IN

### THE SUPREME COURT OF THE STATE OF MONTANA

CLAYTON 

### M MALLORY and JEANNE M 

### MALLORY, husband and wife, Plaintiffs and Appellants, 'VS' 

### JAMES LLOYD CLOUD, Defendant and Respondent, and CHARLES LHASH, Administrator of theEstate of Thomas A 

### Mallory, deceased, Plaintiff and Appellant,

### -vsJAMES 

### LLOYD CLOUD, Defendant and Respondent.
Appeal from: District 

### Court of theEleventhJudicialDistrict, Honorable Robert C. 

### Sykes, Judge presiding. Counsel of Record: For Appellants: Hash, Jellison and O'Brien, Kalispell, Montana Kenneth E 

### O'Brien argued, Kalispell, Montana For Respondent: Warden, Walterskirchen and Christiansen, Kalispell, Montana Merritt N 

### Warden argued, Kalispell, Montana

Filed: Submitted: January 21, 1975 Decided: 

### 2

## 71975Mr. Justice Gene B. Daly delivered the Opinion of theCourt. This 

### isan appeal from a judgment entered inthedistrict court, Flathead County, on a jury verdict and an order denying
a motion for a new trial. PlaintiffsClayton M. Mallory and Jeanne M. Mallory, instituted action torecover damages for the injuries and death of their son,Thomas A. Mallory, resulting from a collision that occurred between a motorcycle operated by Thomas Mallory and an automobile driven by defendant, James Lloyd Cloud. The jury returned a verdict infavor of defendant. Plaintiffsmoved for a new trialbut the court denied themotion
on the ground that the hearing on themotion was not timely, pursuant toRule 59(b)

## ,M.R.Civ .P. However, inits order denying themotion for a new trial because of lapse of time, thetrialcourt acknowledged that substantialerrormay have been committed by the court by not instructingthejury on gross negligence and the defenses available under the facts. The trialjudge was correct. The factsarenot indispute. On August 21, 1972, at approximately 11:30 p.m., a collision occurred on the Big Mountain Road inFlathead County, between a motorcycle driven upgrade by Thomas A. Mallory and a vehicledriven downgrade by James Lloyd Cloud. As a result of thatcollision, Thomas Mallory died. Prior tothe accident, approximately one-quarter mile from the scene of the accident, defendant pulled into a turnoff toadmire theview of thevalley. He turned off his vehicle lights and did not again turn them on when he began his descent down the mountain. The road was winding and contained blind curves, but defendant testified he could see ahead a considerable distance because of the bright moonlight. Defendant turned on hisvehicle lightsjust before impact with themotorcycle and stateshe saw
an image, but 

### was unable toavoid colliding with it. Only afterthe collisioa 3rd he discover the image was a motorcycle driven by Thomas Mallory. The highway patrolman testified the headlight of the niotorcycle was not on atthe time of impact, and there was no inarked centerline on theroad. Atthe timeof impact defendant'scar was inthe lefthand driving lane of the road. There were two passengers with Cloud on the night in querkion, both substantiated Cloud's account of the happenings tizat night. The trial court refused to give plaintiffs' proposed iristruction 110. 2 on reckless and wanton misconduct and the defense of contributory negligence, which reads: "Contributory negligence of the decedent isnot a bar toplaintiff's recovery for injuries and death caused by the reckless or wanton misconduct of the defendant. "Reckless or wanton misconduct is intentional, wrongful conduct, done either with knowledge that serious injury toanother 

### willprobably result, or with a wanton and reckless disregard of the possible results. An intent toinjure isnot a necessary element of reckless and wanton misconduct. "To prove such misconduct, it isnot necessary to establish that the defendant himself recognized his conduct asdangerous. It is sufficient if it he established that a reasonableman under the same or similar circumstances would be awzre of the dangerous character of such conduct." After the jury retired, and during itsdeliberations, inquiry was made of the court astowhether there could be more than one proximate cause of an accident. The court then submitted additional instructions tothejury with respect toproximate
cause and refused plaintiffs the right topresent further oral argument after the giving of the additional instructions. The jury returned a verdict infavor of defendant and against plaintiffs. Plaintiffs on appeal bring three assignments of error,(~ow~v~L, 111 VL~W 3.t 3u.~ i~ldirij, we wi1.l 

### Slscuss only the inscruction on negligence. Plaintiffscorrectly argue that the universally accepted rule and the rule inMontana is that contributory negligence of the plaintiff is no bar to plaintiff's recovery for injuries caused by the reckless and wanton misconduct of a defendant. Mihelich v. Butte Electric Ry. Co., 85Mont. 604, 281 P. 540. Plaintiffs further argue, and we agree, that thisCourt has repeatedly held negligence or any breach of duty is for the trial court todecide only if the evidence is undisputed and only susceptible tobut one conclusion by a reasonable man, and that the evidence is such that it 

### will support no other legitimate inference. If reasonable minds might draw a different conclusion from the evidence, it is a question for the jury. Suhr


### v. Sears Roebuck and Company, 152 Mont. 344, 450 P.2d 87; Dahlin


### v. Rice Truck Lines, 137 Mont. 430, 352 P.2d 801. A number of out of jurisdiction cases have been cited to this Court which do hold, incertain circumstances, that driving
on the wrong sideof the streetwith lights off amounts to wanton and willful misconduct as a matter of law; but each case must be decided on its own facts. We have reviewed the fact situation in khe instant case and the evidence presented. his Court finds chat the question of willful and wanton negligence was a question of fact and not a question of law. The arguments presented by both parties demonstrate how the facts can be construed by reasonable men toreach directly opposing conclusions astowhether defendant's conduct amounted to willful and wanton misconduct. The district court inrefusing togive plaintiffs' proposed instruction No. 2, ineffect, incorrectly ruled that as a lnatter of law there was no factual question whether or not defendantVI~; 

### willfully and wantoi~ly negligent. 'The Jistrict zourt erred inrefusing togive plaintiffs' proposed instruction No. 2. The matter of additional instructions after thejury has retired for deliberation should not arise ina new trial. The judgment of the trial court isreversed and the cadse is remanded for a new trial.

Justice We concur.



### . I a. 

# - # 

## ---- ---L--%-r-*--A--L-d,--'%&d-bChief JusticeMr. 

### JusticeWesley Castles dissenting:
I 

### dissent. Here two vehicles one a motorcycle the other
a Volkswagen, driving a narrow mountain road without lights in themoonlight,collide. Such conduct on the part of both drivers
was ill 

### advised; but, hardly, with respect toeach other was it 

### reckless orwanton conduct. It 

### may well have been gross negligence with respect to another driverwith his headlights on, but here both driverswere equally at fault. 

### In other words, if the defendant Cloud 

### is tobe charged with gross negligence or reckless and wanton conduct forhis failure tohave headlights inoperation, then the plaintiffs' decedent Mallory is equally guilty of the
same kind of conduct. Thus, I 

### believe thedistrict court was correct inrefusing to instruct on willful and wanton conduct. I 

### would affirm thejudgment for defendant.

Justice.

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