McKeon v. Kilduff

• Court: Montana Supreme Court
• Writing for the Court: GALEN, J.
• Citation: McKeon v. Kilduff, 85 Mont. 562, 281 P. 345 (Mont. 1929)
• Decision Date: 16 October 1929
• Docket Number: 6494.
• Parties: McKEON v. KILDUFF.

281 P. 345

85 Mont. 562

McKEON v. KILDUFF.

No. 6494.

Supreme Court of Montana

October 16, 1929

Appeal from District Court, Cascade County; W. H. Meigs, Judge.

Action by John McKeon against Campbell Kilduff. From a judgment of dismissal on the merits, entered on motion of dismissal plaintiff appeals. Reversed and remanded.

W. F O'Leary and W. P. Costello, both of Great Falls, for appellant.

Slattery & Tighe, of Great Falls, for respondent.

GALEN J.

This is an action to recover damages for personal injuries sustained by the plaintiff by reason of the defendant's negligence in operating an automobile on Third street in the city of Great Falls. The defendant by answer denied the allegations of negligence contained in the plaintiff's complaint, and in further defense pleaded the plaintiff's contributory negligence. The cause was regularly brought on for trial before a jury, and at the close of the plaintiff's case the defendant moved for a nonsuit which was granted. Judgment was thereupon entered upon the merits, dismissing the plaintiff's complaint, from which this appeal is prosecuted.

The plaintiff's specifications of error present two questions for determination, viz.: (1) Did the court err in granting the defendant's motion for a nonsuit? and (2) Was it proper to enter a judgment on the merits? These questions will be considered and disposed of in their order.

1. The grounds upon which the defendant predicated his motion for a nonsuit were (1) failure of proof; and (2) that the evidence established the plaintiff's contributory negligence as a matter of law. It appears that the plaintiff, a single man is a telegraph operator employed by the Great Northern Railroad in the city of Great Falls, and at the time of the accident was 49 years of age. On the night of November 26, 1927, he went off duty at about 10 minutes to 12. He was returning to his place of abode after his day's labors, and walked on the south side of Central avenue to the intersection of Third street, at what is called "Lapeyre's corner," intending to board a street car. He carried his lunch bucket and a small package of cereal, and wore a medium weight overcoat, the collar of which was not turned up, and there was nothing to obstruct his sight or hearing. At "Lapeyre's corner" he saw a street car approach and stop, and was attempting to cross Third street at about the hour of 12:10 a. m., when he was struck down in the street by an automobile driven by the defendant. He testified:

"I didn't get on, because it wasn't my car; it was an A. C. M. car, that stopped at Lapeyre's loading up. My car should have been right behind it, but it wasn't coming, and I didn't wait. I didn't wait at all, because my car was not in sight. I figured on walking another block, and to let the car overtake me. Before the time of this accident I wore glasses all the time while I was in the electric light, but not on the street. My vision was all right on the street, and there was nothing wrong with my hearing. I left Lapeyre's corner and started across toward the First National Bank. I looked to my left; I was watching to my left until I got to about the center. The street was well lighted, and I could see north and south along Third street for at least 200 or 300 feet very clearly, and where I was walking was also well lighted, so that I would be visible to persons that distance from me, or should have been. When I got to the center of the street, I looked to my right; it was then and there that I saw Mr. Kilduff approaching in his automobile. I was about 16 or 17 feet from the bank when I first saw him; that would be about the center of the street, it was probably about the center of the street on Third street that I was when I first saw Mr. Kilduff. When I first saw him, he was about 50 feet from me, and I continued to look at him. I thought I had plenty of time to make it. I hastened my paces.

Q. Now, you estimated right then and there that you had plenty of time to get across that street, didn't you? A. Absolutely.

If the street at this particular point is 50 feet from curb to curb, I probably had to travel about 25 feet before reaching the curb. There were no parked cars to obstruct my view of Mr. Kilduff approaching in his car. * * * I had to watch this oncoming automobile in order to be able to judge the speed at which it was approaching. I watched it from about the neighborhood of the center of the street all the way across until, well, it would be about while I was taking four or five steps, possibly a couple of seconds. I was watching the car for a couple of seconds, and, the first time I saw it, it was only 50 feet from me, just about. In that couple of seconds I saw that it was approaching at the rate of 30 miles per hour. You may understand me to say that I decided that I could reach the curb before the car reached where I was to cross. I hastened my paces. I don't hardly think I had my face turned toward the car at the time I was struck, because I was hastening my paces to get across. I was walking just about 4 miles per hour, but I was walking faster when I hastened my paces. I was then walking probably 5 or 6 miles per hour, just about. I can't say how close the automobile was to me when I took my eyes off of it; it was close, because its headlights were large, his lights were well lighted; he wasn't more than a couple of feet from me at the time I took my eyes off of him. The sounding of a horn, whistle, or gong might have made me more aware of his presence, in that he could have given me a warning further back. His horn would probably have been too late, when he was about 2 feet from me, even if he had blown the horn; it would not have made me any more aware of his approach. I saw him anyway, but it might have helped me to judge his speed."

The automobile driven by the defendant at the time of the accident was operated at a rate of speed considerably in excess of that permitted by the city ordinances at the place of the accident. After being struck by the oncoming automobile before it was stopped, he was by it pushed along in front of it about 5 feet from the curb alongside of the First National Bank building, until it was brought to a stop on Central avenue about 5 feet from the street car track. In the plaintiff's verified complaint he alleged "that at the time of the accident, and immediately before, plaintiff did not see the car driven by the defendant, and did not know of the defendant's approach," and that the plaintiff "could not, in the exercise of reasonable care or diligence, have known that the defendant was approaching said crossing."

On cross-examination the plaintiff was asked:

"Q. Mr. McKeon, since you swore in your complaint that at the time of the said accident, and immediately before, you did not see the car driven by the defendant Kilduff, and that you did not know of his approach, and that you could not in the exercise of reasonable care or diligence have known that Mr. Kilduff was approaching the crossing, how do you explain your present testimony that when you were at the center of Third Street, coming across, you saw him at a distance of only 50 feet away? A. Well, I can't-

Q. You can't explain that? A. I can't explain that."

Before the court had made its ruling sustaining the defendant's motion for a nonsuit, the court...