Mcdonough v. Smith

• Decision Date: 20 February 1930
• Docket Number: No. 6551.,6551.
• Citation: 86 Mont. 545
• Parties: McDONOUGH v. SMITH.
• Court: Montana Supreme Court

86 Mont. 545

McDONOUGH

v.SMITH.

No. 6551.

Supreme Court of Montana.

Feb. 5, 1930.

Rehearing Denied Feb. 20, 1930.

Appeal from District Court, Yellowstone County; O. F. Goddard, Judge.

Action by F. J. McDonough against Sam Smith. From a judgment for plaintiff, defendant appeals. Judgment modified, and, as modified, affirmed.

Guy C. Derry and Paul B. Bowen, both of Billings, for appellant.

H. C. Crippen, of Billings, for respondent.

ANGSTMAN, J.

Plaintiff was awarded a verdict for $754.90, damages to his automobile alleged to have been caused by defendant's negligence. From the judgment entered on the verdict, defendant appealed.

The complaint sets forth that on July 15, 1928, plaintiff was driving his automobile northward on a public highway between Fromberg and Rockvale, and that defendant was also driving an automobile on the same road and in the same direction; that defendant negligently and carelessly drove his car against that of plaintiff in attempting to pass the plaintiff, and thereby caused the plaintiff's car to leave the road and run into a fence, resulting in the damage complained of. It is alleged that, just as defendant attempted to pass plaintiff's automobile, another automobile was approaching from the north, and was about to pass plaintiff's car, and that there was not sufficient space between plaintiff's car and that approaching from the north to enable the defendant, in the exercise of ordinary care, to pass between, and that defendant ought to have slackened the speed of his car and not attempted to pass until the car coming from the north had passed.

Defendant by his answer alleges that plaintiff's automobile struck the fence without the fault of defendant and because of the careless and negligent driving of the plaintiff, and that the damage to plaintiff's car was caused, in whole or in part, by the carelessness and negligence of plaintiff. The answer further sets forth that plaintiff's car slackened its speed as defendant's car was approaching from behind, and that defendant found it necessary to either attempt to pass plaintiff's car or to strike it in the rear.

By reply, plaintiff denied the affirmative allegations of the answer.

Briefly summarized, the evidence introduced by plaintiff shows that he was driving his coupé automobile on the highway at the time and under the circumstances alleged in the complaint, and that Albert Dewing and Margaret Treichler were riding with him. For a quarter of a mile before reaching the point where defendant attempted to pass them, the roadbed consisted of loose gravel, and in about the central portion of the highway were two ruts in which the wheels of the cars traveled. Before coming to this graveled strip of road, they had passed defendant's car. When plaintiff reached the graveled stretch of road, defendant sounded the horn of his automobile, and thus indicated his desire to pass plaintiff. Plaintiff, being unable to turn out by reason of the loose gravel, accelerated the speed of his car, and, as soon as he had passed the gravel, he turned to the right to enable defendant to pass. Plaintiff drove his car parallel with and within about a foot and a half of a fence extending along the right side of the highway, and was going about 40 miles per hour. Defendant, instead of turning his car behind plaintiff's car in order to let the car coming from the north pass, drove past plaintiff, and turned suddenly in front of plaintiff's car, and struck the left front fender of plaintiff's car with his right rear fender, forcing plaintiff's car into the fence and causing the damage complained of. When plaintiff's car hit the fence, it knocked down seven posts situated 10 feet apart, and when it came to a stop it was facing south and stood in the middle of the road. Defendant continued on without stopping. Plaintiff at all times had his hands on the wheel, and had the car under such control that he could guide it if nobody hit it.

The foregoing facts were testified to by plaintiff, and substantially the same evidence was given by the other two persons riding in his car at the time, and there was corroboration of the material facts by David A. Brown, who was driving the car approaching from the north, and by Henry Lohoff, who was also driving another car approaching from the north, and which was about 60 yards from the point of the collision when it occurred.

H. H. Emmett testified that, in a conversation had between plaintiff and defendant in the presence of the witness, the day after the accident, defendant said:“I made up my mind to pass you if I had to wreck my car to do it.” There was also evidence showing the extent of the damages to the car as alleged in the complaint.

Defendant, testifying in his own behalf regarding what happened as he attempted to pass plaintiff's car, said: “It seemed to me like he [plaintiff] was going to stop entirely and swing to his right, right towards those posts and a car was coming across the bridge, that is crossing Rock Creek, by the time he swung this way, and I swung to get by him, why, this other came to my left pretty near even up with us; * * * not to my knowledge did my car touch his car. My attention was on the other car to come right curve around to dodge the other car, the way he was coming close, all three of us together. Under the conditions that I observed there, I don't think my car could have struck his car with sufficient force to have knocked it off the road.”

George O. Griffen, who was in defendant's car at the time in question, testified: “As he [plaintiff] got to the brow of the hill, he seemed to slow down. Well we could not tell whether he was stepping on the brake or took his foot off the gas, but there was just a short distance between the two cars, and he pulls over to his side of the road. Well we started around and-well, from what I could see, it looked like he had lost control of his car and had skidded-well, whether it skidded or not, why as we went by his front end was just a little-why I should say skitter cornered of the road; pointed just a little to the middle of the road, and there must have been where we took his fender, if we did. I did not notice any shock to our car. * * * I did not notice and did not know at that time that we had touched his fender. * * * We had to increase our speed at the time Mr. Smith went around the McDonough car. That was because it was either run into him...