Simpson v. Miller

• Decision Date: 29 June 1934
• Docket Number: 7261.
• Parties: SIMPSON v. MILLER.
• Court: Montana Supreme Court

34 P.2d 528

97 Mont. 328

SIMPSON v. MILLER.

No. 7261.

Supreme Court of Montana

June 29, 1934

Appeal from District Court, Carter County; Stanley E. Felt, Judge.

Action by Walter Allen Simpson, a minor, by his guardian ad litem Mary L. Simpson, against De Loss Miller. Judgment for plaintiff, and defendant appeals.

Affirmed.

Denzil R. Young, of Baker, and Leon L. Wheeler, of Ekalaka, for appellant.

Thomas C. Colton, of Wibaux, F. N. Hamman, of Ekalaka, and A. G Shone and H. Lowndes Maury, both of Butte, for respondent.

MATTHEWS Justice.

Walter Allen Simpson, a minor 16 years of age, appearing by his guardian ad litem, Mary L. Simpson, instituted an action for damages for injuries inflicted upon him when his head was driven through the windshield of an automobile driven by one Sanford Myhre, as the result of a head-on collision with a car driven by the defendant, De Loss Miller.

The complaint filed alleges that the proximate cause of the injury received was the negligence of the defendant in driving his car around a street corner close to the curb on the defendant's left-hand side and to the left of a traffic post plainly marked "Keep to the Right" and into the Myhre car which was proceeding with due caution on the right-hand side of the street, near the curb.

The answer seeks to excuse defendant's negligence, and, as affirmative defenses, sets up three acts of contributory negligence as bars to a recovery: First, that Myhre negligently drove his car along a public highway for a number of miles "thru darkness and snowstorm" without lights, and was continuing to do so at the time of the collision; that he should have stopped at the first place where the lights could have been repaired; that defendant was unable to see the Myhre car because of the lack of lights and that the plaintiff should have protested to Myhre against driving without lights, and, if necessary, have left the car, but did neither. Second, that defendant's car lights were on and the boys should have seen the light before he rounded the corner and should have observed his line of approach, and, warned of danger, should have driven further to the right, and, if necessary, across the sidewalk and into the adjoining filling station, but did not. Third, that at the moment of impact the plaintiff rose from his seat to satisfy his curiosity as to whether the bumpers of the two cars would touch, and the injury resulted from his own negligence in thus placing his head against the windshield, whereas he would have suffered no injury had he remained in his seat.

By reply the plaintiff denied all new matter set out in the answer. The cause was tried to a jury. At the close of plaintiff's case the defendant moved for a nonsuit, and, at the close of the case, moved for an instructed verdict; both motions being denied. The trial resulted in a judgment of $5,000 for the injuries proved, and $200 expenses incurred in doctor and hospital treatment. The defendant moved for a new trial on various grounds, including that of the insufficiency of the evidence and the excessiveness of the verdict, alleged to have been given under the influence of passion and prejudice. The court ruled that, if within fifteen days the plaintiff would accept in writing a reduction of $1,200 from the judgment, the motion would be denied; otherwise the motion would be granted. The acceptance was duly filed, and the judgment reduced to $4,000. The defendant has appealed from the judgment.

The specifications of error raise the questions of the sufficiency of the evidence to warrant the verdict and judgment, of contributory negligence and its effect, of the correctness of the court's ruling in sustaining plaintiff's objection to one question, and in overruling defendant's objection to one question, and as to whether or not the court erred in refusing to give to the jury two instructions on contributory negligence, offered by the defendant, and, finally error in refusing to grant a new trial.

The sufficiency of the evidence, challenged by motion for nonsuit and motion for new trial, is to be determined by an examination of the record to ascertain whether there is any substantial evidence to justify the verdict (State v. Popa, 56 Mont. 587, 185 P. 1114); if the verdict is based upon evidence which the jury could have accepted as credible, it is binding on this court (Williams v. Thomas, 58 Mont. 576, 194 P. 500); and the fact that this court might have made a different finding on the evidence is not sufficient to warrant disturbing a verdict which has been approved by the trial court in denying a new trial (Trogdon v. Hanson Sheep Co., 49 Mont. 1, 139 P. 792).

Applying the foregoing rules to the record, the following is a fair statement of the facts concerning the movements of the respective parties up to and including the time of the accident and what transpired immediately thereafter: On the evening of December 29, 1930, Simpson and Myhre left Baker for Ekalaka, merely for a "joy ride." The distance between the two towns is forty-two miles. About twelve miles out of Baker their headlights burned out; the boys walked to a farmhouse a mile and a half distant, where they secured one bulb. The plaintiff suggested that they should stop at Willard, some miles further on, and there secure a second bulb, but were advised by a stranger, who gave them a ride back to their car, that bulbs for their car could not be secured at Willard. After installing the one bulb, the boys drove on to Ekalaka, but had proceeded but a mile or so when it burned out. They discussed their dilemma and agreed to proceed in the light of any car coming from either direction. Shortly a truck appeared traveling toward Ekalaka and Myhre drove ahead of it until they were within a radius of the street lights of Ekalaka, when he pulled away from the truck, deeming its light no longer necessary to their progress.

The Baker-Ekalaka highway on which the car was proceeding passes through the heart of the business section of the latter town and is intersected by the main street. Just before reaching this intersection, the boys could have pulled into a filling station, but whether or not they could have secured light bulbs there is not disclosed; they did not stop but drove slowly up the street near the curb on their right-hand side until they reached a point ten to fifteen feet from the corner at which stood a street light and with the lighted filling station on their right.

The defendant turned into the highway from main street, driving to his extreme left and passing within a foot of the lamp post and traveling at from thirty to thirty-five miles an hour, and met the Myhre car head-on on the side of the street reserved for cars going in the opposite direction. It is said that the street is eighty feet in width, and, had the defendant obeyed the injunction on the traffic post to "Keep to the Right," he would have been at least half that distance from the Myhre car when he straightened out on the highway. As the defendant rounded the corner, he saw the Myhre car and set his brakes, and as a result of this action the crash was not severe. The windshield on the Myhre car was broken and glass therefrom cut a gash from the point of plaintiff's cheek bone to the bridge of his nose and back to the corner of his eye; this gash went to the bone, "the flap laid back in the direction of his right ear." Plaintiff also received a cut a third of an inch long across his eyeball; the eyeball was punctured so that the "eyeball substance" protruded.

It is conceded that the proof of negligence and resulting injury is sufficient, but the defendant contends that the showing of contributory negligence as the proximate cause of the injury was sufficient to entitle him to a judgment of nonsuit or a directed verdict.

First it is asserted that the boys should have returned to Baker when their lights failed, and, not having done so, should have stopped at the first place where light bulbs were procurable and they should have tried to procure them at Willard. The defendant did not attempt to prove that such bulbs could have been procured at Willard or that there was any place between Baker and Ekalaka where bulbs could have been purchased or the car repaired if more than new bulbs were needed. The fact that the one bulb procured burned out within a very short time would indicate that something more than bulbs was necessary.

In this connection defendant predicates error on the admission, over objection, of the statement by the plaintiff as a part of his narration of what took place on the trip, that "I mentioned to Sanford that we ought to stop at Willard and try to get one of these bulbs, and one of these men *** said that we couldn't get bulbs at Willard to fit this car." This statement is hearsay but in the nature of a part of the res gestae. Further, if Myhre was negligent in traveling without lights prior to reaching Ekalaka, it was nonactionable negligence, as it cannot have been said to have been the proximate cause of the accident or to have contributed thereto.

When a guest or passenger is injured in a collision and contributory negligence is asserted, he is to be judged by the duty that the law imposes upon him "under the circumstances existing at the time of the accident." Berry on Automobiles (6th Ed.) § 624. "At the time of the accident" in the present case, the Myhre car was still without headlights, but it was on a lighted street and had come to a stop before it was struck. While snow was falling, vision was not obstructed. A witness testified that he could see both cars plainly before the accident at a distance of eighty-five feet; indeed, the defendant's testimony clearly indicates that he saw the car as soon as he turned the...