Thibaudeau v. Uglum, 81-553

• Decision Date: 20 January 1983
• Docket Number: No. 81-553,81-553
• Citation: 656 P.2d 219,201 Mont. 260
• Parties: Frank Drew THIBAUDEAU, Plaintiff-Appellant, v. Robert Lawrence UGLUM, Defendant-Respondent.
• Court: Montana Supreme Court

Page 219

656 P.2d 219

201 Mont. 260

Frank Drew THIBAUDEAU, Plaintiff-Appellant, v. Robert Lawrence UGLUM, Defendant-Respondent.

No. 81-553.

Supreme Court of Montana.

Jan. 20, 1983.

For majority opinion see 653 P.2d 855.

SHEEHY, Justice, concurring in part and dissenting in part:

I concur in the remand of this cause for a new trial for the failure of respondent to make adequate discovery. I dissent to the further conclusion of the majority that plaintiff is not entitled to a directed verdict on liability. In my opinion, the defendant in this intersection-collision case is negligent as a matter of law, and the plaintiff is not guilty of any contributory or comparative negligence as a matter of law.

My dissent is based on two grounds: (1) the right of way statute gave the plaintiff an undisputed right to proceed and placed an undisputable burden upon the disfavored driver to stop if necessary to avoid the collision; and (2) that lookout of the plaintiff, proper or otherwise, is not a factor of proximate cause in this case.

I. PLAINTIFF HERE HAD AN ABSOLUTE RIGHT TO THE RIGHT OF WAY.

The collision here occurred on a clear but wintry day at an uncontrolled intersection in urban Great Falls. Plaintiff was approaching the intersection from the right, the defendant from the left. Although there is dispute about their speeds, the evidence indicates that neither was exceeding the speed limit as each approached the intersection and entered it.

The right of way statute provides:

"61-8-339. Vehicle approaching or entering intersection. (1) When two vehicles enter or approach an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.

(2) The right-of-way rule declared in subsection (1) is modified at through highways and otherwise as stated in this chapter."

Subsection (1) of section 61-8-339, MCA, applies in this case. Without doubt the statute establishes a favored driver on the right of the intersection and a disfavored driver on the left of the intersection.

The language of the statute is that the vehicles "enter or approach" at "approximately the same time." That language precludes any consideration by this Court or the District Court of who entered the intersection first. If in fact the vehicles are entering or approaching the intersection at approximately the same time, it is the duty of the driver on the left to yield to the driver on the right.

The meaning of the word "approximately" as used in this statute was discussed in Moore v. Kujath (1947), 225 Minn. 107, 29 N.W.2d 883, 886, 175 A.L.R. 1007, where the Minnesota Court said:

"By approximately, the legislature must have meant the approach to an intersection of two vehicles so nearly at the same time that there would be imminent hazard of a collision if both continued the same course at the same speed. In that case, he on the left should yield to him on the right. While the driver on the left is not required to come to a dead stop as at a through highway stop sign, unless it is necessary to avoid a collision, he nevertheless must approach the intersection with his car so under control that he can yield the right of way to a vehicle within the danger zone on the right ...."

In Fester v. George (1946), 71 S.D. 424, 25 N.W.2d 455, 456, it is said:

"... in determining the right of way, it is without legal significance which car actually entered the intersection first if it appears that the vehicles approached or entered the intersection at approximately the same. It follows that the single fact that plaintiff entered the intersection first did not give him a right of precedence over defendant. The controlling issue is whether the two cars were approaching or entering the intersection at approximately the same time; if they were, the plaintiff being on the left, should have yielded to the defendant; if they were not, no question of right of way is presented. The parties are approaching the intersection 'at approximately the same time' whenever the two vehicles are in such a relative position that upon appraisal of all of the factors in the situation it should appear to a man of ordinary prudence approaching from the left that there is danger of collision if he fails to yield the right of way."

Therefore, I cannot agree with the following language in the majority opinion:

"This conflicting testimony raised a factual issue for the jury to decide as to whether defendant entered the intersection first (according him the right-of-way) or whether the vehicles approached the intersection at approximately the same time (giving the right-of-way to plaintiff.)"

That language does not embody the law, ignores the wording of our right-of-way statute on uncontrolled intersections, and restores the "race to the intersection" test that the legislature itself intended to abolish in 1965.

Section 61-8-339, MCA, is the successor statute to section 32-2170, R.C.M.1947. Before 1965, the right-of-way statute read as follows:

"32-2170. Vehicle approaching or entering intersection. (a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.

"(b) When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right ..."

It will be noted that paragraph (a) of the old statute provided for vehicles where one had entered the intersection and one was approaching the intersection.

Paragraph (b) provided for vehicles entering the intersection at approximately the same time.

The old statute was unsatisfactory, particularly because paragraph (a) provided in effect for a race to the intersection which led to the amendment in 1965.

Paragraph (a) in the old statute was deleted, and a new paragraph provided as follows:

"32-2170. Vehicle approaching or entering intersection. (a) When two (2) vehicles enter or approach an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right." (Emphasis added.)

The amendment in 1965 can be found in Laws of 1965, § 1, Ch. 175. The statute was again amended in 1979, but without affecting the language which we have quoted above.

We have heretofore construed the statute in accordance with the legislative intent until this case. In DeVerniero v. Eby (1972), 159 Mont. 146, 496 P.2d 290, an intersection collision case, this Court said:

"Defendant's failure to yield the right of way constituted both statutorily recognized duty and breach of that duty. It is clear that by statutory directive automobiles approaching or entering an intersection are accorded the status of favored and disfavored drivers to facilitate the orderly movement of automobiles." (Emphasis added.) 159 Mont. at 151, 496 P.2d at 292.

In Yates v. Hedges (1978), 178 Mont. 488, 585 P.2d 1290, another intersection collision case, we reversed the District Court under the provisions of the right-of-way statute where the collision had occurred at an uncontrolled intersection and stated the following:

"... The rule for drivers approaching an intersection is primarily one of reasonableness:

" 'If a traveler, not having such right of precedence, comes to the crossing and finds no one approaching it upon the other street within such distance as reasonably to indicate danger of interference or collision, he is under no obligation to stop or to wait, but he may proceed to use such crossing as a matter of right.' (Citing a case.) (Emphasis in original opinion.)

"Here, there was another driver approaching on the right within a distance that reasonably indicated danger of interference or collision. Yates was under a legal duty to yield to him rather than accelerate to try to make it through the intersection before him." Yates v. Hedges (1978), 178 Mont. 488, 495, 585 P.2d 1290, 1294.

In Marcoff v. Buck (1978), 179 Mont. 295, 587 P.2d 1305, we reversed the District Court for not applying the right-of-way rule to give the plaintiff on the right the right of way.

The only two cases in Montana that uphold the right of a plaintiff who was on the left at the intersection to recover damages involved situations where the driver on the left would not have collided with the other vehicle unless the vehicle on the right was violating the law; for example, driving at an excessive rate of speed. See Jessen v. O'Daniel (1960), 136 Mont. 513, 349 P.2d 107, and Flynn v. Helena Cab and Bus Company (1933), 94 Mont. 204, 21 P.2d 1105.

The 1965 legislature, in plain and easily understood language, did what...