Marsh v. Ayers

• Decision Date: 02 November 1927
• Docket Number: 6197.
• Citation: Marsh v. Ayers, 80 Mont. 401, 260 P. 702 (Mont. 1927)
• Parties: MARSH v. AYERS.
• Court: Montana Supreme Court

260 P. 702

80 Mont. 401

MARSH v. AYERS.

No. 6197.

Supreme Court of Montana

November 2, 1927

Appeal from District Court, Silver Bow County; George Bourquin Judge.

Action by Harold Marsh, by his guardian ad litem, Anna Marsh against Stacey E. Ayers, doing business as the Midget Creamery Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Miles J. Cavanaugh and H. C. Hopkins, both of Butte, for appellant.

Joseph J. McCaffery, of Butte, for respondent.

MATTHEWS J.

Early in the present year Harold Marsh, of the age of 17 years, by guardian ad litem, commenced action against Stacey E. Ayers for damages for personal injuries sustained on January 6 1927, when a motorcycle on which he was riding collided with a motor truck driven by Ayers. Issue was joined and the cause tried in the district court of Silver Bow county; each side having introduced testimony and rested, the defendant moved the court to instruct the jury to return a verdict in his favor; the motion was denied, and the cause submitted to the jury. The trial resulted in verdict and judgment for plaintiff, and from this judgment defendant has appealed, specifying error only upon the denial of his motion for an instructed verdict. The pleadings are pertinent here only in so far as the allegations of negligence and contributory negligence are concerned, as the error specified is predicated upon the assertion that the plaintiff failed to prove that acts of negligence on the part of the defendant proximately caused the injury, and that the record discloses that plaintiff was guilty of contributory negligence, barring recovery.

The complaint alleges that plaintiff was proceeding on his motorcycle in a northerly direction on the right side of Montana street, in the city of Butte, "with due care and caution," and that the collision occurred by reason of the negligent acts and omissions of the defendant in failing to keep a proper lookout or to observe or ascertain whether vehicles were coming from the south when he turned from Montana street into Mercury street; that defendant was driving his truck down Montana street from the north at a greater rate of speed than 12 miles per hour, or at 25 miles per hour, contrary to the city ordinance described in the complaint; and that defendant negligently and carelessly made a left-hand turn from the west side of Montana street into Mercury street without going to the center of the intersection of the two streets, but instead "cut across" to the north of the intersection and entered Mercury street north of the intersection, contrary to the city ordinance of the city of Butte, therein described. Certified copies of the two ordinances described are attached to the complaint as exhibits.

The answer denies that the collision occurred by reason of any negligent act of the defendant, and alleges, among other defenses, that plaintiff was driving at an unlawful rate of speed and without keeping a proper lookout, and that the collision occurred by reason of his negligence.

The undisputed evidence establishes the following facts: At above 5 o'clock in the evening of January 6th, at which hour traffic was very heavy at the intersection of Montana and Mercury streets, plaintiff was ascending the heavy grade of Montana street from south to north, in second gear, on a lightweight motorcycle in first class condition and with good brakes. As he approached the intersection of the two streets he was traveling at about the line where the right wheels of automobiles traveled on the right side of the street and so continued into Mercury street, and, as he approached the intersection, he looked to right and left on Mercury and observed no vehicle which would interfere with his progress across Mercury street; he saw cars descending Montana street on the opposite side, but observed no car turning into Mercury from Montana.

At approximately the same time the defendant was driving down Montana street from the north in a 1923 Dodge truck, with a steel body on which was erected a screen framework and top, and on each of which appeared a white panel 3 feet wide and 4 feet long. As he approached Mercury street he looked to left and right on Mercury and down Montana and observed no vehicle which would interfere with his progress in turning onto Mercury street, and, continuing east thereon, he turned above the center of the intersection and proceeded across the east half of Montana street, within the intersection, but wholly within the north half of Mercury street.

The plaintiff did not see the truck until within 5 or 6 feet of it, when he attempted to swerve to the left, but failed to clear the truck, striking the running board and front fender. The defendant did not know of the proximity of the motorcycle until he felt the impact of the collision, whereupon he stopped his truck within a distance of 4 or 5 feet.

As to the speed of the two vehicles the evidence is conflicting; the plaintiff was very positive that he was not traveling over 12 miles an hour, and that, in second gear on an up grade, he could not have traveled faster than that. On cross-examination, he was asked if he had not told a certain boy of 16 shortly after the accident that he was going at 20 miles per hour and denied that he had done so. On rebuttal, the boy was called and testified that plaintiff had on two or three occasions made the statement to him. A bystander testified that the motorcycle was not running "very fast."

The defendant testified that he was not driving his truck to exceed 8 to 10 miles per hour approaching the turn and was not going over 8 miles per hour at the time of the collision. On the other hand, the plaintiff testified that when he saw the truck "it was coming pretty fast." Of three disinterested witnesses standing at the corner, the first called testified that the car "was coming at a pretty fair speed;" the second did not see the truck until after the collision; and the third stated first that the truck was going at "a pretty fair speed," and later estimated the speed at "about" or "around" 20 miles an hour, or "maybe more," although he admitted that he had little experience in driving cars and judging speed.

Again there was conflict in the testimony as to the manner in which the defendant turned into the intersection; he testified that he went near the center and made a square turn and did not "cut the corner." One of the witnesses mentioned above testified that he and his two companions were about to cross Mercury when he saw the truck "cut across" from 15 to 20 feet from above where they were, when he grabbed hold of his companions, drawing them back, with the warning to "look out, you will get run over"; in corroborating this witness, his companion, who saw the truck at the time, testified that he "saw it come across."

As to the exact place of the collision, the plaintiff and the three witnesses mentioned placed it at about 15 feet from the curb at the northeast corner of the two streets; the defendant placed it a few feet further from the curb, but still to the north of the center line of Mercury street.

1. Counsel for the defendant assert that the undisputed evidence shows that plaintiff could stop or turn his motorcycle in 6 feet while going at 12 miles an hour, and, unheedingly and without any precaution, drove headlong into the conspicuous truck with such force as to "catapult him into the truck," demolish the motorcycle, and bend and break the steel fender and running board of the truck. These statements are not borne out by the record.

As to the space within which plaintiff could turn the motorcycle he merely testified, "I couldn't tell you whether you could do it in 6 feet, but you can sometimes make a comparatively short turn when you are going slow;" as to the distance in which it could be stopped one Kinney, a police officer, in answer to the question, "Supposing that a light Indian motorcycle was being driven up...