Williams v. Hample
| Decision Date | 27 March 1922 |
| Docket Number | 4747. |
| Parties | WILLIAMS v. HAMPLE. |
| Court | Montana Supreme Court |
Commissioners' Opinion.
Appeal from District Court, Silver Bow County; Edwin M. Lamb, Judge.
Action by L. V. Williams against J. E. Hample. From a judgment for plaintiff, defendant appeals. Affirmed.
Frank & Gaines, of Butte, for appellant.
Maury & Melzner, of Butte, for respondent.
Plaintiff seeks to recover damages for personal injuries alleged to have been caused by the negligent driving of defendant's automobile upon and against him, by Allen Gordon, a chauffeur of defendant, while the said Gordon was acting within the scope of his service. The defendant's answer admits the ownership of the automobile in him, the service of Gordon, the collision of his automobile with plaintiff, the injury of plaintiff, and alleges that such injury was proximately caused by and due to the contributory fault and negligence of plaintiff. The allegation of contributory negligence is denied by the reply. No challenge of any pleading was made, either in the trial court or here. The trial was had in the district court of Silver Bow county, and resulted in a verdict for plaintiff upon which judgment was entered. This appeal is from the judgment and from an order denying a new trial.
It was briefed and argued here that defendant's negligence consisted in his driving other than on the right side of the street, in his excessive rate of speed, and his failure to sound an alarm.
The testimony on behalf of plaintiff shows that the accident causing plaintiff's injury occurred about 11 o'clock on the night of August 20, 1918, on Granite street in the city of Butte; that defendant was traveling westerly on Granite street in a Cadillac automobile driven by his chauffeur; that it was raining "very hard" and had been for some time; that plaintiff came out of a garage on the north side of the street, looked up and down the street saw nothing--however he could see only about one-half block each way on account of the rain--and that he then proceeded south across the street on a run; that at the center of the street he was struck by defendant's car, thrown into the air, coming down on the hood of the car, rolled off on the fender and then on the street; that the car was traveling between 30 and 35 miles per hour; that it was muffled so as to make no noise and no alarm was sounded; that a street car track was located in the center of the street and the street was of sufficient width for a driveway on each side of the track. The testimony then detailed the injuries of plaintiff and the damage he had suffered.
That this testimony established the injury and damage of plaintiff (injury, however, was admitted by the answer), and that the negligence of defendant was the proximate cause thereof, and that a prima facie case had been made, was inferentially admitted by defendant, for he did not move for a nonsuit, a dismissal, a judgment, nor ask for any other relief when plaintiff rested his case. Likewise, we must infer that defendant was mindful of the rule that contributory negligence, unless it is to be inferred from plaintiff's testimony, is a matter of defense to be established by a preponderance of the evidence. Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Nelson v. City of Helena, 16 Mont. 21, 39 P. 905; Hunter v. Mont. Cent. Ry Co., 22 Mont. 525, 57 P. 140; Howard v. Flathead Ind. Tel. Co., 49 Mont. 197, 141 P. 153; Neilson v. Missoula Creamery Co., 59 Mont. 270, 196 P. 357; Lampe v. Jacobsen, 46 Wash. 533, 90 P. 654.
Defendant's testimony is, in effect, that he was not traveling to exceed 20 miles per hour when the accident occurred and that he was pursuing a course on the north or right side of the street. In other material matters it does not differ substantially from plaintiff's testimony. However, in some instances, it aids plaintiff's theory of negligence, for example: It discloses that the windshield was blurred by rain, so that only the outline of a pedestrian could be seen through it; that plaintiff rolled off the right fender of the car onto the street, landing in the middle of the street car track.
At the close of the evidence, defendant moved for a directed verdict upon the ground that plaintiff's own negligence proximately...
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