West v. Wilson

• Citation: 4 P.2d 469,90 Mont. 522
• Decision Date: 29 October 1931
• Docket Number: 6812.
• Parties: WEST v. WILSON.
• Court: United States State Supreme Court of Montana

4 P.2d 469

90 Mont. 522

WEST v. WILSON.

No. 6812.

Supreme Court of Montana

October 29, 1931

Appeal from District Court, Silver Bow County; Frank L. Riley Judge.

Action by Mabel West against John D. Wilson. From a judgment in favor of plaintiff, defendant appeals.

Reversed and remanded, with direction.

Lewis A. Smith, of Butte, for appellant.

William B. Frame and M. J. Doepker, both of Butte, for respondent.

CALLAWAY C.J.

On the evening of September 11, 1927, plaintiff, with her husband daughter, and little son were returning to Butte in an automobile after a day spent in fishing at Georgetown Lake. All went well until they reached the Hump, a well-known hill on the road between Anaconda and Butte where, upon going up the incline, the car ceased to run. Mr. West, plaintiff's husband, who was driving, ran it to the right side of the road and upon examination found a shortage of gasoline. The feed line had become loose from the carburetor. At this time Mr. Clark, whom West had seen at the lake, went by, and West accosted him, saying he was out of gas. Mr. Clark offered to supply the gasoline, and Mr. West and his daughter went to the Clark car parked about 100 feet distant to get it. Plaintiff remained in the front seat of the West car. The boy was asleep on the back seat. It was 9 o'clock in the evening and bright moonlight. At this juncture defendant, driving a Cadillac car, ran into the West car, the impact throwing plaintiff forward and injuring her. Some time thereafter plaintiff sued defendant for damages sustained as a result of the collision.

In her second amended complaint she alleged that the accident was caused by defendant's negligence, which she stated as follows: "That the said defendant carelessly and negligently failed and neglected to keep a lookout for vehicles stopped on the right-hand side of said highway, having regard to the width thereof and the use and traffic thereon, and in utter disregard of the safety of the lives and property of other persons on said public highway, in this, to-wit: that he failed and neglected to have the windshield of his said automobile clear and clean of dust, dirt, grit, mud and grease, and by reason thereof the view of said defendant was obscured. ***"

The trial judge was of the opinion that by the language following "to-wit" plaintiff narrowed her allegation charging negligence to the alleged condition of the windshield. Plaintiff's counsel contend that in this construction the court erred, but we agree with his honor. Plaintiff particularized; she charged defendant with negligence for failing to keep a lookout in that he failed and neglected to have his windshield "clear and clean of dust, dirt, grit, mud and grease, and by reason thereof the view of said defendant was obscured."

"The plaintiff may, if he so elects, narrow the issues to a single act of negligence; but, having done so, he must be confined in his proof to such act." Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 107 P. 416, 419, 135 Am. St. Rep. 630. "The plaintiff is limited to the particular act of negligence charged." Hunt v. White Sulphur Springs, etc., Ry. Co., 63 Mont. 508, 208 P. 917, 919. "He cannot *** assert a right to go without the lines within which he voluntarily confined himself." Aikens v. Frank, 21 Mont. 192, 53 P. 538, 540; Pierce v. Great Falls & Canada Ry. Co., 22 Mont. 445, 56 P. 867. "If this were not so, the very purpose of pleadings would be destroyed, and, instead of the complaint apprising the defendant of the proof which he would be called upon to meet, it would become a device to entrap him." Kakos v. Byram, 88 Mont. 309, 292 P. 909, 911; Flaherty v. Butte Electric Ry. Co., supra.

After his demurrer to plaintiff's second amended complaint was overruled, defendant interposed an answer consisting of general denials and two affirmative defenses. One of these is to the effect that plaintiff's car was improperly parked, and that it obstructed the usual and ordinary traffic on the highway, and the other is that the plaintiff did not carry or have burning a tail light as the statute requires. Plaintiff denied the affirmative defenses by reply.

Defendant's counsel argues that there is not any substantial evidence to prove that defendant's visibility was in any wise obscured by the condition of the windshield, and to this we agree. Mr. West testified that defendant's windshield "looked like it had been wet and dust got on it." Whether the dust was heavy or light he did not say. He did not say it covered the entire windshield, particularly that in front of the driver. He did not say from any examination made by him that the dust was dense enough to obscure the driver's vision to any extent whatever. He did not attempt to look through the windshield from the driver's side; he saw it from the front, not the rear, and in the moonlight. West said he had a conversation with Mr. Carmichael who had been sitting at defendant's right when the collision occurred. Several were then gathered about the cars. Defendant was about six feet distant from West and Carmichael; he was asserting that the West car had not displayed a tail light. Carmichael, West testified, said he could not see any lights on West's car "because the windshield was too dirty." Carmichael did not say anything as to what defendant could or could not see. He referred to himself only. The only other witness for plaintiff on this point was her daughter, who said defendant's windshield was dirty. When asked what she meant by that, she said it "had been spotted with rain and dust covered." Whether this referred to the entire windshield, and included that before the driver's eyes, she did not say. No other witness for plaintiff gave any evidence on this point. Mr. Clark, who examined the two cars and the situation carefully, did not say anything about the windshield. The fact is, according to the record, the subject of contention was whether the West car had a tail light burning, and upon this feature of the case the evidence is in hopeless conflict.

The mere fact that dust is observable upon the windshield of a car is not evidence of negligence on part of the driver. If it were few would be free from fault even on paved roads, and all would be guilty on gravel or dirt roads. Doubtless if one permits his windshield to become so covered with "dust, dirt, grit, mud and grease" as to obscure his vision so that he cannot readily...