McNair v. Berger

Decision Date26 October 1932
Docket Number6944.
Citation15 P.2d 834,92 Mont. 441
PartiesMcNAIR v. BERGER.
CourtMontana Supreme Court

Appeal from District Court, Deer Lodge County; George B. Winston Judge.

Action by Benedict P. McNair against Lee M. Berger. Judgment for plaintiff, and defendant appeals.

Motion to strike certain portions of brief sustained, motion to strike entire brief denied, and judgment affirmed.

Requested instruction in respect to negligence as proximate cause of injury held properly refused as so involved as likely to confuse jury.

R. F Gaines, of Butte, for appellant.

J. B C. Knight, of Anaconda, and Clift & Glover, of Great Falls, for respondent.


Plaintiff sustained injuries on July 29, 1928, as the result of a Buick automobile, in which he was riding, being driven by the defendant into another automobile used as a wrecker, standing on the main highway between Butte and Anaconda. He brought this action to recover damages. The jury awarded him $30,000, for which judgment was entered. Defendant's motion for new trial was denied and he appealed from the judgment.

The complaint charges negligence on the part of defendant in driving at an excessive rate of speed, in failing to have the automobile under control, and in running it into and against the wrecker when there was ample room to pass by it in safety. The answer admits the collision and that as a result plaintiff sustained injuries, but otherwise amounts to a general denial. As an affirmative defense it pleads contributory negligence on the part of plaintiff. The affirmative allegations of the answer were put in issue by the reply.

The evidence, omitting unimportant details, discloses that plaintiff, defendant, and Neill Wilson, upon invitation, together attended a dance at the Anaconda Country Club on the night of July 28th, leaving there after midnight to return to Butte. Plaintiff was then 25 years of age. Plaintiff and Wilson had been schoolmates, but defendant was a stranger to plaintiff. In the evening of July 28th the three met in Butte and it was decided that they would go to the dance in defendant's car. Defendant had one or two drinks at a "soft drink parlor" in Butte before they left for the dance, but plaintiff did not know what the drinks consisted of. He himself had no drinks. On the way to the dance, and before reaching Gregson Springs, defendant and Wilson drank from a small container which plaintiff guessed was a whisky bottle. They stopped at Gregson Springs before proceeding to the dance, where they engaged in gambling, and defendant and Wilson had some drinks there but plaintiff did not know whether it was intoxicating liquor or not. From there they went to the Anaconda Country Club. Defendant drove the car and did so at a reasonable speed and in a careful manner. There was evidence that plaintiff was reasonably assured that defendant had something to drink while at the country club but not to the extent that it had any effect on him, judging from his actions.

Before leaving the country club plaintiff, who said he was always nervous when riding in cars, and because he thought that defendant had some drinks, told Wilson to ask defendant if he wanted plaintiff to drive home. Wilson, instead, asked defendant if he (Wilson) should drive, and defendant replied that he could drive all right. Plaintiff, before getting into the car at the country club to return to Butte, looked at defendant carefully, and said that he appeared to be sober; that "he walked and talked all right, and I saw him dancing the same as any other person would dance. *** He was not talkative or hilarious or anything of that kind so as to indicate that he had been drinking."

There was a dirt road from the country club to the main highway. This road was traversed by defendant in a careful manner. Upon reaching the main highway, which was paved, defendant accelerated his speed. Plaintiff's version of what then transpired is as follows: "When we got onto the pavement Mr. Berger accelerated his machine and we gathered speed to a point where I became nervous and I made a remark something to the effect of 'what is the hurry.' And he apparently paid no attention to that, but built up more speed, and I then told him that we had all night to get home in. And after one of those remarks the only reaction I got from him was that he rather smiled and stepped harder on the throttle. It was night and we were gaining momentum all the time and we passed several cars and I was very nervous. Then we came to these two little jogs in the road this side of where the accident occurred, and he went into those curves at an excessive rate of speed. I know on one of those curves he frightened me so that I stiffened out so that my trousers were off the cushion and my weight raised from my feet to the back of the seat, and I said, 'For Christ's sake slow down!' In going around those curves the car tilted, and I could hear the tires sing as they do when you go around a corner fast. After we came out of those curves he continued to go still faster. In going around these curves he did not stay on his side of the pavement, but rounded the curves; and at one of the curves I thought he was going to go off the pavement, but he managed to stay on. He continued to go still faster. I have always been nervous in a car and I was certainly nervous that night passing those cars and driving at such an excessive rate of speed, and for some distance I rode looking down into my lap and trying to get hold of myself, and as I was looking down I rather glanced up a little and saw the speedometer, and I could see that the needle was pointing at seventy miles an hour, and I looked up and saw some lights and we hit the wrecker. I did not know at that time just what it was we hit."

From the record it appears that the paved portion of the highway was eighteen feet wide and at that time there was a five-foot graveled shoulder on each side of the pavement. The wrecker was standing on the highway with its engine running and with both headlights, a spread light between them, a tail-light, and a working light, all lighted. The working light was focused on a Ford car in the ditch beside the road. Those in control of the wrecker were about to use it for the purpose of taking the Ford car from the ditch. There was a gradual curve in the road at the place where the wrecker stood. It stood on the right-hand side of the road going to Butte, but was facing in the general direction of Anaconda. There was ample room on the paved part of the highway to allow cars to pass the wrecker. Both of the left wheels and, according to some of the evidence, the right rear wheel, of the wrecker were off the paved portion of the highway. The right front wheel was on the pavement, thus placing the wrecker in an angling position across the right portion of the highway going towards Butte, so that the lights would not point directly up the pavement but in an angling direction toward the right side of the road going towards Anaconda. There is evidence that the wrecker weighed 4,500 pounds. It was standing between forty and fifty feet towards Anaconda from a certain culvert. The brakes on the wrecker were set at the time of the collision.

When the cars came to a stop after the impact, the wrecker was facing Butte and was situated in the ditch beside the culvert upside down, and the Buick came down on its side on the pavement near the culvert and burst into flames. Wilson was killed as the result of the collision, and plaintiff sustained serious injuries which will be hereafter more fully explained.

Aside from the testimony of plaintiff, there was evidence that defendant's car, as it hit the wrecker, was moving at sixty miles per hour, or more. Defendant contends that the evidence is insufficient to show that his negligence as charged was the proximate cause of plaintiff's injuries. The question was raised on motion for a directed verdict.

The rule of law existing in this jurisdiction at the time the plaintiff was injured made it incumbent upon the driver of an automobile to use reasonable care for his guest's safety. Liston v. Reynolds, 69 Mont. 480, 223 P. 507; Hornbeck v. Richards, 80 Mont. 27, 257 P. 1025. By chapter 195, Laws of 1931, the rule has been changed so that the driver is liable to his guest only in case of injury caused by his "grossly negligent and reckless operation." Section 1. But chapter 195 has no application to cases arising prior to its passage and approval.

Whether the injury sustained is the proximate consequence of defendant's wrongful act is ordinarily a question for the jury, and it is only where the court is able to see from the undisputed facts that the injury is a remote, and not the proximate, result of defendant's act that the question becomes one of law for the court. Boyd v. Great Northern Ry. Co., 84 Mont. 84, 274 P. 293.

"In determining the proximate cause of an injury or accident, we must always look to the succession of events existing in every transaction, more or less dependent each upon the preceding event, and it is the province of the jury to look to such succession of events and ascertain whether they are naturally and probably connected with each other by a continuous sequence or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time. Milwaukee, etc., Ry. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256. If this sequence of events leads up to and results in the injury without intervening independent cause, it is the efficient and proximate cause." Burns v. Eminger, 84 Mont. 397, 276 P. 437, 442.

The wrecker was making a proper and necessary use of the highway under the emergency existing. Kastler v. Tures, 191 Wis. 120, 210 N.W. 415. Its...

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