McGregor v. Weinstein
| Decision Date | 24 April 1924 |
| Docket Number | 5437. |
| Citation | 225 P. 615,70 Mont. 340 |
| Parties | MCGREGOR v. WEINSTEIN ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.
Action by Bertha L. McGregor against Herman Weinstein and another. Judgment for plaintiff, and defendant Mrs. Joseph Weinstein appeals. Reversed and remanded for new trial.
Earle N. Genzberger, of Butte, for appellant.
J. F Emigh, J. J. Bourquin, and M. F. Canning, all of Butte, for respondent.
The plaintiff brought this action to recover for injuries alleged to have been inflicted upon her through being struck by an automobile driven by the appellant. The allegations of the complaint are substantially these: At 6:30 on the evening of May 20, 1922, the plaintiff was passing over the West Silver street crosswalk from north to the south on the west side of Alabama street in the city of Butte on the way to her home at 916 West Gold street; that when she was near the curb on the south side of Silver street she was struck by appellant's automobile in the back, hips, and abdomen, thrown upon the sidewalk and so bruised and injured as to cause traumatic neurasthenia; that the injuries were caused through the negligence of the appellant in failing to notice the plaintiff upon the crossing and in carelessly driving the machine against her while passing over the crossing mentioned. The answer denies that the appealing defendant was negligent or that she struck the plaintiff through carelessness in handling the car, and alleged that the accident would not have occurred had the plaintiff not been guilty of contributory negligence in failing to exercise due care for her own safety. The jury returned a verdict in favor of the plaintiff in the sum of $6,000. The district court denied defendant's motion for a new trial. She has appealed from the judgment.
The only eyewitnesses to the accident were the plaintiff and defendant Mrs. Weinstein. At the northwest corner of the intersection of Alabama and West Silver streets is a tract of ground known as the "playgrounds" or "cinders" extending one block eastward and a block and a half northward. There are no buildings in the vicinity other than the Warner Apartments, located one block east. On the west side of Alabama street, extending northward, is a cement sidewalk about six feet wide. From the northeast corner of the street intersection there is a gully or gulch and a telephone pole at a point about six feet south and east of the outer curb at the northwest corner, and surrounding this is rough ground. A crosswalk extends from the east side of Alabama street along the north line of Silver street. Another crossing is located upon the west side of Alabama street crossing Silver street from north to south. The accident occurred on the west crosswalk somewhere between the curb and the center of Silver street, either three feet from the south sidewalk, as the plaintiff testified, or at the crossing in the center of the street, according to defendant's testimony. The plaintiff testified that she looked, but did not see an automobile approaching, and that she did not know from what direction the machine which struck her came, and that it threw her on the sidewalk on the south side of West Silver street. The defendant testified that she tooted her horn as she turned at the intersection of the two streets and was traveling westward so slowly that she killed her engine and stopped the car when she saw the plaintiff; that she asked the plaintiff why she did not get out of the way; that the plaintiff made no answer; and that she did not see the car strike the plaintiff.
The defendant relies upon 11 specifications of error. She charges that the plaintiff was guilty of contributory negligence that the court erred in denying her motion for a directed verdict, and in refusing to instruct the jury as requested by her; that erroneous instructions were given upon the law of the case; that plaintiff failed to establish negligence; and that the verdict is the product of passion and prejudice.
Upon the authority of subdivision 3 of section 1743 of the Revised Codes of 1921, this court announced the rule that a pedestrian and an automobile have equal rights in the use of a public highway and neither may with propriety infringe upon or disregard the rights of the other. Green v. Bohm, 65 Mont. 399, 211 P. 320. There the defendant, operating a car at a dangerous rate of speed on a public highway not within the limits of a city, ran into and injured the plaintiff. A driver is required to operate his automobile in a careful and prudent manner "under the conditions existing at the point of operation," taking...
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