Nangle v. Northern Pac. Ry. Co.

• Decision Date: 13 April 1934
• Docket Number: 7214.
• Citation: 32 P.2d 11,96 Mont. 512
• Parties: NANGLE v. NORTHERN PAC. RY. CO. et al.
• Court: Montana Supreme Court

32 P.2d 11

96 Mont. 512

NANGLE v. NORTHERN PAC. RY. CO. et al.

No. 7214.

Supreme Court of Montana

April 13, 1934

Rehearing Denied May 5, 1934.

Appeal from Sixth Judicial District Court, Gallatin County; Benjamin E. Berg, Judge.

Action by Margaret Nangle, as administratrix of the estate of Thomas Nangle, deceased, against the Northern Pacific Railway Company, the First National Bank & Trust Company, as executor of the last will and testament of Charles Benton Power Junior, deceased, and others. From a judgment against defendant bank, it appeals.

Affirmed.

John K Claxton, of Butte, and George Y. Patten, of Bozeman, for appellant.

Loble & Adair, of Helena, and Fred Lay, of Bozeman, for respondent.

ANDERSON Justice.

Plaintiff as administratrix of the estate of Thomas Nangle, deceased brought this action against the defendant bank, as executor of the last will and testament of Charles Benton Power, Jr., deceased, and others, to recover damages for the death of Thomas Nangle. The action involves the Automobile Guest Act of 1931 (Laws 1931, c. 195).

Shortly after 6 o'clock on the morning of December 21, 1931, Thomas Nangle was killed in an automobile accident occurring on the highway leading from Bozeman to Helena, and known as Federal Highway No. 10, at the point of its crossing the Northern Pacific Railway Company's main track about two miles west of Bozeman, while he was riding as a guest in the automobile owned and driven by Charles Benton Power, Jr. These parties, and others, drove from Helena to Bozeman in two cars on Saturday afternoon, December 19, 1931, over Highway No. 10. At the time of the departure of Nangle and Power from Bozeman it was a dark morning, although the skies were cloudless and the stars were shining. The road from Bozeman to the crossing and beyond was either paved or oiled. At or near the railway crossing, however, it was an oiled highway. Power was driving the automobile and Nangle was asleep with his head "on the back seat and his feet stretched out onto the floor," and his shoes off. The car driven by Power was a Ford sedan.

Power testified at the coroner's inquest, and this testimony was produced and received in evidence upon the trial; he having died during the time intervening between the inquest and the day of trial. All the witnesses agree that the road from Bozeman to the point where the road curves immediately before crossing the railway was free from snow and ice on the oiled or the paved portion thereof. The highway immediately before coming to the curve is approximately straight for about three-quarters of a mile. The road curves sharply to the north across the railroad track. Approaching the curve from Bozeman for a distance of over 3,000 feet no obstructions exist to interfere with the view of the driver of an automobile proceeding westerly along the highway from the direction of Bozeman. At a distance of 465 feet from the highway crossing of the railway there was on the day in question a "curve to the right" sign. This sign was an enameled metal sign 2 feet square, suspended on a 4X4 post painted white. It is in yellow or orange with black letters 6 inches high. The letters on the sign spell the word "Curve," and there was an arrow in the lower portion of it showing the direction of the curve to the right. The post bearing this sign was about 11 feet from the northerly edge of the oiled or paved portion of the highway.

It was testified to on the trial that as a result of tests made with an automobile driven at night of the same kind and model as the automobile in question, the sign just mentioned could be observed for a distance of 589 feet, and that the lettering appearing thereon could be read at a distance of 164 feet. At a distance of 415 feet from the crossing a second sign was located, being the conventional highway railway crossing sign and made of metal, mounted on a 4X4 post. This metal sign was two feet in diameter, with a large black cross through the center. On the upper portion of it appeared the letters "R R," six inches in height; and the sign itself stood the same distance from the edge of the improved portion of the highway as the other sign. Similar testimony was offered as a result of tests made as to the ability of the driver of an automobile to observe and read this sign, which could be observed and read at the same distances as the "Curve" sign.

The highway runs parallel with the railway for a distance of some 3,000 feet from the crossing, and the highway over this distance is approximately 89 feet distant from the railway. At the highway crossing a standard crossing marker was located on a 10-inch post, 11 feet high, bearing cross-arms 7 feet long. This sign can be observed in the daytime, from the driver's seat of an automobile traveling in a westerly direction, for a distance of 3,000 feet.

As Power approached the turn for the crossing his lights were burning so that he could see the curve. He testified that he was driving from 35 to 40 miles an hour down the highway, and did not reduce his speed either for the curve or the crossing. When he began to go around the curve, he immediately took his foot off the accelerator, and, as he made the turn, he encountered ice, felt the car slip, and it went over. He did not apply the brakes, because, as he testified, that would make the car slip the more. While the car was reposing on its side, Nangle spoke to Power, and before he could extricate himself from the car, a Northern Pacific freight train collided with the car and removed the front wheels and the motor from the body of the car. Thereafter it was found that Nangle was dead.

According to some of the witnesses, the oiled portion of the road on the curve and the approach to the crossing was free from ice and snow, although they stated that ice was present on the shoulders of the highway at this point. Other witnesses testified that the oiled portion on the left-hand side of the road at this point was covered with ice.

At the close of the plaintiff's case a motion for nonsuit was sustained as to all the defendants except as to the defendant bank as executor of the last will and testament of Power, deceased, and as to the bank the motion was denied. A motion on behalf of the bank for a directed verdict was denied. The case was submitted to the jury, which returned a verdict for $10,000 for the plaintiff. Judgment was entered in accordance with the verdict. The appeal is from this judgment against the defendant bank.

The bank, the sole appellant here, assigns as error the ruling of the trial court on its motion for nonsuit, its motion for directed verdict, and the making and entering of judgment against it.

In order to review these specifications of error it becomes necessary for us to construe certain portions of chapter 195 of the Laws of 1931, wherein it is provided:

"Section 1. The owner or operator of a motor vehicle shall not be liable for any damages or injuries to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire, nor for any damages to such passenger's or person's parent or guardian, unless damage or injury is caused directly and proximately by the grossly negligent and reckless operation by him of such motor vehicle.

Section 2. Any person riding in a motor vehicle as a guest or by invitation and not for hire, assumes as between owner and guest the ordinary negligence of the owner or operator of such motor vehicle.

Section 3. The ordinary negligence of the owner or operator of a motor vehicle as between owner and guest is imputed to any person riding in such vehicle as a guest or by invitation and not for hire."

It is conceded that Nangle at the time of his death was a guest riding in the automobile, owned and operated by Power at the time of the injury, by invitation and not for hire. Under these admitted facts and the provisions of the act, the appellant was not liable unless the damage or injury was caused directly and proximately by the grossly negligent and reckless operation of the automobile by Power. It therefore becomes necessary for us to give consideration to the scope and effect of the above-quoted act of the Legislature.

Prior to this enactment the law in this jurisdiction made it incumbent upon the driver of an automobile to use reasonable care for his guest's safety. McNair v. Berger, 92 Mont. 441, 15 P.2d 834. It is...