Marcoff v. Buck

• Decision Date: 18 December 1978
• Docket Number: No. 14229,14229
• Citation: 587 P.2d 1305,35 St.Rep. 1953,179 Mont. 295
• Parties: Robert Dean MARCOFF, Plaintiff and Respondent, v. Kathy Marie BUCK, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1305

587 P.2d 1305

179 Mont. 295

Robert Dean MARCOFF, Plaintiff and Respondent, v. Kathy Marie BUCK, Defendant and Appellant.

No. 14229.

Supreme Court of Montana.

Submitted Oct. 30, 1978.

Decided Dec. 18, 1978.

Berg, Angel, Andriolo & Morgan, Bozeman, for defendant and appellant.

Morrow, Sedivy & Olson, Bozeman, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal from a judgment entered in the District Court of the Eighteenth Judicial District, County of Gallatin. The court, sitting without a jury, found negligence on the part of defendant involved in an intersection collision.

Two issues are presented:

1. Was there substantial evidence to support the trial court's finding of negligence on the part of defendant?

2. Was there substantial evidence to support the trial court's finding of damages to plaintiff's vehicle?

The accident took place at the intersection of Grand Avenue and Olive Street in the City of Bozeman, Montana. Appellant-defendant was driving a 1965 Comet automobile and hit respondent's Dodge truck at the right front door. Respondent was proceeding north on Grand Avenue at about 20 miles per hour. He testified that as he approached the Olive Street crossing he looked to his right (the direction appellant came from), then to his left, and then looked ahead. It was not until he was into the intersection that he saw appellant to his right some 30 feet away. Respondent's truck was somewhere in the northeast quadrant of the intersection when struck. No skid marks were apparent from either vehicle. The speed of both vehicles was estimated at 15 to 20 miles per hour.

Appellant testified that as she drove into the intersection, she looked to her left, then to her right and then straight ahead. She was looking to her right as she entered the intersection and stated she did not see respondent's vehicle until it was right in front of her. She thought she then hit the brakes and turned to the right before the impact.

As to damages, respondent testified that when he purchased the pickup truck for $400 it did not run. He did a rebuilding and repainting of the vehicle and after putting the truck in first-class condition, he was offered $1,500 for it. Following the accident he had repair estimates of $1,700, but after having the frame straightened, he worked on the repairs himself and had expended between $330 and $400 for salvaged parts. The court found damages to the vehicle in the amount of $1,692.16 and also medical expenses of $72, hospital expenses of $16, lost wages in the amount of $115, and pain and suffering in the amount of $1,000.

Addressing the first issue, appellant argues that respondent was guilty of negligence under section 32-2170, R.C.M.1947, and that DeVerniero v. Eby (1972), 159 Mont. 146, 496 P.2d 290, mandates that appellant could not be guilty of negligence.

Before addressing this issue, we note that this Court has often held that " . . . the findings (of fact) of the trial court, in a nonjury trial will not be reversed on appeal, unless there is a clear preponderance of the evidence against the findings." Montana Farm Service Co. v. Marquart (1978), Mont., 578 P.2d 315, 35 St.Rep. 631. See also Sedlacek v. Ahrens (1974),165 Mont. 479, 530 P.2d 424. Likewise, we do not review determinations of weight and credibility of witnesses made by the trial court as a trier of the fact. Boatman v. Berg (1978), Mont., 577 P.2d 382, 35 St.Rep. 407.

Directing our attention to appellant's argument that section 32-2170(a), R.C.M.1947, forecloses respondent's recovery, we...