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 L HASH, Administrator of the Estate of Thomas 

A Mallory, deceased, Plaintiff and Appellant, 

-vsJAMES LLOYD CLOUD, 

Defendant and Respondent. 

Appeal from: District Court of the Eleventh Judicial District, 

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 7 1975 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a judgment entered in the district 

court, Flathead County, on a jury verdict and an order denying 

a motion for a new trial. Plaintiffs Clayton M. Mallory and 

Jeanne M. Mallory, instituted action to recover 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 in favor of defendant. 

Plaintiffs moved for a new trial but the court denied the motion 

on the ground that the hearing on the motion was not timely, pursuant to Rule 59 (b) , M.R.Civ .P. 

However, in its order denying the motion for a new trial 

because of lapse of time, the trial court acknowledged that substantial error may have been committed by the court by not instructing the jury on gross negligence and the defenses available 

under the facts. The trial judge was correct. 

The facts are not in dispute. On August 21, 1972, at 

approximately 11:30 p.m., a collision occurred on the Big Mountain 

Road in Flathead County, between a motorcycle driven upgrade by 

Thomas A. Mallory and a vehicle driven downgrade by James Lloyd 

Cloud. As a result of that collision, Thomas Mallory died. 

Prior to the accident, approximately one-quarter mile 

from the scene of the accident, defendant pulled into a turnoff 

to admire the view of the valley. 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 his vehicle 

lights just before impact with the motorcycle and states he saw 

an image, but was unable to avoid colliding with it. Only after 
the 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 at the time of impact, and there was no 

inarked center line on the road. At the time of impact defendant's car was in the 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 

tiza t 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 is not a 

bar to plaintiff '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 to another will probably result, or with a wanton and reckless disregard of 

the possible results. An intent to injure is not 

a necessary element of reckless and wanton misconduct. 

"To prove such misconduct, it is not necessary to 

establish that the defendant himself recognized 

his conduct as dangerous. It is sufficient if it 

he established that a reasonable man under the same 

or similar circumstances would be awzre of the 

dangerous character of such conduct." 

After the jury retired, and during its deliberations, 

inquiry was made of the court as to whether there could be more 

than one proximate cause of an accident. The court then submitted 

additional instructions to the jury with respect to proximate 

cause and refused plaintiffs the right to present further oral 

argument after the giving of the additional instructions. The 

jury returned a verdict in favor 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. 

Plaintiffs correctly argue that the universally accepted 

rule and the rule in Montana 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., 85 Mont. 604, 281 P. 540. 

Plaintiffs further argue, and we agree, that this Court 

has repeatedly held negligence or any breach of duty is for the 

trial court to decide only if the evidence is undisputed and 

only susceptible to but 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, in certain circumstances, that driving 

on the wrong side of the street with 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 to reach directly 

opposing conclusions as to whether defendant's conduct amounted 

to willful and wanton misconduct. 

The district court in refusing to give plaintiffs' proposed instruction No. 2, in effect, incorrectly ruled that as a 

lnatter of law there was no factual question whether or not defendant 
VI~; willfully and wantoi~ly negligent. 'The Jistrict zourt 

erred in refusing to give plaintiffs' proposed instruction No. 2. 

The matter of additional instructions after the jury has 

retired for deliberation should not arise in a new trial. 

The judgment of the trial court is reversed and the 

cadse is remanded for a new trial. 

Justice 

We concur. 

. I a. 

---- - # ---L--%-r-*--A--L-d,--'%&d-bChief Justice 
Mr. Justice Wesley Castles dissenting: 

I dissent. Here two vehicles one a motorcycle the other 

a Volkswagen, driving a narrow mountain road without lights in 

the moonlight,collide. Such conduct on the part of both drivers 

was ill advised; but, hardly, with respect to each other was it 

reckless or wanton conduct. It may well have been gross negligence 

with respect to another driver with his headlights on, but here 

both drivers were equally at fault. In other words, if the 

defendant Cloud is to be charged with gross negligence or reckless 

and wanton conduct for his failure to have headlights in operation, 

then the plaintiffs' decedent Mallory is equally guilty of the 

same kind of conduct. Thus, I believe the district court was 

correct in refusing to instruct on willful and wanton conduct. 

I would affirm the judgment for defendant. 

Justice. A