McCulloch v. Horton

• Decision Date: 26 November 1937
• Docket Number: 7718.
• Parties: McCULLOCH v. HORTON.
• Court: Montana Supreme Court

74 P.2d 1

105 Mont. 531

McCULLOCH v. HORTON.

No. 7718.

Supreme Court of Montana

November 26, 1937

Appeal from District Court, Thirteenth District, Yellowstone County Wm. L. Ford, Judge.

Action by D. H. McCulloch against Charles Horton. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

H. M Gullickson and M. J. Lamb, both of Billings, for appellant.

H. L Myers, of Billings, for respondent.

ANGSTMAN Justice.

Plaintiff had a verdict and judgment for damages for personal injuries alleged to have been caused by defendant's negligence in the operation of a truck. At the conclusion of plaintiff's evidence, defendant rested without introducing any evidence in his behalf, and then moved the court to direct the jury to return a verdict in his favor. The court denied the motion, and submitted the cause to the jury. The jury returned a verdict for plaintiff in the sum of $3,575. The appeal is from the judgment entered on the verdict.

Defendant contends that his motion for directed verdict should have been granted because of plaintiff's contributory negligence. We shall review only so much of the evidence as is necessary to consider the questions presented on this appeal. For a more complete résumé of the facts, see opinion on the prior appeal of the same case. McCulloch v. Horton, 102 Mont. 135, 56 P.2d 1344, 1346.

The evidence shows that plaintiff was injured while he was holding open the west door of defendant's garage as the latter backed the truck out of the garage. It was in the evening, and it was dark. Plaintiff was injured by being struck with the wing of the truck as defendant backed it out of the garage. The wing of the truck had been in an upright position, but was not chained to hold it in place in case the truck was jarred. In backing the truck out of the garage, defendant did not back it straight, but in an angular fashion. Had he backed it straight, it would have been going directly south, but he turned it so that it went in a southeasterly direction, causing the front end of the truck to strike the door frame of the garage door on the west side of the garage, thereby jarring the truck to the extent that the west wing of the truck fell and struck plaintiff.

Plaintiff testified, in effect, that the garage doors opened on the south, and that there was a brace post and brace pole against which the door would hit when opened, and which kept the door that swung to the west from swinging completely around; that at the time he was sruck he stood next to this brace, or up against it, and that there was no other place he could stand in holding the door open. As he heard the truck crash into the door jamb, he let go of the door and attempted to get away, but could not because of the brace pole. He had observed the truck when it was being driven into the garage on the evening of the accident, but did not know whether the wings were fastened or not. He knew the wings would stay up without being fastened if the truck were not jarred.

Defendant contends that the physical facts refute the testimony of plaintiff to the effect that he was unable at the time of the accident to avoid the truck wing by reason of physical obstructions. His contention is that photographs introduced in evidence, as well as other testimony, demonstrate that if plaintiff had been standing where he said he was, the wing could not have struck him. Plaintiff, in testifying on cross-examination where he stood and why he did not get away before being struck, said: "Tried to get away just as quick as that crashed. What kept me from getting away was, I could not get away because this brace was this way. I tried to get away backwards and this brace interfered with me. I could not run to the west because of the brace. I did not run to the south because the truck was coming that way. If I had moved to the south and had time, I would probably have missed the truck wing, but I did not have time. The side of the truck was not rubbing against the side door, it was just a crash and I don't know just exactly what happened and I started moving. I started back, leaning away as far as the brace would let me. This brace would dig me pretty well in the legs. When leaning backwards I was leaning west and facing east. Had I turned to the right and jumped a few feet to the south I cannot say whether I would have been hit by this wing; I think I would have been. If I had not been struck with the wing, I would have been struck with the truck, anyhow. The truck was backing to the southeast, throwing the front corner right against me." He further said: "When I was holding the door in the position I am now demonstrating, I was standing possibly two and one-half to three feet west of the wheel path of the truck. While I was standing in that position the truck backed out in a southeasterly direction, it throwed the rear end in a southeasterly direction and the front end out this way [indicating]. This is what broke the studding. Whether, had I moved a few paces south from the position I am now demonstrating, the truck wing would not have hit me, depends on how fast I could move. I could not move as fast as the truck was moving. When I stepped back from having hold of that door, and that brace post came at about my crotch, I could have stepped over it, but I could not have pulled the door back any further. I suppose I would have been further away from the point of danger, but I could not get over that brace post."

Plaintiff further said: "I was in the clear if the truck had come out in the right position." On his direct examination he had testified: "In fact, I didn't have time to get away. I let go--I know I started to get away, and the wings of the truck, I know, just dragged past as it came out of the door, and hit me. The wing of this truck struck me over the right hip bone, just across the line of the hip bone, across that bone. It knocked me over that brace, broke the brace, and throwed me back a considerable distance into the weeds there that growed up alongside the garage. It was not possible for me to get out of the way in order to avoid this injury after the car started to back out of the garage." The record shows also that plaintiff demonstrated by the use of a backboard just where he was standing as he held the door open, and this demonstration is not before us. He further testified: "I would not be facing the garage. I would be facing almost east. This was the position I was standing in a few moments or seconds before I got that injury. A few moments afterwards I quit holding that door. That was not before the wing had dropped. You see, after I got the accident I was not standing there then. I could not be standing there after the accident. When the wings dropped I was standing back at this brace. I could not tell where my hands were at the time the wing dropped on me. It would be pretty hard for me to say whether I had hold of the door at all when the wing dropped--I think I did. When that wing dropped it would strike my left hip, it would have to. I am sure that it struck my left hip and not my right hip, and it struck the point of the hip."

The brace pole, referred to by the witness, is not shown in the photographs. We cannot agree with defendant's contention that the physical facts demonstrate that plaintiff testified falsely, or that he was guilty of contributory negligence. As before pointed out, the truck was moving rapidly, and plaintiff did not have time, after realizing his danger, to do much of anything to extricate himself from it before the wing had struck him.

Defendant contends that plaintiff himself made contradictory and conflicting statements and that, under such circumstances, his testimony should be viewed least favorably to him under the rule announced in Morton v. Mooney, 97 Mont. 1, 33 P.2d 262. But if we so view it, it still does not preclude his recovery, as a matter of law, because of contributory negligence. He was obliged to use reasonable care for his own safety; he was not obliged to anticipate negligence on the part of defendant. McCulloch v. Horton, supra. He did not know that the wing was not chained to hold it in place; but if he did, he was not bound to anticipate that defendant would drive the truck in the manner he did by striking the truck against the door jamb and thus causing the wing to fall. Had the truck been carefully driven, and had it been backed out of the garage straight instead of angularly, the wing would not have fallen, because the truck had evidently been driven into the garage without the wing falling.

That plaintiff might have chosen a position of greater safety does not bar recovery on account of contributory negligence. As was said on the prior appeal: "It is further argued that plaintiff could have occupied a position of greater safety, although the evidence is to the effect that, if the truck had been backed out so that it did not strike the side of the garage doorway, the wing would not have fallen and plaintiff would not have been injured. Mere knowledge of the existence of an offending instrumentality at the place where an injury is suffered does not raise a legal presumption of contributory negligence, unless it further appears that the plaintiff had reason to apprehend danger. [Citing cases.] The failure to anticipate negligence which results in injury is not negligence and will not defeat the action for the injury sustained."

Moreover even if the plaintiff had testified falsely in one particular, that would be no ground, standing alone, for denying recovery. It would simply warrant the jury in distrusting his testimony in other respects. Section 10672, subd. 3, Rev. Codes 1935. So, if he was not standing exactly where he said he was, or if he could have escaped being hit...