Sorrells v. Ryan

• Citation: 281 P.2d 1028,129 Mont. 29
• Decision Date: 31 March 1955
• Docket Number: No. 9294,9294
• Parties: Arthur D. SORRELLS, Plaintiff and Appellant, v. Mrs. Frank M. RYAN, Defendant and Respondent.
• Court: United States State Supreme Court of Montana

Page 1028

281 P.2d 1028

129 Mont. 29

Arthur D. SORRELLS, Plaintiff and Appellant, v. Mrs. Frank M. RYAN, Defendant and Respondent.

No. 9294.

Supreme Court of Montana.

Submitted Nov. 12, 1954.

Decided March 9, 1955.

As Amended March 25, 1955.

Rehearing Denied March 31, 1955.

Poore & Poore, Butte, argued the case orally for appellant.

Corrette, Smith & Dean, Butte, for respondent. Robert D. Corette and Allen R. McKenzie, Butte, argued the case orally.

ANGSTMAN, Justice.

This is an appeal by plaintiff from a judgment for defendant dismissing the action after a demurrer to plaintiff's complaint was sustained and plaintiff elected not to plead further.

The sole question involved is whether the complaint states facts sufficient to constitute a cause of action.

The complaint contains two causes of action. They seek damages for personal injuries sustained by plaintiff as a result of defendant driving her automobile against him as he was crossing a street in Butte about midway between street intersections.

Each cause of action is based upon the last clear chance doctrine. The only difference between the causes of action is that in one it is alleged that defendant saw plaintiff crossing the street and in the other that she should have seen him in the exercise of reasonable care in time to avoid the injury.

The accident happened on Front Street in Butte which runs in an easterly and westerly direction. Plaintiff was crossing the street from south to north on the evening of September 29, 1952, at about 9 o'clock p. m. The place where he was crossing was alleged to be well lighted and near the Northern Pacific Depot and between Wyoming Street and Utah Avenue.

Front Street is alleged to be approximately 60 feet wide and equally divided into lanes for east and west automobile traffic. In each cause of action it is alleged that before commencing to cross Front Street, plaintiff looked to see that there was no automobile traffic approaching him from the southwest on Front Street and that the traffic control signal at the intersection of Utah Avenue and Front Street controlling traffic at that intersection about one-half block to the east showed 'red,' that he thereupon carelessly and negligently assumed that his path northward across Front Street would be unaffected by automobile traffic while he crossed and that while crossing he negligently became oblivious to traffic which might approach him on Front Street from the east and continued to be thus oblivious to such traffic until he was struck by defendant; that defendant approached in her car from the east traveling in a westerly direction at a speed of about 15 miles per hour.

In the first cause of action it is alleged that defendant while not less than 90 feet from plaintiff saw him traversing the street; that defendant then knew, or in the exercise of reasonable care should have known from plaintiff's stooped posture and bearing that he was oblivious to traffic approaching him and might continue to walk across the street and into the path of defendant's approaching, car; that although defendant saw plaintiff in his position of increasing peril she carelessly and negligently continued to drive her car southwesterly on Front Street toward him and suddenly ran upon him and struck him with great force 'with the center of her car at a point about the middle of the lane for southwesterly bound traffic,' causing the injuries complained of.

In the second cause of action it is alleged that defendant was negligent in not maintaining proper lookout; that had she used reasonable care in maintaining a proper lookout she would have seen plaintiff crossing Front Street ahead of her at not less than about 108 feet and continuously thereafter and that she would have had sufficient time to take steps to avoid striking plaintiff; that without maintaining proper lookout and without warning to plaintiff by blowing the horn or otherwise and without turning to her left though there was space of 33 feet on Front Street available to her, she struck him with the center of her car at about the middle of the southwesterly lane of traffic, causing the injuries complained of.

In considering the sufficiency of the complaint we keep in mind the rule that whatever is necessarily implied in or reasonably inferable from an allegation must be taken as directly alleged. Johnson v. Johnson, 92 Mont. 512, 15 P.2d 842; Gotzian & Co. v. Norris, 89 Mont. 307, 297 P. 489; Johnson v. Herring, 89 Mont. 156, 295 P. 1100; Cramer v. Deschler Broom Factory, 79 Mont. 220, 255 P. 346; Buhler v. Loftus, 53 Mont. 546, 165 P. 601.

Likewise a good pleading does not require nor permit pleading of the evidence relied on. Johnson v. Johnson, supra; Mining Securities Co. v. Wall, 99 Mont. 596, 45 P.2d 302; First State Bank of Philipsburg v. Mussigbrod, 83 Mont. 68, 271 P. 695; Enterprise Sheet Metal Works v. Schendel, 63 Mont. 529, 208 P. 933.

Plaintiff relies largely on the case of Pollard v. Oregon Short Line Ry., 92 Mont. 119, 11 P.2d 271.

That case established the rule in this state that the doctrine of the last clear chance has application to a case not only where defendant actually saw plaintiff in a position of peril in time to avoid the injury by the exercise of reasonable care but also to a case where in the exercise of reasonable care he should or could have discovered plaintiff in his perilous position in time to avoid the injury. True that was a case where the injury arose at a railroad crossing where there was a clear legal duty on the part of those operating trains to keep a lookout.

The rule was reaffirmed in Armstrong v. Butte, A. & P. R., 110 Mont. 133, 99 P.2d 223, also a crossing case. Defendant takes the view that the complaint is deficient because it lacks allegation that plaintiff was crossing the street at a place where defendant had reason to anticipate his presence.

This contention cannot be sustained. Ordinary caution must be observed by drivers and pedestrians both at and between crossings. Carey v. Guest, 78 Mont. 415, 258 P. 236. Operators of motor vehicles are duty bound to keep a lookout for pedestrians and others using the streets. Johnson v. Herring, supra.

The fact that plaintiff was crossing the street between crossings and not at the crossing does not absolve defendant from the duty to exercise reasonable care to avoid injuring him. The doctrine of the last clear chance presupposes negligence on the part of plaintiff and even though his negligence may consist of the violation of a city ordinance prohibiting the crossing of streets between intersections yet the doctrine applies. Mansperger v. Ehrnfield, 59 Ohio App. 74, 17 N.E.2d 271; Sanchez v. Gomez, 57 N.M. 383, 259 P.2d 346.

It is contended by defendant that plaintiff was able to avoid the accident by the exercise of reasonable care on his part by stopping. Here it is alleged in the first cause of action that plaintiff was oblivious to traffic which might approach him on Front Street and that defendant knew or should have known this from his stooped posture and bearing. Defendant should have known, if these allegations be true, that plaintiff would not stop walking. He was then unaware or unconscious of his danger. Compare Mihelich v. Butte Elec. Ry., 85 Mont. 604, 622, 281 P. 540; McIntyre v. Northern Pac. Ry., 56 Mont. 43, 180 P. 971.

He was struck, according to the complaint, by the center of the car at about the middle of the southwesterly lane of traffic. This would be after he had crossed the center line of the street by about 15 feet. The complaint alleges that defendant maintained a speed of 15 miles per hour which was alleged to be excessive and failed to sound the horn, failed to reduce her speed, failed to swerve to the left to avoid plaintiff or to stop her car.

It is fairly inferable from the allegations of plaintiff's complaint that he stepped into the danger zone from westbound traffic the moment that he crossed the center line of the highway. He was struck after walking 15 feet past the center line. While it is not alleged how fast plaintiff was walking it is fair to assume that he did not exceed the usual gait of about three miles per hour. The automobile, which was traveling 15 miles per hour, in order to reach the point of impact would have traveled about 75 feet after plaintiff had stepped into its lane of travel. Under these circumstances it would be for the jury to say whether defendant had the last clear chance to avoid the injury.

We need not at this stage of the case determine whether plaintiff may recover.

We have no yet learned what the evidence will disclose. At this stage of the case we must presume that the allegations will be sustained by the evidence and 'if there is a reasonable doubt as to the sufficiency of the allegations, the doubt must be resolved in favor of the complaint.' Mihelich v. Butte Elec. Ry., supra. [85 Mont. 604, 281 P. 547].

Here it is alleged in the first cause of action that defendant saw plaintiff traversing the street and knew or in the exercise of reasonable care should have known from plaintiff's stooped posture and bearing that he was oblivious to traffic approaching him and yet did nothing to attempt to avoid running into him.

If these allegations be sustained by evidence, then they make out a sufficient case for the jury under the doctrine of last clear chance.

Most of the cases quoted from in the dissenting opinion are inapplicable here. Some of them are cases where the injured person ran suddenly ahead of the oncoming vehicle where the driver had no opportunity to avoid the injury; some discuss the question of the sufficiency of the evidence to warrant recovery which is premature so far as this case is concerned; others discuss the effect of contributory negligence, a question not involved here because the plaintiff readily admits that he was guilty of contributory negligence; still others discuss the question of the color of the clothing worn...