute Northwestern University, 1961, p. 236.

We have been able to find but three c...