Puckett v. Sherman & Reed

• Decision Date: 27 February 1922
• Docket Number: 4680.
• Citation: 205 P. 250,62 Mont. 395
• Parties: PUCKETT v. SHERMAN & REED.
• Court: Montana Supreme Court

205 P. 250

62 Mont. 395

PUCKETT v. SHERMAN & REED.

No. 4680.

Supreme Court of Montana

February 27, 1922

Appeal from District Court, Silver Bow County; Edwin M. Lamb, Judge.

Action by C. T. Puckett against Sherman & Reed, a corporation. From judgment for plaintiff, and from order denying a new trial the defendant appeals. Reversed and remanded.

J. A Poore, of Butte, for appellant.

Wheeler & Baldwin, of Butte, for respondent.

HOLLOWAY J.

This action was instituted to recover damages for personal injuries and the destruction of property occasioned by a collision between plaintiff's motorcycle and defendant's automobile. Plaintiff prevailed in the lower court, and defendant appealed from the judgment, and from an order denying a new trial.

Main street, running north and south in the city of Butte, crosses Granite street at right angles in the business district of the city. Plaintiff was riding upon his motorcycle going north on the east side of Main street, and crossing Granite street, when Arthur Leland, driving one of defendant's taxicabs south on the west side of Main street, turned east onto Granite street, where the two vehicles collided, causing the damage of which complaint is made. At the time there was in force an ordinance regulating vehicle traffic on the streets, and plaintiff charges that Leland violated the ordinance (1) in exceeding the speed limit, (2) in failing to keep to the right when he turned from Main street onto Granite street, and (3) in failing to have the taxicab under control while on the intersection of the two streets. There is substantial evidence tending to support each of these charges, and, in the light of the jury's verdict, it must be accepted as established for all purposes of these appeals that defendant's agent was guilty of negligence.

The ordinance fixed eight miles per hour as the maximum speed at which either plaintiff or Leland was permitted to travel upon the intersection of the streets, and a violation of the ordinance constituted legal negligence. Neary v. Northern P. Ry. Co., 41 Mont. 480, 110 P. 226.

Plaintiff testified that he was upon the intersection of the two streets when he first saw the taxicab, and, concerning the rate at which he himself was traveling at the time, said:

"I was going north; I had just entered into Granite street probably 15 feet. I was within 6 feet of the east side of Main street. My intended destination was Mathews, in Walkerville. I was going up Main street at my usual rate of speed at that time, as far as the city was concerned. My usual rate of speed traveling up Main street at that time was anywhere between 10 and 12 miles an hour; maybe was going 10 miles. * * * I will say I was going about 8 or 9 miles, not more than that. I will say I was going 8 miles an hour. I couldn't say exactly what I was going, but no faster than 9 if I was going 9, but I will say I was traveling at no more than 8. * * * I was not exceeding 9 miles an hour."

He testified further that he was about 80 feet from the taxicab when he first realized that he was in a position of danger, and that he did not do anything except to continue at the same speed at which he was traveling, though he tried to increase his speed, but was unable to do so.

In each of several instructions the court submitted a particular provision of the ordinance--the provision limiting the speed at street intersections by instruction 4--and in each instance directed a verdict for plaintiff if the jury found that Leland had violated the particular provision, and as a proximate result plaintiff was injured....