Westergard v. Peterson

• Decision Date: 16 June 1945
• Docket Number: 8545,8546.
• Citation: Westergard v. Peterson, 117 Mont. 550, 159 P.2d 518 (Mont. 1945)
• Parties: WESTERGARD v. PETERSON (two cases).
• Court: Montana Supreme Court

159 P.2d 518

117 Mont. 550

WESTERGARD v. PETERSON (two cases).

Nos. 8545, 8546.

Supreme Court of Montana

June 16, 1945

Appeal from District Court, Fifth Judicial District, Beaverhead County; Lyman H. Bennett, Judge.

Separate actions by Vic Westergard and by his wife, Leona Unangst Westergard, against Herman R. Peterson for personal injuries sustained in an automobile accident, which actions were consolidated for trial. From a judgment for defendant entered on a verdict returned pursuant to direction of the trial court, plaintiffs appeal.

Reversed and remanded for trial.

Theodore F. McFadden and Leonard A. Schulz, both of Dillon, for appellants.

T. J Davis, of Butte, Gilbert & Gilbert, of Dillon, and John R Cook, of Missoula, for respondent.

ANGSTMAN Justice.

This is an appeal from a judgment in two actions consolidated for trial. Vic Westergard is plaintiff in one action and his wife, Leona, is plaintiff in the other. Herman Peterson is the defendant in both actions.

Both plaintiffs seek damages as a result of personal injuries sustained in the same automobile accident. Both plaintiffs were guests riding with defendant in defendant's car which was driven by defendant when the accident occurred. The accident was due to the driving of defendant's car into a trailer attached to a truck which was traveling on the highway in the same direction as defendant.

Plaintiffs in their complaint charge gross negligence on the part of defendant, consisting of excessive speed, failure to maintain a proper lookout for other vehicles on the highway, failure to turn sufficiently on the left to avoid hitting the trailer, and failure to drive and operate his car in a careful manner. The answers were general denials with affirmative defenses wherein it was alleged in substance that plaintiffs were guilty of contributory negligence and assumption of the risk in voluntarily riding in the car driven by defendant when they knew that he was 'greatly exhilarated and somewhat under the influence of intoxicating liquor' furnished to defendant by plaintiff Vic Westergard and his brother Pete.

At the conclusion of all of the evidence defendant's motion for directed verdict was sustained. Pursuant to the direction of the court, the jury returned a verdict for defendant on which the judgments appealed from were entered.

The sole question presented on the appeal is whether the court was justified on the record in taking the case from the jury.

In considering this question we keep in mind the rule that upon motion for nonsuit or directed verdict we must view the evidence from the standpoint most favorable to plaintiffs and every fact must be deemed proved which the evidence tends to prove (Staff v. Montana Petroleum Co., 88 Mont 145, 292 P. 1042; Gerard v. Sanner, 110 Mont. 71, 103 P.2d 314), and that no case should be taken from the jury when the evidence is such that reasonable men might draw different conclusions therefrom. Pratt v. Kistler, 72 Mont. 356, 233 P. 600; Nangle v. Northern Pac. R. Co., 96 Mont. 512, 32 P.2d 11; Blinn v. Hatton, 112 Mont. 219, 114 P.2d 518.

As above noted the plaintiffs were guests of the defendant and in order for plaintiffs to recover against the defendant under our statute section 1748.1 et seq., it was incumbent upon them to show grossly negligent or reckless operation of the automobile by the defendant, because as guests the plaintiffs assumed the ordinary negligence of the defendant (section 1748.2, Revised Codes), or as stated in section 1748.3 the ordinary negligence of the operation is imputed to the guest riding in the vehicle.

Did the evidence offered by plaintiffs make out a case of gross negligence sufficient for the jury's consideration? The evidence shows that the two plaintiffs and the defendant Peterson left Dillon at about 4 o'clock in the morning of November 6, 1940, going to the Centennial Valley situated in the southern end of Beaverhead county. At about the same time another car, driven by Pete Westergard, a brother of plaintiff Vic Westergard, left Dillon going to the same place. In Pete Westergard's car were his wife Rose and a man by the name of Charles Pilgrim. All parties were on a wild goose hunt. The evidence offered by plaintiffs showed that they took with them a quart of whiskey and a quart of wine furnished by Vic and Pete Westergard, a fourteen-pound roasted turkey, other lunch material, and facilities with which to make coffee. They arrived in the Centennial Valley at about 7 a.m., and all had a drink--plaintiff Vic Westergard drinking wine and all the rest whiskey. They hunted until about 9 o'clock when they returned to the cars and had a second drink. They then drove farther up the valley and engaged in more hunting, after which they returned to the cars, had another drink and then ate the turkey and lunch. At about 2 o'clock they started back to Dillon. They reached the town of Lime at about 4 o'clock in the afternoon. They spent some time servicing their cars and then went to Mecham's Bar, where each of the four men bought a round of drinks for the party. At about 5 o'clock they left for Dillon. Pete Westergard started ahead of the Peterson car. He had with him his wife Rose and Charles Pilgrim. Shortly after his car left the defendant Peterson left and both of these plaintiffs were riding with him. All three were in the front seat. Defendant Peterson was driving and Mrs. Westergard occupied the middle of the seat and Vic Westergard sat on the right.

About two or three miles north of Lima defendant's car passed Pete Westergard's car. According to the testimony of the plaintiffs the defendant Peterson shortly after passing Pete Westergard's car, accelerated the speed of his car until he had reached 89 miles per hour, and that continuing at this speed at a point about 17 miles north of Lima he overtook a truck to which was attached a trailer, and that in attempting to pass the truck and trailer, which was traveling on its right-hand side of the road, because of the speed at which he was traveling, defendant was unable to go around the truck and trailer, and instead of passing, he crashed into the trailer. After doing so his car left the road and came to rest in a water-filled borrow pit adjacent to the westerly or left-hand side of the highway. The trailer and truck were traveling about 25 to 27 miles per hour when defendant struck the trailer. The accident occurred, according to some of the witnesses, between 5:20 and 5:30 at dusk at a time when it was difficult to see either with or without lights. The lights of the defendant's car had been turned on at the time it passed Pete Westergard's car and remained on until the time of the accident. The evidence is not clear as to how far the defendant's car was from the trailer at the time it was first observed by the occupants of the car, but there was evidence that the trailer had a light displayed. There was evidence by the plaintiffs that they endeavored to persuade defendant to slow down in his driving before the accident, but their attempts were in vain.

Plaintiff Leona Westergard said she knew defendant was driving 89 miles per hour because she looked at the speedometer and it showed that speed. Defendant sought to show that in her position in the car it was impossible for her to see the speedometer which was situated on the panel directly in front of the driver. Even if defendant's contention in this regard be correct, it would not aid defendant because both plaintiffs testified that when they tried to get defendant to slow up he said that he was only going 89 miles per hour. Hence, there was substantial credible...