Watkins v. Williamson

• Decision Date: 06 August 1957
• Docket Number: No. 9512,9512
• Citation: 132 Mont. 46,314 P.2d 872
• Parties: Arnold J. WATKINS, Plaintiff and Appellant, v. Kenneth WILLIAMSON, Defendant and Respondent.
• Court: Montana Supreme Court

Page 872

314 P.2d 872

132 Mont. 46

Arnold J. WATKINS, Plaintiff and Appellant, v. Kenneth WILLIAMSON, Defendant and Respondent.

No. 9512.

Supreme Court of Montana.

Submitted May 20, 1957.

Decided Aug. 6, 1957.

Harvey B. Hoffman, Great Falls, argued orally, for appellant.

Graybill, Bradford & Graybill, Truman G. Bradford, Great Falls, argued orally, for respondent.

CASTLES, Justice.

This is an appeal from a judgment for defendant and against plaintiff on the verdict of a jury in an action for personal injuries sustained when defendant's truck plunged into a culvert washout near Monarch, Montana.

On June 3, 1953, in Cascade County, a flood disaster occurred, affecting the community near Monarch, Montana, causing great distress from fear of loss of life, limb and property, and people were in dire need of help.

The plaintiff, defendant, and other of their neighbors were gathered for the purpose of combating the flood in the small town of Raynesford. Word came that help was needed at the Gies' Cabins which were about two miles south of Monarch. A number of the men at Raynesford, all neighbors and friends, responded to the call for assistance and at least four different parties in separate vehicles and at different times left for Monarch. Plaintiff went with one Julius Paulson in a jeep vehicle. Defendant went in his truck accompanied by three men, Kessner, Kelly and McAllister. The defendant, Williamson, had been using his truck all day at Raynesford in fighting the flood, driving it through the water getting the brakes wet. Plaintiff himself had driven the defendant's truck through the water on the day in question.

When defendant and his party arrived at Monarch the stopped at a tavern known as 'Cubs Den'. Plaintiff and Paulson were already there while some of the other parties had gone on ahead. After the group had been in the tavern for a few minutes, defendant called that there was work to be done, and he and his party accompanied by plaintiff and Paulson went outside to defendant's truck. At that time, shortly before midnight on June 3, 1953, it was very dark and raining hard. After the group got to the truck, Paulson refused to go on account of the rain and conditions of the roads, saying, 'It is dangerous and not advisable to go.'

Defendant and his three companions got into the cab of defendant's three-quarter ton truck. Plaintiff then got into the cab and sat on the lap of Kelly, making five men in the cab of one small truck. Plaintiff sat next to the right-hand door which could not be closed on account of the crowded conditions of the cab and rode in said cab with the door open and his head out of the window. Riding thusly, the party proceeded up the road for the purpose of aiding the flood victims, if possible, at the Gies' Cabins.

All of the witnesses for both plaintiff and defendant testified that the maximum speed which defendant traveled was fifteen miles per hour, and that the truck was traveling from three to five miles per hour at the time of the accident. Upon approaching a culvert or bridge across the highway, the defendant noticed about thirty feet ahead of him what he thought for a moment was something lying in the road. He immediately applied his brakes and slowed the truck down to about three or four miles per hour, but on account of the wet brakes, they did not hold; and the truck ran into what turned out to be a hole.

The flood waters had washed out the dirt from under the road, so that the road caved in. Other cars had passed over the same part of the highway in safety just moments prior to the trucks passing. The truck fell into the hole with only the rear wheels left on the pavement. The plaintiff either fell or jumped from the cab, the door being open, and fell into the water in the hole under the truck. The plaintiff was in the water hanging onto the truck and calling for help. None of the other occupants were hurt and were all sitting in their places when the truck came to rest. They climbed out but could not see the plaintiff who was down in the water. It was dark and impossible to see down into the hole. The defendant heard the calls of the plaintiff for help and crawled down into the hole to find him. He pulled the plaintiff from the water to safety and found that the plaintiff had been injured. A few minutes later the entire road collapsed making it impossible for vehicles to pass in either direction.

The plaintiff sustained severe injuries and brought this action against the defendant for damages for the injuries.

The plaintiff's complaint charged that the gross negligence and recklessness of the defendant directly and proximately caused said personal injuries and damages, and set forth certain acts as being gross negligence and recklessness.

The plaintiff and appellant cites six specifications of error, which for the purpose of this opinion may be grouped under two headings.

The first one is based upon the refusal of the trial court to allow the following evidence to be admitted. The plaintiff's offer of proof was that the witness Watkins, the plaintiff, would testify that in response to his statement to the defendant that he sure got banged up in this deal, and that he would have some nice bills to pay, that the defendant answered him, 'Arnie, you don't have to worry, I have insurance and they have to take care of your damage.'

The other question, posed by the plaintiff's specifications of error, goes to the giving of instructions by the trial court as to whether or not a guest relationship within the 'guest statute' existed between the plaintiff and the defendant.

The first question set forth above will now be considered. The accident occurred shortly before midnight on June 3. Sometime thereafter, the plaintiff was being taken from the scene of the accident near Monarch, by one Bud Gerhart, to the hospital in Lewistown, Montana, accompanied by the defendant and others. They arrived at the hospital on June 4, at about 3:45 a. m. The conversation took place several hours after the accident and many miles distant therefrom. Immediately prior to this statement, the defendant had said the reason he could not stop was he had no brakes. The testimony prior to that time was that the brakes were wet and that was the reason they did not hold. The testimony had also shown that the plaintiff himself had driven the truck through the water during the day. The statement that the brakes would not hold was by no stretch of the imagination an admission of negligence, when it is clear that the reason they didn't was that the truck had been driven through water all day on emergency missions which was no fault of the defendant, the plaintiff himself participating.

Plaintiff has cited Tanner v. Smith, 97 Mont. 229, 33 P.2d 547, in support of his theory that such evidence is admissible. In the Tanner case the statement about insurance was at the time of the accident in the heat of the discussion about the driving of the parties involved.

In that case the statement was by its nature an admission of negligence, which as above-noted the statement was not, in this case, and was also made immediately after the accident at a time when it was considered part of the...