No. 84-504 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

TAMELA BUCK, ALICE KEYS, KELLY KEYS, JOHN 

A. BUCK and DOROTHY J. BUCK, Individually 

and as personal representatives of the estate 

of ELIZABETH RUTH BUCK, deceased, 

Plaintiffs and Appellants, 

STATE OF MONTANA, a body politic 

and MADISON COUNTY, a political 

subdivision of the State of Montana, 

Defendants and Respondents 

APPEAL FROM: District Court of the Fifth Judicial District 

of the State of Montana, In and For the 

County of Madison, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Corette, Smith, Pohlman & Allen; Dolphy Pohlman, 

Butte, Montana, Argued 

Hash, Jellison, O'Brien & Bartlett; James C. Bartlett, 

Kalispell, Montana, Argued 

For R.espondent : 

John H. Maynard and Daniel Hoven, Argued for 

The State of Montana 

Harrison, Loendorf & Poston; James T. Harrison, Jr. 

Helena, Montana, Argued for Madison County 

Submitted: May 15, 1986 

Decided: August 4, 1986 

Filed: 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is an appeal by each of the plaintiffs above named 

from a judgment entered against them and in favor of the 

State of Montana and the County of Madison after jury trial 

in the District Court, Fifth Judicial District, Madison 

County. 

On August 30, 1980, at approximately 2: 15 o'clock a.m., 

Tamela Buck, Alice Keys, Kelly Keys and Elizabeth Ruth Buck 

were traveling in a 1973 Volkswagon from Whitehall to their 

home on the South Boulder River in Madison County, Montana. 

A single car accident occurred at that time approximately one 

mile southeast of Cardwell on Highway 359 in Madison County. 

The driver, Kelly Keys, was injured as were two passengers, 

Alice Keys and Tamela Buck. A third passenger, Elizabeth 

Ruth Buck, died from injuries received from the accident. 

Kelly Keys, Alice Keys, and Tamela Buck filed separate 

actions against the State of Montana. Later the three 

plaintiffs filed a consolidated amended complaint naming the 

State of Montana and the County of Madison as defendants. 

In 1983 John A. Buck and Dorothy J. Buck, individually 

as parents and as personal representatives of the estate of 

Elizabeth Ruth Buck, deceased, filed a complaint against the 

State of Montana, and County of Madison. By later 

stipulation, all of the plaintiffs' cases were consolidated 

for trial in Virginia City, Montana. 

Highway 359 was a secondary highway owned by the State 

of Montana on the date of the accident. The section of 

highway where the accident occurred ,was subject to a 
maintenance agreement between the State of Montana and 

Madison County. 

The principal issue of fact in this case was what caused 

the accident. The plaintiffs each contended that the section 

of roadway where the accident occurred was curved and that 

there was no curve sign or other warning of the upcoming 

curve presented to the driver of the Volkswagon. They 

contend that instead of following the curve, because of the 

lack of warning, the driver drove in a straight direction off 

the left side of the highway, corrected to get back on the 

highway surface and then the Volkswagon collided. with a 

wooden railing bridge. A shaft or timber from the wooden 

bridge came through the Volkswagon, pinning the passengers in 

the rear seat, and apparently causing the death of Elizabeth 

Ruth Buck. The plaintiffs attack tge construction of the 

bridge as unsafe. 

The plaintiffs contended that the State of Montana had a 

legal duty to design and construct Highway 359 in a 

reasonably safe condition for motorists and that it failed 

such legal duty; that the County of Madison had the legal 

obligation to maintain Highway 359 in a reasonably safe 

condition at the time of the accident and it failed its 

contractual duty; and that these factors were a proximate 

cause of the injuries suffered by the four persons in the 

Volkswagon. 

The State and County contended that there was no breach 

of legal duty in the design or construction; that they 

maintained the highway in a reasonably safe condition at the 

time; that the driver of the vehicle Kelly Keys had a 

statutory duty to drive upon the right side of the roadway 

and not to drive while under the influence of alcohol; that 
the driver failed to keep a lookout and that her breaches of 

statutory and common law duties were the sole proximate cause 

of the accident from which the injuries to all plaintiffs 

arose. The State and County further contended that the 

passengers other than the driver had a duty to protect 

themselves from unreasonable risk of harm and that by 

occupying the vehicle with a driver known to them to have 

been drinking they breached that duty, were contributorily 

negligent, and proximately caused their own injuries. 

The evidence adduced by the plaintiffs indicated on the 

evening before the accident they had gone into Whitehall to a 

bar at the Borden Hotel to join friends already present. It 

was Saturday evening of a Labor Day weekend. The parties had 

some beers and danced. About 1 a.m. Kelly Keys and Alice 

Buck went to an adjoining restaurant to eat a hamburger and 

drink coffee. As the bar closed they purchased a six pack of 

beer to take home. Kelly had stopped drinking, and had 

consumed in all 2% bottles of beer. They left the bar at 

about 2 a.m. and proceeded to the place were the accident 

occurred. 

The accident site had been designed and constructed in 

1957 by the State of Montana. The roadway in that section 

proceeds directly east for about a half a mile before 

entering a sharp right hand curve at the end of the 

straightaway. Half way through the right hand curve was a 

wooden bridge with wooden railings on each side. A "curve 

sign" had been designed for the curve and had at one time 

been placed at that location, but on the night of the 

accident the warning curve sign was missing. 

At the curve, the Volkswagon went straight ahead, 

crossed the center line and smashed into the left bridge 
abutment. After the impact, Kelly was injured but able to 

get out of the vehicle and find help from a neighboring 

family. Alice and Tamela were both injured and had to be 

removed by Allen Pochelon. All were taken to the St. James 

Community Hospital in Butte from the Pochelon residence. 

Eliza.beth Ruth Buck died while in the vehicle and her body 

was removed and taken to the mortuary at Ennis, Montana. 

The State contended this accident was a result of the 

drinking by Kelly Keys, the driver. The State and County 

contended that the evidence showed that Kelly Keys lost 

control of the automobile, drifted across the middle of the 

road to the left hand side and went off the paved surface of 

the road 105 feet 11 inches before the final resting place of 

the vehicle. The highway investigating officer testified 

that no evasive action was taken until immediately prior to 

the impact. At one time the automobile was off the paved 

surface and on the gravel shoulder so that its right rear 

wheel was away from the paved road a distance of four feet 

six inches. 

The nurse who accompanied the ambulance testified that 

Kelly Keys was under the influence of alcohol; she testified 

that Kelly Keys interfered with the performance of her duties 

and needed restraining. A blood alcohol test was taken in 

the hospital at 6 a.m. of Kelly Keys. It showed a .07 blood 

alcohol content at the time. Dr. Kenneth H. Mueller 

testified that for such a blood alcohol content to exist at 6 

a.m., following the accident, "her blood alcohol would have 

to have been .11 to .15" at 2 a.m. He testified that Kelly 

Keys must have consumed six, perhaps as high as ten drinks. 

He said it was impossible to have a .07 blood alcohol result 

from 2% bottles of beer 3% hours before the blood test. 
Contrary evidence on the intoxication of Kelly Keys was 

had from John Buck, the father of Elizabeth Ruth Buck, who 

talked to Kelly Keys at the hotel in Whitehall just before 

she left to drive the Volkswagon. From his close 

observation, she did not appear intoxicated to him. Mr. Buck 

later drove his automobile down the same roadway, and 

testified that there was no warning curve sign along the 

road's edge and that he himself had nearly run off the road 

before he realized he was approaching a curve. 

Other contra evidence on intoxication came from Allen 

and Debbie Pochelon. They occupied a house a distance from 

the site of the accident. Following the impact, Kelly Keys 

got out of her automobile, and went back on the highway 

towards the Pochelon residence. There she banged on the 

door, and both Allen and Debbie observed Kelly Keys, her head 

covered with blood, hysterical, but in their opinion there 

was no indication of any intoxication or drinking. Kelly 

Keys remained at the house until the ambulance came. The 

other two passengers also came to the Pochelon residence. 

The Pochelons saw no evidence of drinking in the other two 

passengers. 

Issues of fact were submitted to the jury on a special 

verdict devised by the District Court. In the first two 

issues, the jury determined that the State of Montana was 

negligent, but that its negligence was not a proximate cause 

of the accident. In issues 3 and 4, it also found that 

Madison County was negligent, but that its negligence was not 

a proximate cause of the accident. Under the form of the 

verdict as submitted, they having so answered the questions, 

none of the other issues of fact was decided by the jury, 

whose foreman signed the verdict form which was returned to 
the Court. On the basis of the special verdict, the District 

Court entered judgment in favor of the State and of the 

County. 

Assignments of error raised by the appellants include 

instructional error in refusing to instruct on concurrent 

cause; and evidentiary error in refusing to allow evidence of 

subsequent improvements to Highway 359; excluding the opinion 

of a witness as to the effect on the driver of the missing 

curve sign; and admitting evidence that the driver was not 

wearing a seat belt. It is also contended by appellants that 

the court erred in instructing the jury that it was unlawful 

for a person to drive a motor vehicle while under the 

influence of alcohol. 

INSTRUCTIONS 

The principal problem in this case lies in instructions 

given and not given to the jury by the District Court. 

Here we have a case of an injured driver suing the State 

and the County for injuries that she claims were brought 

about by the negligence of the State and the County. Her 

case was consolidated for trial with the separate actions of 

three passengers in her automobile who also sued the State 

and the County for their claimed negligently caused injuries. 

The rules that permit recovery by an injured driver from 

negligent actors are different from those applying to 

non-drivers in the same automobile who seek damages from the 

same negligent actors. The instructions as given do not set 

forth those differences. 

Although the State is not an insurer of one who uses the 

highways, State ex rel. Bjord v. District Court (1977), 175 

Mont. 63, 67, 572 P.2d 201, 203, it is under a duty to keep 
its highways in a reasonably safe condition for the ordinary 

use thereof. 

The State's duty extends to the paved portion of the 

roadway, and to the shoulders and the adjacent parts thereof, 

including guard rails, or bridge abutments, Cech v. State 

(1979), 184 Mont. 522, 604 P.2d 97, as it is common 

experience that vehicles may stray or swerve from the usual 

traveled portion thereof. 39 Am.Jur.2d 886 Highways, 

Streets, and Bridges § 488. 

It is the further duty of the State to construct and 

maintain its highways so that no latent nor hidden defect or 

trap thereon constitutes an unreasonable danger to persons 

and vehicles, including those portions of the highway where 

it may reasonably be foreseen that vehicles might traverse 

though off the paved portion of the highway. 39 Am. Jur. 2d 

887 Highways, Streets, and Bridges § 489. 

These duties apply whether the defect occurs in the 

original construction, or later through repair, 

reconstruction, resurfacing or maintenance. Beeman v. State 

(1968), 29 A.D.2d 1040, 289 N.Y.S.2d 263. 

When defects are present the State's duty to cure or 

remove the same, or give warning thereof begins when it has 

notice of the same and opportunity to act. Cameron v. State 

of California (Cal. 1972), 497 P.2d 777; Parfait v. State 

Department of Highways (Louisiana 1976), 334 So.2d 549. 

The duty of the County in this case, under its 

maintenance contract with the State, was so to maintain the 

highway as to reasonably protect the traveling public, 

including the maintenance and upkeep of highway warning 

signs. The County had no duty with respect to the original 

construction and design of the highway. 
The pertinent duties of the driver Kelly Keys in this 

case included the duty to keep a lookout, to keep her 

automobile under control, and to operate the same at a 

reasonable speed under the circumstances. She had a further 

duty not to drive her vehicle if she were under the influence 

of alcohol. 

Different rules from those of the driver govern the 

passengers in this case. The negligence, if any of Kelly 

Keys in driving the Volkswagon, cannot be imputed to the 

passengers in the car. The negligence of Kelly Keys in 

driving and operating the automobile would be no bar to 

recovery by the passengers from the State and the County if 

the State and County proximately caused the injuries to the 

passengers. The default of a driver in disobeying statutory 

provisions regarding the operation of the automobile cannot 

by imputation be made the default of a passenger. Kudrna v. 

Comet Corporation (1977), 175 Mont. 29, 572 P.2d 183; 

Hernandez v. Chicago Burlington and Quincy Railway Company 

(1965), 144 Mont. 585, 398 P.2d 953; Wolf v. Barry O'Leary 

Inc. (1957), 132 Mont. 468, 318 P.2d 582. 

If however a passenger agrees to ride in an automobile 

with a person he feels to be intoxicated and an unsafe 

driver, the passenger then assumes the risk, under our law a 

form of comparative negligence, and if the County and the 

State were also negligent, the case of the passenger would 

call for comparison and apportionment of the damages. 

Johnson v. United States (U.S.D.C. Mont. 1980), 496 F.Supp. 

597, affd. 704 F.2d 1431. 
Having the foregoing principles in mind, we append in 

the footnote below all of the instructions given by the court 

in this case on negligence. It will be seen that the 

1 Instructions relating to negligence issues given by the 

Court follow: 

INSTRUCTION NO. - 2 

The instructions of the Court apply to all parties to 

the litigation unless otherwise specifically stated in the 

particular instruction. 

INSTRUCTION NO. - 9 

You are instructed that the "proximate cause" of an 

injury is that cause which in the natural and continuous 

sequence, unbroken by any new and independent cause, produces 

the injury, and without which it would not have occurred. 

There may be more than one cause of an injury. 

INSTRUCTION NO. - 10 

You are instructed that the State of Montana has a duty 

to construct and maintain its highways in a reasonable, safe 

condition for public use; however, this does not make the 

State an insurer of the highways. 

This duty of the State to construct and maintain 

roadways is subject to realistic, viable, and 

state-of-the-art limitations. 

INSTRUCTION NO. - 11 

The State is not required to undertake reconstruction of 

a highway simply because standards for highway construction 

have changed since the highway was originally constructed. 

INSTRUCTION NO. - 12 

You are instructed that the County of Madison had a duty 

to reasonably maintain Highway 359 on the date of the 

accident and before. 

INSTRUCTION NO. - 13 

You are instructed that Madison County has no 

responsibility for the original design or construction of the 

road or bridge involved in this matter. 

INSTRUCTION NO. - 14 

You are instructed that it is unlawful for any person 

who is under the influence of alcohol to drive or be in 

actual physical control of a motor vehicle upon the highways 

of this State. 
instructions contain no proper mention of comparative 

negligence, concurrent cause, or in the case of the 

passengers, imputed negligence. 

INSTRUCTION NO. - 15 

Whether a person involved in an accident was then 

intoxicated or under the influence of intoxicating liquor is 

a question for the jury to consider in determining whether he 

was negligent. In making this determination, the question to 

be answered is whether as a result of drinking intoxicating 

liquor the individual's physical or mental abilities were 

impaired so that he was unable to conduct himself with the 

caution of a sober person of ordinary prudence under the same 

or similar circumstances. 

One is not necessarily intoxicated or under the 

influence of intoxicating liquor as a result of taking one or 

more drinks. The circumstances and the effect must be 

considered. 

Intoxication is no excuse for failure to act as a 

reasonably prudent person would act. A person who is 

intoxicated or under the influence of intoxicating liquor is 

held to the same standard of care as a sober person. 

INSTRUCTION NO. 15B 

You are instructed that if a reasonably prudent person 

would not be able to detect a driver's intoxicated state, 

then that person cannot be denied recovery against the 

Defendants on the basis of contributory negligence. 

INSTRUCTION NO. - 16 

Every person operating ar driving a vehicle of any 

character on a public highway of this state shall shall drive 

the same in a careful and prudent manner, and at a rate of 

speed no greater than is reasonable and proper under 

conditions existing at the point of operation, taking into 

account the amount and character of traffic, condition of 

brakes, weight of vehicle, grade and width of highway, 

weather conditions, including the condition of the roadway 

surface, and freedom from obstruction of the view ahead, so 

as not to unduly or unreasonably endanger the life, limb, 

property, or other rights of any person entitled to the use 

of the street or highway. 

INSTRUCTION NO. - 17 

The driver of a motor vehicle is presumed to see that 

which he could see by looking. He will not be permitted to 

say that he did not see what he must have seen had he looked. 

The duty to keep a lookout includes a duty to see that which 

is in plain sight. 
(Because all of the offered instructions in this case 

related to proximate cause, we Leave aside from this 

discussion whether the jury should have been instructed on 

INSTRUCTION NO. - 18 

Violation of a statute enacted for the safety of the 

public is negligence. However a violation of law is of no 

consequence unless it was a proximate cause of the injuries 

sustained. 

INSTRUCTION NO. - 19 

You are instructed that Montana law requires as follows: 

Upon all roadways of sufficient width a vehicle shall be 

driven upon the right half of the roadway. 

INSTRUCTION NO. - 20 

Negligence is the doing of something which a reasonably 

prudent person would not do, or the failure to do something 

which a reasonably prudent person would do, under 

circumstances similar to those shown by the evidence. 

It is the failure to use ordinary or reasonable care. 

Ordinary or reasonable care is that care which persons 

of ordinary prudence would use in order to avoid injury to 

themselves or others under circumstances similar to those 

shown by the evidence. 

INSTRUCTION NO. - 21 

You are instructed that if you find that either of the 

defendants were negligent, before either of the defendants 

can be held liable for the plaintiffs' damages, you must find 

that defendants1 negligence was a proximate cause of the 

plaintiffs1 injuries and resulting damages. 

INSTRUCTION NO. - 22 

You are instructed that if you find negligence to have 

been present on the part of either or both Defendants, this 

test to determine if it was a proximate cause is to be 

applied: Did the wrongful act, in a natural continuous 

sequence of events, which might reasonably be expected to 

follow, produce the injury? If so, it is a concurring 

proximate cause of the accident even though the later 

negligent act of another cooperated to cause it. 

On the other hand, if the later act of negligence in 

causing the accident was of such a character as not 

reasonably to be expected to happen in the natural sequence 

of events, then such later act of negligence is the 

independent, intervening cause and therefore the sole 

proximate cause of the injury. 
the basis of legal cause rather than proximate cause. For a 

discussion of legal cause and its application to this type of 

case, see Rudeck v. Wright (Mont. 1985), 709 P.2d 621, 628, 

42 St.Rep. 1380, 1388; and Streich v. Hilton-Davis (Mont. 

1984), 692 P.2d 440, 450, 41 St.Rep. 2310, 2322 (Morrison, J, 

concurring.) 

Instruction No. 22, given by the court in this case (fn. 

1 at P. 11) speaks of concurring proximate cause. 

Undoubtedly the jury followed this instruction, because 

although it found both the State and the County negligent, it 

determined that such negligence was not a proximate cause of 

the injuries here. Court's Instruction No. 22 comes from 

Halsey v. Uithof (1975), 166 Mont. 319, 327, 532 P.2d 686, 

690, as repeated in Giles v. Flint Valley Forest Products 

(1979), 179 Mont. 382, 389, 588 P.2d 535, 539. Instruction 

No. 22 in this case is defective because it doesn't take into 

account that the negligence of the State and the County in 

this case, if it existed, was a continuing state of 

INSTRUCTION NO. 2 2A 

The negligence of a deceased plaintiff is attributable 

to the parents of the deceased. 

INSTRUCTION NO. 23 

Although there are two defendants in this action, it 

does not follow that if one is liable, both are liable. Each 

defendant is entitled to a fair consideration of his own 

defenses and is not to be prejudiced by any finding that you 

may make against the other. Except as otherwise indicated, 

all instructions given to you govern the case as to each 

defendant. 

INSTRUCTION NO. - 24 

You are instructed that you are not to consider any 

testimony with respect to seat belts in your deliberation of 

this of this case (sic). The failure to use seat belts is 

not a proper defense under the laws of the State of Montana. 
negligence which did not end at the moment that the 

Volkswagon veered from the paved roadway. In this case, the 

negligent conduct of the State and the County, as found by 

the jury, necessarily created or increased a foreseeable risk 

of harm through the intervention of another force, by failing 

to maintain a curve sign on the roadway, and by maintaining a 

dangerously unprotected wooden bridge. As the Federal 

District Court stated in Deeds v. U.S. (U.S.D.C. Mont. 1969), 

306 F.Supp. 348, where the negligent conduct of an actor 

creates or his action increases the risk of particular harm 

and is a substantial factor in causing that harm, the fact 

that the harm was brought about through the intervention of 

another force does not relieve the actor of liability except 

where the harm is intentionally caused by the third person 

and is not within the scope of the risk created by the 

actor's conduct. Court's Instruction No. 22 improperly 

allowed the jury to determine that the driving of the vehicle 

by Kelly Keys was the sole proximate cause of the injuries 

received by her and her fellow passengers without giving 

consideration to the continuing nature of the negligence of 

the County and the State to and through the time of the 

accident. If the jury found that the curve sign was missing, 

or that the bridge was improperly protected, or both, it is 

idle to argue that direct injuries resulting from such 

conduct is not foreseeable, or "not reasonably to be expected 

to happen in a natural sequence of events." Otherwise there 

would be no necessity for curve signs or for bridge 

protection. 

For that reason alone, we must reverse this case. There 

are however other factors in the instructions that deserve 

comment. 
Since 1975, it has been the law in this State that 

contributory negligence does not bar recovery in an action by 

any person or his legal representative to recover damages for 

negligence resulting in death or injury to person or property 

if the contributory negligence was not greater than the 

negligence of the person against whom recovery is sought. In 

such case the damages are diminished in proportion to the 

amount of negligence attributable to the person recovering. 

Section 27-1-702, MCA. 

Under that statute, it is the duty of the trial court, 

where there is evidence supporting the negligent acts of both 

the plaintiff and the defendant to instruct the jury on 

comparative negligence. This is because a party is entitled 

to instructions adaptable to his theory of the case, Meinecke 

v. Skaggs (1949), 123 Mont. 308, 213 P.2d 237, and "trial by 

jury" requires that all material issues of the fact be 

submitted to and determined by the jury. Dasinger v. 

Andersen (1959), 136 Mont. 277, 347 P.2d 747. 

In like manner, the jury should have been instructed 

that the negligence of the driver in this case, if any, was 

not to be imputed to the passengers riding with her. 

Further, if sufficient evidence existed in the record to show 

that in the exercise of ordinary care the passengers should 

not have entered the automobile because of the intoxication 

of the driver, the jury should be so instructed as a separate 

issue of negligence involving the passengers. Once again, if 

the jury were to find the passengers negligent in that 

manner, such negligence would again have to be compared with 

the negligence of the defendant State and County. 

RULINGS - ON EVIDENCE 
The bridge on which this accident occurred was 

constructed in 1957. Its width was no wider than the paved 

surface of the roadway approaching it. The sides of the 

bridgework were constructed of wood railings attached to 

wooden uprights. The railings ran the length of the bridge. 

The stringers or railings consisted of two 2x10s or 2x8s 

bolted together and bolted to the uprights. Thus the butt 

end of the stringers presented an area of 4x8 inches or 4x10 

inches. It was the butt end of one of these stringers that 

entered the Volkswagon automobile into and over the backseat 

of the Volkswagon. There were no guard rails guarding the 

approach to the bridge itself. 

Sometime after the date of the accident on August 30, 

1980, and while this litigation was going on, the State of 

Montana improved the approach to the bridge and the bridge 

itself by placing steel approach guard rails and a steel 

bridge railing across the bridge. The briefs of the 

defendants indicate the highway reconstruction took place in 

1981, several months after the accident in question. It is 

also stated in the State's briefs that the reconstruction was 

planned prior to the accident and not in response to the 

accident nor to any other accident. The State made a motion 

- in limine that the Court hold inadmissible any evidence or 

offered evidence relating to the subsequent improvement 

project on the highway. 

The Court granted the motion in - limine, subject to the 

reservation that the evidence "might be admissible for 

impeachment purposes." 

Rule 407, Montana Rules of Evidence provides: 

When, after an event, measures are taken which, if 

taken previously, would have made the event less 

likely to occur, evidence of the subsequent 
measures is not admissible to prove negligence or 

culpable conduct in connection with the event. 

This rule does not require the exclusion of 

evidence of subsequent measures when offered for 

another purpose, such as proving ownership, 

control, or feasibility of precautionary measures, 

if converted, or impeachment. 

The plaintiffs called David Johnson, a highway 

department engineer to the stand, who testified that prior to 

August 30, 1980, it would have been feasible to use "W"-beam 

steel rail for bridge railing and approach guardrail. 

Thereafter the following colloquy occurred: 

Q. But at the time of this accident on August 30, 

1980, there was no such steel guardrail used either 

across the bridge or at the entrances to the bridge 

on the north or the south, isn't that correct? 

A. At the time of the accident? 

Q. At the time of the accident. A. Yes. Yes, 

that's correct. 

Q. Prior to the accident, and I know you've 

reviewed a lot of records and a lot of plans, prior 

to the accident, did the State of Montana ever plan 

to change the guardrail and use approach guard rail 

of the steel type on this particular bridge on 359? 

An objection was made to the question, conference was 

held in the chambers of the Court, where plaintiffs' counsel 

made an offer of proof that Johnson would answer the question 

in the affirmative and thereafter counsel would ask Johnson 

why the planned improvements had not been made prior to the 

accident, to which counsel did not know the answer. 

The Court ruled that the question violated the motion - in 

limine and overruled the offer of proof. 

Johnson had already testified that improving the bridge 

and its approach by the use of W-beam steel railings was 

feasible, so the Court was correct in refusing the offer of 

proof and denying the question on that point. However, the 

question went to two other issues of fact important in this 
case, that is, notice of hazardous condition, if it was 

hazardous, and time and opportunity to act. The Court erred 

in denying the offer of proof and in not permitting the 

witness to answer the proposed question on those grounds. 

Such issues were an integral part of the plaintiffsf cases 

they should have been allowed to pursue the knowledge and 

opportunity of the state with respect to the condition, if it 

was a hazardous condition, of the bridge. Again the Court 

committed reversible error. 

There are further reasons that were not raised by 

counsel that the evidence should have been permitted. 

Plaintiffsf expert engineer later testified that the use of 

W-beam steel railings was recommended in a document entitled 

"Highway Design and Operational Practices Related to Highway 

Safety, Second Edition, 1974." promulgated by the American 

Society of State Highway Officials. Defense counsel on cross 

examination of Lee elicited that a part of the text of the 

document stated "it is basically intended that the concepts 

included, seasoned with proper judgment should be applied 

after date of circulation of the book to the design of all 

new construction which could be reevaluated and modified as 

necessary without unreasonable rework or design effort." 

On further cross - examination of Lee, the following 

occurred: 

Q. Do you know if that special report has been 

adopted by any organization for application on any 

highway system in the United States of America. 

A. I sure do not. 

Q. Do you know specifically, I take it, from that 

you know you don't know whether it's been adopted 

for any highway system in the State of Montana? 

A. That's right. 

Thus the jury was given the impression, although it may 

not have been true in this case, that the state had not 
adopted the steel guardrail standards when in fact they may 

have been in the plans then existing for reworking Highway 

359. 

Other evidentiary issues raised by appellants have been 

reviewed by us and we find no error with respect to the same. 

It is unnecessary to burden this opinion with their 

recitation. 

The judgment as to each plaintiff is reversed and 

remanded for a new trial or trials. 

1. i i' . , .I 

Justice 

We Concur: ,,/ 

Chief Justice 

Mr. Justice L. C. Gulbrandson: 

I concur in the result but not in all tpt is said In the 

majority opinion. , I 

/ 

i fi /Ub,.-&\ 1 

Justice