Wolf v. Barry O'Leary, Inc.

• Decision Date: 13 December 1957
• Docket Number: No. 9556,9556
• Citation: 132 Mont. 468,318 P.2d 582
• Parties: LaRue M. WOLF, Plaintiff and Appellant, v. BARRY O'LEARY, INC., a Corporation, Defendant and Respondent.
• Court: Montana Supreme Court

Page 582

318 P.2d 582

132 Mont. 468

LaRue M. WOLF, Plaintiff and Appellant, v. BARRY O'LEARY, INC., a Corporation, Defendant and Respondent.

No. 9556.

Supreme Court of Montana.

Submitted Sept. 12, 1957.

Decided Nov. 7, 1957.

Rehearing Denied Dec. 13, 1957.

Joseph P. Hennessey, Billings, M. J. Doepker, Butte, Joseph P. Hennessey, Billings, argued orally, for appellant.

Wiggenhorn, Hutton, Shiltz & Sheehy, Billings, John C. Sheehy, Billings, argued orally, for respondent.

HARRISON, Chief Justice.

This is an appeal from a judgment for the defendant, Barry O'Leary Inc., in a personal injury suit instituted by the plaintiff, LaRue M. Wolf.

On the evening of May 21, 1954, the plaintiff was riding in an automobile driven by her husband Benny Wolf. They, with two of their friends, had been to a dance at Dave's Inn on Highway No. 10, east of the City of Billings. They left their friends on the Billings Bench about 2:00 a. m. on the morning of May 22, and proceeded along old Highway No. 10 to a point where it intersects with new Highway No. 10 near the fairgrounds at the edge of the City of Billings. Benny Wolf stopped at this intersection then crossed Highway No. 10 onto 6th Avenue North leading into the City of Billings.

At that time he proceeded along 6th Avenue North, traveling in a westerly direction. The weather conditions that night, by the uncontradicted testimony of the witnesses for both plaintiff and defendant, consisted of a very light drizzle which did not tend to obstruct visibility to any appreciable degree. While traveling along 6th Avenue North the plaintiff's husband ran into a ditch dug by the employees of the defendant the previous afternoon. As a result of the collision with the ditch the plaintiff suffered certain alleged injuries for which she brought this action.

The complaint alleges that the servants of the defendant dug the ditch; that the ditch extended about three quarters of the way across the street; that it was the duty of the defendant to safeguard the driving public by maintaining good and sufficient barricades and lights at the excavation for their protection. Contrary to this duty it is alleged that defendant left the excavation open and unguarded and without warning or signal lights to indicate its presence, knowing that the driving public were accustomed to and were likely to travel upon said avenue and thereby be endangered; that as a result of this failure to warn and protect the driving public, the plaintiff's husband, while driving in a reasonable and prudent manner, drove his car into the hole, as a direct and proximate result of which the plaintiff suffered certain enumerated injuries.

The answer of the defendant admits the excavation, but alleges that it was well guarded and protected; admits plaintiff's husband drove his car into the hole and denies each and every other allegation of the complaint.

As an affirmative defense defendant alleged the contributory negligence of the plaintiff in not remonstrating her husband for driving too fast under adverse weather conditions and in not keeping a proper lookout. The reply of the plaintiff puts in issue these allegations.

At the trial of the action it was established that 200 feet east of the accident there was a highway marker which stated the speed limit to be twenty-five miles per hour. Benny Wolf and plaintiff testified they knew of the sign, but that they were driving well within the restriction. They testified that just about two blocks from the scene of the accident a car, moving at an estimated speed of forty miles per hour, passed them; that they proceeded behind this car maintaining their former speed when they observed it slowing down. They moved upon it very quickly and were about to pass it when it suddenly shot ahead, whereupon Benny Wolf testified he then pulled back into his former position. It was at this point that he perceived the ditch and slammed on his brakes. The car however skidded fifty feet, crossed the ditch and landed on the other side pushing over some of the dirt, estimated at about a yard, from the ditch embankment. Both Benny Wolf and the plaintiff testified that at the time the brakes were applied they were proceeding at the speed of about twenty to twenty-five miles per hour; that there were no warning lights burning, no barricades visible, or any other warning device apparent at the excavation.

Three other witnesses for the plaintiff testified that just subsequent to the time of the accident they had not observed any lights burning or barricades visible as they approached the excavation. The testimony of defendant's servants was to the effect the lights and barricades were placed properly at five o'clock the previous afternoon and the lights were burning when they left. Another witness testified they were burning at about 10:00 o'clock the previous night. A highway patrolman testified he estimated the speed of Benny Wolf's car at fifty miles per hour when Benny applied the brakes fifty feet from the ditch. He based his estimate on the length of the skid marks plus the fact the car had completely hopped the ditch and collided with the pile of dirt on the west side of the ditch.

On cross-examination plaintiff's attorney adduced the fact that the road was slippery, especially so just east of the ditch because of certain clods of dirt and mud deposited there in the digging; that because of this slippery condition a car would skid further than on dry pavement, so that any estimate based upon skid marks on dry pavement would necessitate revision to allow for such slipperiness.

The court instructed the jury and they rendered a verdict for the defendant, upon which plaintiff moved for a new trial. The motion was denied by the district court, and the plaintiff appeals to this court upon twelve alleged specifications of error.

In specification number nine the plaintiff alleged error in the trial court for giving the following Instruction:

'Contributory negligence is such negligence on the part of LaRue Wolf as helped to produce the damages complained of, and if you find from a proponderance of the evidence in this case that LaRue Wolf was guilty of any act of negligence alleged in defendant's answer or as shown by the evidence that proximately caused or contributed to the damages complained of, then the plaintiff cannot recover in this action, and your verdict must be for the defendant, regardless of whether or not you find that the defendant was also guilty of negligence.' Emphasis supplied.

The court also gave another Instruction, No. 17, defining contributory negligence, as follows:

'You are instructed that contributory negligence in its legal signification, is such an act or omission on the part of a plaintiff amounting to a want of ordinary care as, concurring or cooperating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of.'

The question arises whether this instruction, read in connection with the instruction referred to in specification number nine, gives a correct statement of the law. If it does, then no error can be predicated upon the instruction read alone because the test is whether in the light of the other instructions given an instruction, though erroneous actually prejudiced the party complaining. McGregor v. Weinstein, 70 Mont. 340, 344, 225 P. 615.

This court has uniformly set down the rule that for contributory negligence to be available as a defense the plaintiff's conduct must amount to a want of ordinary care, which concurring and cooperating with the negligent act of the defendant is a proximate cause of the injury. Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025; Hughey v. Fergus County, 98 Mont. 98, 37 P.2d 1035; Daniels v. Granite Bi-Metallic Co., 56 Mont. 284, 184 P. 836; Neary v. Northern Pacific Ry. Co., 41 Mont. 480, 110 P. 226.

In the Fulton case, supra, 98 Mont. at page 67, 37 P.2d at page 1031, this court made the following statement regarding conduct amounting to contributory negligence : 'The very essence of contributory negligence is a want of ordinary care on the part of the plaintiff which is a proximate cause, an occasion, of the injury; not only must the negligence of one injured by the culpable negligence of another contribute to the injury, but it must contribute as a proximate cause, not as a remote cause. * * *

'* * * Did he, or did he not, in the circumstances, act as would an ordinary prudent man? This question, with that of proximate cause and, consequently, contributory negligence, is ordinarily for the jury.' Emphasis supplied.

In McCulloch v. Horton, 105 Mont. 531, 546, 74 P.2d 1, 6, 114 A.L.R. 823, this court quoted approvingly from 1 Thompson's Commentaries on the Law of Negligence, Sec. 170, wherein it was said: "* * * if the negligence of the person killed or injured was the remote or far-off cause of the catastrophe, and that of the defendant was the proximate or near cause of it, the law permits the plaintiff to recover damages; and yet in such a case it cannot be said that the negligence of the person killed or injured did not, in some degree, contribute to produce the death or injury."

The court then referring to the instruction proposed in that case said: 'It should be remembered that the proposed...