Morton v. Mooney

• Decision Date: 11 May 1934
• Docket Number: 7219.
• Parties: MORTON v. MOONEY et al.
• Court: Montana Supreme Court

33 P.2d 262

97 Mont. 1

MORTON v. MOONEY et al.

No. 7219.

Supreme Court of Montana

May 11, 1934

Rehearing Denied June 15, 1934.

Appeal from District Court, Silver Bow County; T. E. Downey, Judge.

Action by Clifford Morton against Albert S. Mooney, Jr., and another. Judgment for plaintiff, and defendants appeal.

Reversed and remanded, with direction to dismiss the action.

R. F Gaines, of Butte, for appellants.

W. B Frame and M. J. Doepker, both of Butte, for respondent.

MATTHEWS Justice.

The defendants, Albert S. Mooney, Jr., and Butte Aircraft Corporation, have appealed from a judgment awarding the plaintiff damages for personal injuries sustained and the wrecking of a Ford coupé, when the car in which plaintiff was riding ran into the rear end of a Ford truck owned and operated in the defendant company's business.

The accident occurred on January 2, 1932, on the Harrison boulevard, the main highway leading south from Butte, near the Butte airport and the home of defendant Mooney. At the time of the accident, midforenoon, the weather was very cold but the air was clear and visibility good, except that from a point a short distance north of the road leading from the Mooney house to a point approximately 600 feet further north a dense fog bank or cloud had settled down upon the highway.

Morton, with one Ralph Olson, drove from Butte through the fog bank and on a distance of six-tenths of a mile, to the Five Mile House, where they turned the car and started back for Butte, the round trip consuming about five minutes until they again entered the fog bank. During this light period, Mooney, assisted by two employees of the Aircraft Corporation and by the use of the truck, had moved Mooney's sedan, which had been out all night and would not start, from behind the house out onto the highway and into the fog bank. The highway is surfaced to a width of twenty-four feet, of which fourteen to sixteen feet in the center had been cleared of snow; eight to ten feet of "black surface" was disclosed, with from three to four feet of packed snow on each side flanked by snow banks, approximately two and one-half feet deep.

The plaintiff testified that, after entering the fog bank, he was driving about fifteen miles per hour, and that "I could see possibly twenty and twenty-three feet ahead of me." Later he stated, "I say my visibility was good for twenty feet." He testified that he suddenly saw what he took to be the back of a car twenty feet ahead of him, and "in just a split second this dense fog arose in front of me and I whirled the car to the left, and just about five feet ahead of me was the point of contact; the body of the car which I did not see was out in the fog."

The grounds of negligence alleged are that the defendants stalled their cars on the highway and permitted them to remain at an angle across the entire width of the travelable portion thereof, failed to warn on-coming travelers of the blocking of the way or place a lookout for that purpose, and left the engine of the truck idling so that the exhaust added to the density of the fog and obscured the rear end of the truck.

The conflict in the evidence as to the cars being stationary or in motion may properly be resolved in favor of the plaintiff, for, as the fog bank was but approximately 600 feet in length, if the cars were moving ahead at the rate of ten or fifteen miles per hour, as contended by the defendants, and had disappeared in the fog by the time the plaintiff turned at the Five Mile House, they would have been beyond the fog bank before the plaintiff entered it. It must be remembered, however, that the plaintiff was but five minutes in driving from the fog bank to the Five Mile House, turning, and returning to enter the fog, and consequently the period during which he was driving north and could have seen a car on the road south of the fog bank was less than two and one-half minutes. On the other hand, as the cars were not in sight at the time Morton passed the Mooney house going south, Mooney and his helpers had less than three minutes in which to push the sedan from the rear of the Mooney house out onto the highway, a feat accomplished with some difficulty and slowly, as one of the helpers was pushing on foot, and then proceed several hundred feet along the highway. If the cars were stalled, it was for but a short period of time, at most something in the neighborhood of two minutes.

There is no showing of lack of diligence in removing the cars from the road, nor, in the circumstances, can it be said that, in that brief space of time, it was negligent to fail to place a lookout behind the cars. There were but two men with them; the third, after pushing on foot in aid of the truck, turned back toward the Mooney house when the cars got onto the highway. Complaint is made that this third man should have warned plaintiff as he approached, but, if the cars were stalled in the fog, that fact was as much unknown to him as to Morton.

There is in the record no suggestion of any law, rule, or regulation against stopping a car on the highway under consideration. While motion is the general law of the road, in the absence of any governmental prohibition or restriction, the mere stopping of an automobile on a public highway does not constitute negligence so as to render one liable for injuries flowing from collision with it by any vehicle. 1 Blashfield's Ency. of Auto Law, 556; 42 C.J. 1006. The right to stop when the occasion demands is an incident to the right to travel. Silvey v. Harm, 120 Cal.App. 561, 8 P.2d 570, 573. Of course, if a car becomes disabled, the motorist should employ due diligence to remove it from the highway within a reasonable time, but, in the absence of any showing of lack of diligence, the mere fact that a disabled car is standing on the highway does not constitute actionable negligence. Scoville v. Clear Like Bakery, 213 Iowa, 534, 239 N.W. 110; 42 C.J. 1041; Albertson v. Ansbacher, 102 Misc. 527, 169 N.Y.S. 188.

No possible negligence can be predicated upon the showing made to the effect that the cars were momentarily stationary because of disability of the sedan. In order to warrant the verdict and judgment, therefore, the record must contain substantial credible evidence from which the jury could reasonably say that the truck was on the wrong, or the left-hand, side of the road.

Using a map to scale and toy automobiles of like scale, the plaintiff, who did not see the defendants' cars prior to the accident, attempted to reconstruct the scene just prior to, and at the moment of, the impact, which he describes as "what I discovered when I came into this fog bank." He said: "I have placed what I indicate as the Studebaker with the right front wheel up near the pile of heavy snow on the east side of the highway and the right rear wheel over on the black top; *** immediately back of that I have placed the Ford truck in a straight line with the Studebaker, with the left rear wheel *** extending into the section of the packed snow on the west side of the highway." Thus situated, the cars would be heading northeast, their right sides forming an acute angle with the snow bank on the east side of the highway, while the plaintiff, approaching from the south on the right side of the road, would be paralleling that snow bank, coming into the acute angle.

Plaintiff testified that he was driving on the right side of the highway when he suddenly saw, twenty feet ahead of him, what h...