VO. 52-209 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

PETAR B. DAMJANOVICH, 

Plaintiff and Appellant, 

WESTERN FIRE INSURANCE CO&'lPANY, 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial. District, 

In and for the County of Yellowstone 

Honorable William J. Speare, ,Tudae presidinu 

Counsel of Record. 

For Appellant: 

Lee Overfelt arqued, Billings, Montana 

Stephens and Cole, Billinus, Montana 

For Respondent : 

Anderson, Brown, Gerbase, Cebull & Jones, Billinqs, Plontana 

Steve Harman argued, Billinqs, Montana 

Submitted: March 24, 1983 

Decided: June 30, 1983 

JUN 3 0 ~~dd 

~iled: 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Petar B. Damjanovich was involved in a collision with a 

parked car. Because the owner of the parked car was 

uninsured, Damjanovich brought suit against his insurance 

company to recover uninsured motorist benefits under his 

insurance policy. A jury in the Thirteenth Judicial 

District, Yellowstone County, found that Damjanovich's 

negligence was greater than that of the owner of the parked 

vehicle. The District Court entered judgment for the 

defendant insurance company based on the jury verdict. 

Damjanovich appeals. We reverse and remand for a new trial. 

On October 4, 1978, Jack Light was traveling eastbound 

on 1-94, a part of the interstate system, toward Ballentine, 

Montana, in his 1974 Ford Galaxy. Between 5:15 and 5:30 

p.m., his car suddenly stopped running and he coasted to the 

right side of the highway. Light left the car, then returned 

with a mechanic who determined the problem to be bad points. 

They decided to leave the vehicle parked on the highway 

overnight with plans to return the next day to repair the 

car. The interstate highway in this case is one composed of 

two paved strips, one each for eastbound and westbound 

traffic separated by a medium strip. Each westbound and 

eastbound strip is divided into two main lanes for traffic. 

On the righthand side of one's direction of travel, a parking 

or emergency lane is also provided, separated from the right 

driving lane by a solid painted line. 

Damjanovich was driving his automobile eastbound on the 

interstate highway at approximately 3:00 a.m. on October 5, 

1978, when his car collided with the parked Light vehicle. 
There are several disputes in the evidence. The 

defendant claimed that the Light vehicle was parked entirely 

within the emergency lane on the righthand side of the 

highway. Damjanovich claims that a portion of the Light 

vehicle protruded into the main traveled portion of the 

traffic lane in which he was driving eastbound. Damjanovich 

testified that as he approached the parked vehicle, which he 

did not see, he was blinded by oncoming lights and thus 

drifted into the emergency lane where the collision with the 

parked vehicle occurred. There was dispute in the evidence 

as to whether he had claimed such events following the 

accident. It appears uncontradicted in the evidence that the 

parked vehicle had been left unlighted and without warnings 

posted around it of its presence in the emergency lane. 

At trial, the District Court instructed the jury in 

effect that it is negligence as a matter of law under Montana 

statutes to drive a motor vehicle in the emergency lane. 

Damjanovich contended that such an instruction should be 

tempered with an instruction on the emergency rule. The 

issue presented to this Court by Damjanovich is whether the 

District Court erred in instructing the jury on negligence 

per se without also instructing it on the doctrine of sudden 

emergency. 

With respect to the operation of his car by Damjanovich, 

the court gave the jury the following instructions: 

INSTRUCTION NO. 16 

"You are instructed that interstate highway no. 94 

is a controlled-access highway. A statute in the 

State of Montana, section 61-8-331 (2) (a) and (c) , MCA, states, in pertinent part, as follows: 

'I' (2) On any controlled access highway or 

facility, it is unlawful for any person to: 
" "I (a) drive a vehicle over, upon or across any 

curb, central dividing section, or other separation 

or dividing lines; 

"I" (c) drive any vehicle except in the proper 

lane, in the proper direction, and to the right of 

the central dividing curb, separation, section or 

line; I' ' 

INSTRUCTION NO. 17 

"If you find from the evidence that the plaintiff, 

Petar Damjanovich conducted himself in violation of 

the law just read to you, you are instructed that 

such conduct was negligence as a matter of law. 

"However, in this action, a violation of law is of 

no consequence unless it was a proximate cause of 

an injury found by you to be suffered by the 

plaintiff." 

Counsel for Damjanovich objected to instructions no. 16 

and 17 upon the grounds that they imposed an absolute duty 

upon all operators of motor vehicles on limited access 

highways to stay strictly within their lanes of travel and 

that in the absence of a sudden peril instruction it was 

tantamount to a direct instruction to the jury to find Petar 

Damjanovich guilty of negligence. In connection with his 

objection to instruction no. 16 and Damjanovich's counsel 

offered instructions respecting sudden emergency, all of 

which were by the court denied. 

Damjanovich's argument on appeal is that the lights of 

an oncoming car blinded him and placed him in peril and that 

he so testified. Therefore, he contends he was entitled to 

sudden peril instructions which would mitigate the mandatory 

effect of instructions 16 and 17. 

The defendant insurance company on the other hand 

contends that under Eslinger v. Ringsby Truck Lines, Inc. 

(1981) , Mont . , 636 P.2d 254, 38 St.Rep. 1863, 

Damjanovich was not entitled to the sudden emergency 
instructions because the evidence was not sufficient to 

support a finding that the claimed emergency actually or 

apparently existed. The defendant contends that it was 

questionable whether an emergency actually or apparently 

existed; that Damjanovich had no other witnesses to testify 

to the alleged emergency; that he did not mention the alleged 

emergency immediately until several days after the accident; 

and that there was no physical evidence of evasive action 

taken by Damjanovich. 

Ordinarily, it is the duty of this Court to regard the 

evidence in the District Court trial in the light most 

favorable to the prevailing party. Since, however, the 

sudden emergency issue was not submitted by instructions to 

*- the jury, we are not - -- ,,,, the * ~~l~&

b-w Lk f& 

.l -1 - J s 

We do not regard this case as one in which a sudden 

emergency instruction should have been given. Eslinger , 

supra. Rather we find that the objections of Damjanovich to 

the negligence per - se instructions applying to him should 

have been regarded by the District Court. 

Under the facts of this case, Damjanovich was driving on 

or over at least a portion of the emergency lane when his 

vehicle collided with the parked vehicle. When the jury 

applied instructions no. 16 and 17 to that fact, it was 

mandated by the District Court to find (1) such driving was 

negligent as a matter of law, and (2) such driving was a 

proximate cause of plaintiff's injuries. No room was given 

to the jury under those instructions to determine if driving 

in the emergency lane by Damjanovich was something a person 

using ordinary care in the circumstances might have been 
doing. The instructions were severely limited. If 

Damjanovich was in the emergency lane, and the collision 

resulted from that, then Damjanovich was negligent as a 

matter of law. In effect, Damjanovich was instructed out of 

court, based on the fact that the collision occurred in the 

emergency lane without any consideration given to whether a 

reasonably prudent person in the same circumstances might 

also have been driving in the emergency lane. 

This is the first occasion for this Court to consider 

the effect of a motorist driving over and into that portion 

of an interstate highway known generally as the emergency 

lane. Certainly the statute given to the jury in this case 

with respect to a motorists' duty, section 61-8-331 (2), MCA, 

is imprecise. The statute does not, by its terms, cover the 

case of a motorist entering over or upon the emergency lane 

of interstate highways in this state. The thrust of the 

statute is to forbid the crossing-over by vehicles into the 

driving lanes reserved for opposite-direction traffic. We 

hold that the language of the statutes set out in instruction 

No. 16, supra, does not apply to vehicles which may 

occasionally be driven over or into the emergency lane of an 

interstate highway. To rule otherwise would be contra to our 

common experience in the use of interstate highways. Drivers 

frequently veer to the right over and upon the emergency lane 

to avoid snow or slush being thrown by overtaking traffic; to 

avoid blocking the traffic lanes when circumstances require a 

vehicle to proceed more slowly than the normal speed of 

traffic in those lanes (see Section 61-8-321(2), MCA), or to 

bring a vehicle to a stop to stretch or change drivers. 

Surely none of these examples should be considered violations 

of Section 61-8-331, MCA and, thus, negligence as a matter of 
law. No state statute that we can find, including Section 

61-8-331, MCA, forbids the use of emergency lanes by drivers 

with specificity. 

Application of Section 61-8-331, MCA to Damjanovich, in 

this case, negates, in effect, the continuing negligence of 

Jack Light who left his unlighted car in the dark on the 

highway. Ashley v. Safeway Stores, Inc., (1935) 100 Mont. 

312, 47 P.2d 53; Section 61-9-214, MCA. 

In our view, this cause should have been submitted to 

the lury with respect to the operation of the vehicle by 

Damjanovich under the ordinary rules relating to negligence. 

A proper instruction, suitable for this case, would have 

stated in substance: 

You are instructed that a person who drives a 

motor vehicle into or upon the emergency lane of 

the interstate highway when a reasonably prudent 

person using ordinary care would not do so, is 

negligent. Conversely, if a person drives a motor 

vehicle into or upon the emergency lane of an 

interstate highway and a reasonably prudent person 

would ordinarily have done the same under the 

circumstances of the situation, then you may not 

find the person negligent because of such driving. 

Because of the instructional error, we reverse the 

District Court judgment and remand for a new trial. 

We concur: 

Justices 
iqr. Chief Justice Prank I. Haswell, dissenting: 

The majority find that Jury Instruction Nos. 16 and 17 

requlre the jury to find that Damjanovich was negligent as a 

matter of law for driving in the emergency lane and such 

driving was the proximate cause of his injuries. In effect, 

the majority conclude that Damjanovich was instructed out of 

court based on the fact that the collision occurred in the 

emergency lane without any consideration given to whether a 

reasonably prudent person in the same circumstances might 

also have been driving in the emergency lane. The majority 

conclude by holding that driving in the emergency lane is 

not unlawful; hence, reverse and remand the case for a new 

trial because the jury was instructed that such action is 

unlawful. 

I would affirm because (1) it is unlawful to drive in 

the emergency lane under the facts of this case, and (2) the 

jury was properly instructed. 

The facts of this accident must be noted to place the 

case in context. Defendant was driving in the emergency 

lane and rear-ended a parked car. 

Driving in the emergency lane is unlawful--thus, 

negligence per se. However, liability will attach only if 

such unlawful act is the proximate cause of some injury. 

Instruction No. 16 is section 61-8-331(2)(a) and (c), 

MCA. These statutory sections prescribe that on a controlled 

access highway, no driver shall cross any curb, central 

dividing section or other dividing line. It further provides 

that vehicles must be driven in the proper lane, in the 

proper direction and to the right of the central dividing 

line. Also, section 61-1-206, MCA, defines a roadway as any 
portion of a highway used for vehicular travel excluding the 

shoulder or the berm. The plain meaning of the above 

statutory sections mandates that one must drive only in the 

proper lane of travel and the emergency lane is - not the 

proper lane of travel. Damjanovich's actions were unlawful 

and the jury determined they were the proximate cause of his 

in j ur ies . 

Damjanovich's actions could be excused by the sudden 

emergency doctrine. However, the lower court refused the 

instructions. The Eslinger opinion established certain 

findings that must be made before a sudden emergency 

doctrine instruction is given. Under the facts of this 

case, these requisite findings could not be made. It is 

very questionable that an emergency actually or apparently 

existed. Appellant has no other witnesses to testify to the 

alleged emergency. The appellant's testimony is the only 

evidence of the potential disaster. Second, appellant did 

not mention the alleged emergency until several days after 

the accident. Third, there was no physical evidence of 

evasive action taken by the appellant. Finally, there was 

testimony that the appellant was aware of the parked car; 

thus, he should have anticipated it. The evidence is simply 

insufficient to support a finding that an emergency existed. 

Furthermore, the jury was properly instructed with 

respect to Damjanovich's case. First of all, the jury was 

instructed that if Damjanovich's actions were negligence per 

se, such negligence was of no consequence unless it was the 

proximate cause of some injury. The jury found the negligence and the requisite proximate cause. Second, evidence 

was presented, and the jury was instructed on possible 
statutory violations by Light and Damjanovich. The jury 

weighed the evidence, applied the law and, under the doctrine of comparative negligence, concluded that the negligence of Damjanovich was far greater than that of Light. 

This Court should not disturb that finding. 

I would, however, agree with the majority that there 

are certain situations that would require driving in the 

emergency lane and under such circumstances such action 

would not constitute negligence per se. For example, drivers 

must often swerve to the right or drive a temporarily disabled vehicle in the emergency lane to avoid traffic 

impediment. However, this case is not one of these 

emergency situations. 

For the foregoing reasons I would affirm the ju~y 

verdict and the District Court's judgment entered thereon. 

3A&8.$4$4 

Chief Justice 

Mr. Justice L. C. Gulbrandson: 

I concur in the foregoing dissent of Mr.]Chief Justice I 

Haswell. 

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