Haney v. Mutual Creamery Co.
| Citation | 215 P. 656,67 Mont. 278 |
| Parties | HANEY v. MUTUAL CREAMERY CO. |
| Decision Date | 14 May 1923 |
| Court | Montana Supreme Court |
Commissioners' opinion.
Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.
Action by Thomas Haney, by his guardian ad litem, Margaret Buckley against the Mutual Creamery Company. Judgment for plaintiff and defendant appeals. Affirmed.
Walker & Walker and C. S. Wagner, all of Butte, for appellant.
William Meyer, of Butte, for respondent.
The plaintiff in this action, brought by Mrs. Margaret Buckley his guardian ad litem, recovered judgment in the court below against the defendant for personal injuries sustained in a collision between the plaintiff's motorcycle and the defendant's auto truck, driven by an employee. The plaintiff offered evidence in support of the allegations of the complaint. Both parties then rested. The defendant then moved the court to instruct the jury to return a verdict in favor of the defendant and against the plaintiff. This motion was denied. The cause was thereafter submitted to the jury and verdict rendered against the defendant in the sum of $750. Upon this verdict, judgment was duly entered. The defendant then moved for a new trial, which motion was overruled. The appeal is from the judgment.
The defendant seeks to obtain a reversal of the judgment upon two grounds: First, that the testimony offered by the plaintiff shows that the injury and damage sustained by him were due to his own contributing fault and negligence; second, that there is a fatal variance between the complaint and proof. We will consider these in order.
The injury complained of occurred on Montana street in the city of Butte on September 19, 1920. This street runs north and south. At the point in question it is about 72 feet in width and has a street car track running in the same direction along its center. Immediately prior to his injury the plaintiff, being then a little past 16 years of age, was riding a motorcycle, proceeding north, on the right-hand side of the street named. His motorcycle was equipped with a tandem seat which was occupied at the time by two companions. As they were about a half block south of the Mutual Creamery Company's plant they observed the truck coming out onto Montana street from the south side of the creamery. It crossed over to the right-hand side of the street and turned north ahead of the motorcycle, being then about 30 feet in advance. The truck was then traveling about 8 miles an hour, and the motorcycle about 12 or 14. The former proceeded parallel to and about 5 or 6 feet to the right of the street car track. The plaintiff directed the course of his motorcycle in such a manner that he would pass to the left of the truck, between it and the street car track. When about 18 feet in rear of the truck he sounded three blasts on the Klaxon push-down horn, with which his motorcycle was equipped. The third blast was sounded as the front of the motorcycle was about even with the rear of the truck, which just at that instant, without any warning by extending the arm or otherwise, suddenly turned to the left directly in the path of the plaintiff. The latter applied his brake, but was unable to avoid a collision. The handlebars of the motorcycle came in contact with the left rear fender of the truck. The plaintiff was thereby thrown across the street car track and received the injuries forming the basis of his action.
The plaintiff seeks to establish liability by showing compliance with the statutory traffic regulations on his own part and a failure to observe the same on the part of the defendant. These are contained in subdivisions 1 and 2 of section 1743 of the Revised Codes of 1921. We will quote only the portions of each that apply to this case. The first prescribes the duty which was on the plaintiff at the time, and is as follows ...
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