Kirby v. Kelly, 12235

• Decision Date: 09 January 1973
• Docket Number: No. 12235,12235
• Citation: 504 P.2d 683,161 Mont. 66
• Parties: Mona KIRBY, by Guardian ad litem, Gwan Kirby and Gwan Kirby, Plaintiffs and Appellants, v. Melinda P. KELLY and Leonard M. Kelly, Defendants and Respondents.
• Court: Montana Supreme Court

Page 683

504 P.2d 683

161 Mont. 66

Mona KIRBY, by Guardian ad litem, Gwan Kirby and Gwan Kirby Plaintiffs and Appellants, v. Melinda P. KELLY and Leonard M. Kelly, Defendants and Respondents.

No. 12235.

Supreme Court of Montana.

Submitted Oct. 19, 1972.

Decided Dec. 19, 1972.

Rehearing Denied Jan. 9, 1973.

Arthur P. Acher appeared, and Robert F. Swanberg argued, Helena, for plaintiffs and appellants.

Robert L. Johnson argued, Lewistown, for defendant and respondent.

DALY, Justice.

This is a personal injury and property damage action by plaintiffs, tried to a jury in the district court of the first judicial district, county of Lewis and Clark. After a verdict for defendants and denial of a motion for a new trial, plaintiffs appeal from the final judgment.

On the morning of October 15, 1969, on Interstate Highway #15, an accident occurred about seven miles north of Helena. All parties involved in the accident were traveling south toward Helena from the Lincoln road to attend work or school. A dense fog enshrouded the area and the highway surface was icy.

The facts on some controlling issues are in dispute, but we will related them most favorably to the prevailing party.

Plaintiff Mona Kirby and her mother Gertrude Kirby were traveling south on Interstate #15, which is a four lane highway divided by a median with two driving lanes and a broad shoulder parking area, both north and south. They were passed by defendant Leonard M. Kelly, driving a GMC pickup truck. As the Kirby car continued in the fog, it approached Leonard Kelly's pickup which had stopped off to the side of the road to clean the ice and frost from the windshield. Plaintiffs contend Leonard Kelly's pickup was not off the driving lane. Gretrude Kirby stopped her automobile in the right hand or outside lane of traffic.

After cleaning his windshield, Leonard Kelly continued toward Helena. Gertrude Kirby waited for a short period of time after Leonard Kelly had departed and as she was about to move her car, it was struck in the rear by a car driven by codefendant, Melinda Kelly. Both vehicles came to a stop on the highway. The damage seemed minor.

While the drivers were surveying the damage to their respective automobiles, and were out of the automobiles, another automobile driven to Russell Harvey came from behind and struck Melinda Kelly's vehicle. Harvey drove heavily into the rear of Melinda Kelly's automobile, rupturing the gasoline tank. This caused a fire which injured Mrs. Knapp, who was riding with Melinda Kelly, and Cheryl Kelly, daughter of the Kellys, was engulfed in flaming gasoline.

Plaintiff Mona Kirby was also injured in this series of accidents. She was treated at various times by a medical doctor after the accident. Plaintiff Gwan Kirby father of Mona, claimed damages for injuries to his daughter, and for damages to his automobile. The jury found for defendants on both counts.

Plaintiffs present several issues for review which will be discussed in order of their presentation in the brief.

Plaintiffs contend there was not substantial evidence to support the verdict for defendants and the trial court erred in its failure to grant a new trial. In reviewing this issue, this Court will follow the long established rule, which was again reaffirmed in Davis v. Davis, Mont., 497 P.2d 315, 318:

"When such a question is before this court we will only review the evidence to decide if the verdict is supported by substantial evidence. Breen v. Industrial Accident Board (Mont.1968) (150 Mont. 463), 436 P.2d 701. The fact that there were conflicts in the testimony does not mean there is not substantial evidence to support the verdict. We must accept the evidence blieved by the jury 'unless that evidence is so inherently impossible or improbable as not to be entitled to belief * * *.' Wallace v. Wallace, 85 Mont. 492, 279 P. 374, 377, 66 A.L.R. 587 (1929.)"

Even though there is a conflict in the evidence, there is evidence, depending on which witness the jury believed, that defendant Leonard Kelly drove his pickup with due care and was not on or blocking the highway when Gertrude Kirby chose to stop on the driving lane, in which case Gertrude Kirby could not look to defendant Leonard Kelly to respond for her misfortune. There is further evidence that Gertrude Kirby remained stopped on the highway some minutes after Leonard Kelly departed. There is also evidence that there was no problem seeing the traffic lane markers on the highway surface.

Plaintiffs further contend that Leonard Kelly was negligent per se for not having defrosters under section 32-21-148, R.C.M.1947, which requires:

'(a) No person shall drive any motor vehicle with any sign, poster, or other nontransparent material upon the front windshield, side wings, or other side or rear windows of such vehicle which obstructs the driver's clear view of the highway or any intersecting highway.

'(b) The windshield on every motor vehicle shall be equipped with a devide for clearing rain, snow, or other moisture from the windshield, which device shall be so constructed as to be controlled or operated...