Moore v. Jacobsen

• Decision Date: 15 December 1953
• Docket Number: No. 9227,9227
• Citation: 263 P.2d 713,127 Mont. 341
• Parties: MOORE v. JACOBSEN et al.
• Court: Montana Supreme Court

Page 713

263 P.2d 713

127 Mont. 341

MOORE v. JACOBSEN et al.

No. 9227.

Supreme Court of Montana.

Submitted Jan. 3, 1953.

Decided June 26, 1953.

Dissenting Opinion Dec. 2, 1953.

Rehearing Denied Dec. 15, 1953.

Brattin & Habedank, Sidney, for appellant. Otto T. Habedank, Sidney, argued the case orally.

Sanders, Cresap & Koch, Sidney, for respondent. C. T. Sanders, Sidney, argued the case orally.

ANGSTMAN, Justice.

Plaintiff was injured by being struck by an automobile driven by defendant, Soren Jacobsen, son of defendant Ingolf Jacobsen. He brought this action to recover damages sustained by him. The jury returned a verdict in his favor against both defendants in the sum of $1,853.90. Defendant's motion for a new trial was denied and they have appealed from the judgment entered on the verdict.

The accident occurred at about 9:30 p. m. on November 18, 1950, on the highway about 3 1/2 miles in a westerly direction from Fairview, Montana. The events preceding and leading up to the accident were these: Plaintiff and one Stanley Petersen left the Jake Latka farm after work and traveled by automobile to Fairview where they had at least six drinks of whiskey and then started in the same automobile, a Studebaker, to another farm home west of Fairview. Harvey Nelson joined them at Fairview for the latter journey. The car was driven by Stanley Petersen; at about 3 1/2 miles west of Fairview, and as they had passed over the brow of a hill the motor failed; the car was permitted to coast down the hill about 750 feet and then brought to a stop on the oiled portion of the highway and in the right-hand lane of traffic; the highway at that point was 25 feet wide with no painted center line; while the car was thus parked plaintiff and Harvey Nelson got out of the car; plaintiff was attempting to attach a trouble light to the battery located under the hood of the car, standing to the left of the car with his head under the hood in so doing; at the direction of plaintiff the lights on the car were turned off while he was attempting to attach the light to the battery; a few seconds after the lights were turned off defendant Soren Jacobsen, driving his father's car and in company with his brother Inge and his cousin Elroy Kettleson, approached from the east; the lights on his car would not drop down upon the parked car as it came down the hill until within about 150 feet from it; he saw plaintiff's car on the highway when about 50 feet from it and saw plaintiff leaning against the front fender; he drove the car to the left lane of traffic thinking that he left a clearance of about 4 feet between the right-hand side of the car he was driving and the body of plaintiff; there was evidence that defendant Soren Jacobsen had stated that he was traveling about 45 miles per hour; patrolman John Corder testified that defendant Soren Jacobsen estimated his speed at 40 miles per hour; Soren testified that he was traveling about 35 miles per hour; as he passed the plaintiff's car, his car struck plaintiff on his right hip causing the injuries complained of; apparently the door handle of defendant's car struck plaintiff because shortly after the accident it was discovered that the handle of the door was missing; defendant Soren Jacobsen realizing that he had hit someone drove some distance past the plaintiff's car and then turned around and drove back and found plaintiff lying on the road quite badly injuried; the road was icy and slippery and defendant Soren Jacobsen did not apply the brakes on the car he was driving as he passed the plaintiff's car; tracks made by defendant's car indicate that it was 18 inches or 2 feet left of the center of the road; defendant Soren Jacobsen did not sound his horn and plaintiff and those traveling with him did not observe the approach of defendant's car although the lights were on and visible for a distance of 500 feet or more; neither did they hear the car approaching although it was noisy because the muffler was disconnected; no one saw plaintiff move as the defendant's car passed his car; plaintiff testified that he did not move as the defendant's car passed until he was struck, that if he did step back from the car he did not step across the 'white mark.'

Defendants raise two principal questions by the appeal. The first contention is that there is no evidence of negligence on the part of defendants. Their contention is that in passing the Moore car they passed on the left-hand lane as they had a right to do. The evidence, however, shows that defendant Soren Jacobsen, as well as Elroy Kettleson, admit seeing plaintiff standing by his car with his head under the hood of his car as they passsed; no warning was given of the approach of defendants' car, nor was there any attempt to slacken the speed of the car as it passed the Moore car. There was evidence as above noted warranting a finding that it was then traveling at about 40 or 45 miles per hour. These acts of negligence, along with others, were charged in the complaint as being the proximate cause of plaintiff's injuries. The proof was sufficient to make out a prima facie case of negligence sufficient to carry the case to the jury.

'Whether or not sufficient care has been exercised in passing a parked or stationary vehicle is ordinarily a question of fact for the jury.' Blashfield, Cyc. of Automobile Law & Practice, Vol. 2A, § 1221, p. 95.

In the light of the evidence above alluded to concerning the speed and lack of warning this rule has application here and the court did not err in denying defendants' motion for non-suit and in denying defendants' motion for new trial for insufficiency of the evidence to justify the verdict.

Defendants next contend that the evidence shows negligence on the part of plaintiff barring recovery. In reliance upon the well-established rule that violation of a statute constitutes negligence per se they contend that plaintiff was guilty of negligence in the following particulars: That plaintiff was intoxicated and not using the care that a sober person would have exercised; that no warning was given to approaching vehicles of the fact that the stalled car was parked on the highway; that plaintiff made no effort to protect himself by stepping to a place of safety and plaintiff was not exercising proper care for his own safety.

Reliance is placed upon R.C.M.1947, § 31-108, as amended by Chapter 118, Laws of 1949, which in part provides: 'For the purpose of this act, the following acts committed relative to the use of the highways and the operation of motor vehicles in the state of Montana shall constitute a crime punishable by law as hereinafter provided: * * *.

'4. Driving a vehicle, of any type, at night without suitable lights or reflectors * * *.

'17. Stopping, turning or parking on or along the main traveled highway where such vehicle can not be seen by the driver of any other vehicle approaching from either direction within five hundred (500) feet * * *.

'34. Walking * * * on a highway while under the influence of intoxicating liquors. * * *

'40. Driving or operating an automobile * * * upon or over any highway or street or public thoroughfare within the state of Montana * * * while under the influence of intoxicating liquor or any drug or narcotic.'

This statute was passed after the decision in Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025, holding that stopping a car on a highway does not constitute negligence.

It may be conceded that there is sufficient evidence to warrant a finding of negligence on the part of plaintiff for violation of R.C.M.1947, § 31-108, as amended. On the assumption that plaintiff was guilty of negligence it was still a question for the jury to determine whether his negligence or that of defendant Soren Jacobsen was the proximate cause of the injuries.

Defendants contend that plaintiff could have parked the car on a side road near where it was actually parked and that it could have been driven and parked on the side road with perfect safety. The rule is that the operator of a motor vehicle has the right to stop it on the highway for the purpose of making repairs. 60 C.J.S., Motor Vehicles, § 331, p. 774. This right is contemplated by paragraphs 15 and 17 of section 31-108, as amended by Chapter 118, Laws of 1949.

Stopping on the highway, as well as the absence of lights on his car, are immaterial even though they constitute negligence, unless such negligence proximately contributed in a material degree to the injuries. See Albrecht v. Waterloo Const. Co., 218 Iowa 1205, 257 N.W. 183; Blakely & Son v. Jones, 186 Ark. 1169, 57 S.W.2d 1032; Cooper v. Agee, 222 Ala. 334, 132 So. 173; Miles v. Webb, 162 Md. 269, 159 A. 782; Gammon v. Wales, 115 Cal.App. 133, 300 P. 988; Becker, for Use And Benefit of Becker v. Mattel, La.App., 165 So. 474.

And what constitutes the proximate cause of an injury is ordinarily one of fact for the jury where, as here, there is room for a difference of opinion among reasonable men. Marsh v. Ayers, 80 Mont. 401, 260 P. 702; Burns v. Eminger, 84 Mont. 397, 276 P. 437; McNair v. Berger, 92 Mont. 441, 15 P.2d 834; Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025.

The jury was warranted in finding that the absence of lights on the car did not contribute to plaintiff's injuries since defendant Soren Jacobsen actually saw the car on the highway and saw plaintiff standing beside the car and would not have driven his car any differently had the lights been on. The fact that plaintiff did not park on the side road was a circumstance to be condisered by the jury, but it does not follow as a matter of law that the failure to do so bars recovery, particularly where, as here, the car was not allowed to remain on the highway an unreasonable lenght of time, compare Davis v. North Coast Transporation Co., 160 Wash. 576, 295 P. 921, and where plaintiff has no reason to suppose that it would take any extended amount of...