Pilgeram v. Haas

• Decision Date: 27 March 1946
• Docket Number: 8587.
• Citation: 167 P.2d 339,118 Mont. 431
• Parties: PILGERAM v. HAAS et al.
• Court: Montana Supreme Court

167 P.2d 339

118 Mont. 431

PILGERAM v. HAAS et al.

No. 8587.

Supreme Court of Montana

March 27, 1946

Appeal from District Court, Sixteenth District, Garfield County S.D. McKinnon, Judge.

Action by William P. Pilgeram against Frank J. Haas and another for damages for personal injuries sustained in an automobile accident. From a judgment for the defendants, the plaintiff appeals.

Reversed and remanded with direction to grant the plaintiff a new trial.

E. J. Stromnes, of Great Falls, and Lester H Loble and Henry Loble, both of Helena, for appellant.

Robert E. Purcell, of Jordan, and Jurdine, Chase & Stephenson, of Great Falls, for respondents.

JEREMIAH J. LYNCH, District Judge (sitting in place of ANGSTMAN, J disqualified).

This is an appeal by the plaintiff from a judgment in favor of the defendants in an action wherein he sought damages of them for personal injuries.

In plaintiff's amended complaint it is alleged that the defendant, Frank J. Haas, was on the 25th day of May, 1942, engaged in the contracting and construction business in the state of Montana; that on said day U.S Highway No. 18 was a public highway and thoroughfare within the state of Montana; that on said day between the hours of 5 and 6 o'clock p.m. the plaintiff was driving a Ford automobile in an easterly direction on said highway in the county of Garfield; that he was driving the same in a careful manner and at a rate of speed of approximately 40 miles per hour; that on said day the defendant, Frank J. Haas, was the owner of a Kenworth truck, a trailer and a caterpillar elevating grader which were used by him in his said business; that on said day the defendant, Austin Tayer, was in the employ of the defendant, Frank J. Haas, and that acting within the scope of his employment he was between the hours of 5 and 6 o'clock p.m. engaged in driving the truck in a westerly direction on said highway in the county of Garfield; that the trailer was attached to the truck at the time, had a width of approximately 7 feet, 11 inches and had loaded upon it the grader; that between the hours of 5 and 6 o'clock p.m. the automobile and truck passed each other in the county of Garfield at a point approximately 35 miles east of the town of Winnett, Montana, where the highway was about 18 feet wide; that the part of the grader known as the disk then extended 15 inches over the left-hand side of the trailer; that when the motor vehicles were in the act of passing each other the disk severed the left arm of plaintiff about two inches above the elbow, the arm being at the time resting on the sill of the left door of his car; that the injury was caused by the negligence of the defendant, Austin Tayer, and consisted of the following acts or omissions: (a) His failure to drive the truck and trailer in a careful manner considering the width of the road, the width of the trailer and the protrusion beyond the side of the trailer; (b) his failure to load the grader in such a manner that the disk would not constitute a hazard to on-coming traffic; (c) his failure to fasten the grader on the trailer so that the same would not move and allow the disk to project beyond the edge of the trailer; (d) his failure to place a warning device on that part of the grader extending over the edge of the trailer; (e) his failure to examine the load from time to time to make sure that the disk did not extend so far over the edge of the trailer as to constitute a hazard to passing traffic; (f) has failure to operate the truck and trailer on the right side of the highway; (g) his causing and permitting the disk to protrude beyond the center of the highway and into that part thereof reserved to plaintiff; (h) his failure to use a pilot car to precede him on the highway for the purpose of warning on-coming traffic of the hazard created by the moving truck. In the amended complaint it is further alleged that the plaintiff has been permanently injured and has suffered and will continue to suffer great pain in his crippled left arm. Damages in the sum of $40,000 for permanent injuries and in the sum of $7,500 for impairment of earning capacity are prayed for against the defendants.

The allegation of negligence on the part of the defendant, Austin Tayer, and the allegations that the grader was on the trailer at the time plaintiff was injured, that the disk extended over the left-hand side of the trailer 15 inches or at all, that the disk severed plaintiff's left arm, that the automobile was driven by plaintiff in a careful manner and at a speed approximating 40 miles per hour, and that plaintiff was permanently injured and has suffered and will continue to suffer great pain are denied in the answer; all the other allegations contained in the amended complaint are admitted. By way of affirmative defense it is charged in the answer that plaintiff in driving the Ford automobile at and immediately before the time of his injury was guilty of contributory negligence which proximately caused the same, as follows: (a) That he failed to keep a proper or any lookout ahead; (b) that he failed to turn the car sufficiently to the right so as to pass the truck and trailer without injury; (c) that he drove with his left arm protruding out of the front window of the car when passing the truck and trailer; (d) that he failed when passing the truck and trailer to remove his left arm from its position out of said window; (e) that in approaching and passing the truck and trailer he operated the car to the left of the center of the highway; (f) that in approaching and passing the truck and trailer he operated the car with his left arm protruding beyond the center line of the highway. In his reply the plaintiff denied the allegations contained in said affirmative defense.

The case came on for trial before the court, sitting with a jury, on the 12th day of June, 1944, the plaintiff being present and represented by counsel, Messrs. E. J. Stromnes and Albert H. Angstman, and the defendants being present and represented by counsel, Messrs. Art Jardine, John D. Stephenson and Robert E. Purcell.

The plaintiff, called as a witness in his own behalf, testified that on the 25th day of May, 1942, and for many months prior thereto he was employed as a field man by the State Land Department; that in the afternoon of said day, his duties requiring his presence in Jordan, Montana, he was driving a Ford automobile in an easterly direction toward the town on U.S. Highway No. 18; that on the way he stopped at Winnett and bought a bottle of wine which he never opened; that between the hours of 5 and 6 o'clock at a point about 35 miles east of Winnett he saw the truck being driven by the defendant, Austin Tayer, coming west on said highway; that the grader with a disk fastened to it was upon the trailer; that the truck was over the center of the highway and the disk stuck out some distance beyond the center of the highway but it was not visible to him at the time because of a bend in the road; that the truck was traveling at a speed of 30 or 35 miles an hour and taking up at least 11 feet of the highway; that he was driving the automobile at the rate of 35 or 40 miles per hour and was well over on his side of the highway; that he had both hands on the wheel but his left elbow protruded out of the window of the automobile two or three inches; that the running board of the automobile was about eight inches wide; that when the automobile and trailer were passing each other the disk came in contact with the left-hand door about an inch above the handle and at the same time cut off his left arm above the elbow; that then his car proceeded 50 or 75 feet before he brought it to a stop; that in his estimation the highway at the point where the collision occurred was about 18 feet wide, and that the trailer carried no warning flags. The plaintiff further testified that the defendant, Austin Tayer, likewise halted his truck, came over to him and noticing that his left arm was bleeding badly he applied a tourniquet and rushed him westward in his car to a hospital in Lewistown, Montana, where he received medical and surgical treatment. He also testified that in passing the halted truck he saw the disk for the first time and it was sticking out beyond the trailer. He also testified that his injured left arm always pained him more or less; that for nearly a year before his injury he earned $175 a month, and that his injury greatly impaired if it did not entirely destroy his ability to make a living. On cross-examination the plaintiff testified that his car was about eight feet in width and that the disk stuck out about 14 inches from the edge of the trailer. He admitted that when his deposition was taken on the 24th day of August, 1942, he stated that at the time the truck and automobile passed each other on the highway the truck was on the right side of the road going west and the automobile was on the right side of the road going east.

Frank J. Haas, one of the defendants, called as a witness for the plaintiff, testified that on or about the 25th day of May, 1942, he was engaged in building an emergency airport for the government at Cut Bank, Montana; that on that day he owned the Kenworth truck, trailer and grader in question and directed the defendant, Austin Tayer, to load the grader on the trailer and move the same from Wibaux county, Montana, to Cut Bank; that the grader was used to dig out dirt and load it into a truck if removal became necessary; that the grader weighed around 11,500 pounds; that the disk which was fastened to it operated much like a disk plow on a farm; that the disk was made of steel and had a diameter of 30 inches, and that the length of the trailer was about 24 feet.

Austin Tayer, the other defendant,...