No. 12435 IN

### THE SUPREME COURT OF THE STATE OF MONTANA 1973

JOHNA. ELLIOTT, Plaintiff and Appellant,

RASMUS M. HANSEN, Defendant and Respondent.

Appeal from: District Court of the Eighteenth JudicialDistrict

## , Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellant: Morrow, Nash and Sedivy, Bozeman, Montana Edmund P. Sedivy

## ,Jr

# . argued, Bozeman, Montana For Respondent : Berg, Angel, Andriolo and Morgan, Bozeman, Montana Richard Andriolo argued, Bozeman, Montana

Submitted: December 

### 4, 1973Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This isan action for damages suffered inan automobile collision. The act ion was tried inthe district court of the eighteenthjudicial district, Gallatin County. Plaintiff, John A. Elliott appeals from the finaljudgment of the district court entered on a jury verdict in favor of defendant Rasmus M. Hansen. At approximately 8:30 a.m. on June 

### 11, 1970, automobiles drivenby the litigants herein collidednear Bozeman, Montana, atthe intersection of U.S. Highway 191and StateHighway 291, known locally as the

# o our Corners". The Four Corners intersection
was controlledby a stop sign at each of itsfour entrances; a flashing red lightwas suspended over the center of the intersection; and on the roads approaching from the south and from the east (the roads upon which Hansen and Elliott, respectively,
were traveling) flashing yellow lightswere positioned about 1,000 feet ahead of the "four way" stop signs. Weather conditions were clear on that morning and visibilitywas good. The terrain and surroundings at the Four Corners were such that from the stop sign ateither the south or east entrance therewas an unrestricted view of other approaching cars practically as far as the eye could
see. Elliott testified that prior to the accident he approached the intersection headed west, made a complete stop atthe stop sign, looked inalldirections and, seeingno cars coming or stopped atthe other stop signs, entered the intersectionand began making
a left turn. Quoting from ~lliott's testimony: 

### "Q. Was anybody stopped atany of the other four stop signs? A. No. "Q. Well, then what did you do? A. I proceeded into the intersection, and then turned left togo south toWest Yellowstone. "Q. Atanytime after you had left the stop sign, did you ever observe Mr. 

### an sen's vehicle? A. No. not until I started toturn left and looked south down the road.

### "Q. What did you see? A. 

### I saw this car coming at me.

11



### Q. This car was coming from south to north; is that correct? A. That is correct.11 

### Hansen testified that prior to the accident he approached the intersection headed north,made a complete stop at the stop sign, looked in all directions and, seeing no cars approaching
or stopped at the other stop signs, entered the intersection intending to proceed straight through and continuenorth. Quoting from

## ans sen's testimony:

II

### Q. Were there any cars in the intersectionwhen you started up? A. No, not when 

### I started;nope. 

### "Q. Then what occurred as you entered the intersection and were moving through the intersection? 

### A. Well, 

### I just got started and then 

### I seen this car coming. And 

### I swerved to the right and tried to avoid hitting him straight on. 

### "Q. Now,when you saw this car,did you have much time? A. 

### Ididn't have probably one or two seconds. 

### "Q. In otherwords, itwas almost instantaneous? 

### A. 

## hat's right.

"Q. What did you do as soon as you saw it? 

### A. I kind of braced myself. 

### I suppose 

### Imust have stepped down on the accelerator a little more and 

### I swerved to the right as quick as 

### I could.

II

### Q. What was the purpose ofbracing yourself? A.Wel1, it is just a habit, 

### Iguess; 

### Idon't know. You knew therewas going to be a collision of some kind." Elliott estimated hisspeed at the time of the collision at ten to fifteenmiles per hour. Hansen in answer to a pretrial interrogatory stated that his speed was five to ten miles per hour at the time of the collision. However,Hansen testified at trial that he had not looked at his speedometer immediately prior to the collision and did not actually know his speed at that time. He testified that subsequent to answering the interrogatory and prior to trial, he had made practice runs at the Four Corners intersection in a 

### similar car, and based on those experimentshe revised his estimate of his speed at the time of impact to twenty to twenty-fivemiles per hour. Hansen also testified the collision impact knocked him to the floor of his car and may have caused him to continueholding the accelerator down after the collision.Montana Highway Patrolman Austin Carey, who investigated the accident, testified the cars impacted in thenorth-east quadrant of the intersectionnear the center. The Elliott car
was strucknearly broadside on the left sideby the left front end of the Hansen car. The left side of the Elliott car was demolished and the carwas spun around nearly 

### 80 degrees, coming to restnear the center of the intersection. The left front end of the Hansen carwas severely damaged, the fender and bumper being bent until they impinged on the left front tire. The only skid mark atthe scene of the accident was leftby the left front tire of the Hansen car, which travelled on about forty-nine feet to the northeast corner of the intersection, crashed through and
came to rest atop a cement and steel guard rail. Both Hansen and his wife, who was the only passenger, were shaken but not seriously injured. Elliott, alone inhis car, sustained a severe injury tohis lefthip which required surgical replacement of the hipjoint. The casewas tried to a jury, and judgment was entered on
a verdict in favor of defendant Wansen. From that judgment and from the trialcourt's denial of motions for a judgment notwithstanding the verdict and for a new trial, plaintiff Elliottbrings this appeal, assigning these issues: (1) Did the trialcourt err in giving instruction No. 

### 7 on contributory negligence? (2) Did the trialcourt err in giving instruction No. 9 on continuing and concurring negligence? 

### (3) Did the trial court err inrefusing plaintiff's offered instruction 6 concerning Elliott's right to assume Hansen would use reasonable care? (4) Did the trialcourt err inrefusing to grant plaintiff's motions for a new trial, and judgment notwithstanding the verdict? Concerning the first appeal issue, plaintiff reliesheavily
on DeVerniero v. Eby, 159Mont. 146, 148, 496 P.2d 290, in con-tending that a contributory negligence instruction

### was improper under the facts of the instant case. An important factual distinction existsbetween the cases. In DeVerniero:

IIThe intersecting streetswere of equal status and were not marked with stop signs, stop lights or warning approach signals. 

# * 9:
IIIt 

### isuncontested that in such 

### a situation as existed here---where two vehicles are entering orapproaching an intersection from different highways atapproximately the same time, that under Montana statute section 32-2170, R.C.M. 1947, and sections 21-145, and 21-170, Billings Traffic Code, the driver of the vehicle to the leftis required toyield the right of way to the vehicle on the right.II Here, the intersection involved was controlledby "four way" stop signs and the procedure of approach and entry into the intersectionwas never definitely established. Section 32-2170, R.C.M. 1947, provides:

11

Vehicle approaching or entering intersection. (a) When two (2) vehicles enter or approach an intersection from different highways atapproximately the same time, the driver of the vehicle on the left shallyield the right of way to the vehicle on the right. "(b) The right of way rule declared inparagraph (a) 

### ismodified atthrough highways and otherwise ashereinafter stated inthis article.11 Section 32-2172(b)

## , R.C.M, 1947, provides: "(b) The driver of a vehicle shall likewise stop in obedience toa stop sign asrequired herein atan intersectionwhere a stop sign 

### is erected atone (1) or more entrances thereto although not 

### a part of a through highway and shallproceed cautiously, yielding tovehicles not so obliged to stopwhich arewithin the intersection or approaching so closely 

### as to constitute an immediate hazard, but then may proceed." Section 32-2166, R.C.M, provides: "No person shall start a vehicle which 

### is stopped, standing, or parked unless and until such movement can be made with reasonable safety.II The general right of way rules stated in section 32-2170, 

### R.C.M. 1947, aremodified by section 32-2172, 

### R.C.M. 1947, so that the vehicle approaching from theright that would otherwise have the right of way loses the preference because it isrequired to stop. There being no preferential right of way afforded a driver when required to stopby section 32-2172, then a driver approaching a four way stop has a statutory duty to stop, followed

### by a statutory duty to exercise ordinary care as he proceeds into
or through the intersection, Sections 32-2166and 32-2195(d), R.C.13. 

### 1947;Allstate Ins. Co. v. Angelo, 7 Ohio App.2d 149, 219 N.E.2d 218. Certainly, then, a factual issue existed at trial, Both Elliott and Hansen had the duty to make a full stop before entering the intersectionand to exercise ordinary care to determine that itwas reasonable safe to proceed into the intersection. Sullivan
v. Northern Pac. Ry. Co., 109Mont. 93, 94P. 

### 2d 651. Under the facts here,neither Elliott nor Hansen had a statutory right of
If 

### way or 

# referr red" or "favoredf'driver status. Elliott also contends that

## an sen's act in accelerating his vehicle rather than applying his brakes immediately prior to the collision amounts to an unforeseeable intervening or superseding cause which ~~ould break the chain of proximate causation
as to any negligence committed by Elliott. This contention has merit, and the record reflects that the trial court granted instructions on the concept of "proximate cause" and "last clear chance". However,we find the evidence before the jurywas by
no means so overk~helmingthat reasonableminds could not draw different conclusions as to whether the acceleration only instantaneously preceded the already inevitable collision or whether itwas the effective cause of the collision. We hold the jurywas properly instructed on the issue of contributorynegligence. Concerning the second appeal issue,defendant's proposed instruction 19,given as court's instructionNo. 9,reads:

I'

### You are instructed that the plaintiff is not entitled to recover from the defendant under the doctrine of last clear chance as previously defined to you in these instructions if you find that the plaintiff was negligent and that plaintiff's continued negligence up to the time of the accident and concurred as a proximate cause thereof. II 

### ~efendant's brief d5sclos~sthat the legal authority relied on in framing this instructionwas Gustafson v. Northern Pac,Ry. Co., 137Mont. 154, 160, 351 P.2d 212,where this Court stated:

### "Defendant cites Pollard v. Oregon Short Line 

### R. Co., 92I4ont. 119, 

### 11 P.2d 271, and Mihelich v. Butte Electric Ry., 85 Mont. 604, 281 P. 540, as authority for the contention that contributory negligence is a defense in a last clear chance case. But these cases are not properly so construed. They do point out that should a plaintiff continue to be negligentup to the time of the accident, so that suchnegligence is a concurring proximate cause of his own injury then the theory of the last clear chance has no application. ik

# *
"From what has been said, it is apparent that what is commonlyunderstood as 'contributorynegligence' isno defense in a last clear chance case, since this theory concedes plaintiffwas negligent in putting himself into the position of peril at the outset. However, a defendant may defeat plaintiff's claim by proving that plaintiffwas negligentup to the time of the injury and that his negligencewas a 

### concurringproximate cause.II 

### The trial court's instructionNo. 9was a correct statement of the law. Hannigan Northern Pacific 

### Ry. Co., 384 P.2d 493; Prosser Torts 4th Ed. 5 66,p. 431. The fact of ~lliott'scontinuing and concurring negligencewas fairly at issue upon the evidence before the jury, as it appears possible that Elliott failed to observe the Hansenvehicle or apply his brakes practically until the collision occurred. In light of the fact that Elliott introduced the "last clear chance" issue in his proposed instruction 23 (given as court's instructionNo. 

### 8), we find that court's instruction No. 9 was a fair and correct statement of the law and appropriate under the evidence. The third appeal issue concernsplaintiff's proposed instruction 6 refused by the trial court. The instructionwas taken fromJessen v. ~'Daniel, 136Mont. 513, 349 P.2d 107, and states the general principle that a person who is exercising ordinary carehas a right to assume that otherswill do likewise. The instructionasworded was a 

### correct statement of a legal principle and would not have constituted error had the trial court elected to permit it. However, light of the factual dispute
as to whether either of the litigantswas exercising ordinary are, the applicability of this instructionwas questionable at best.Reviewing the thirty instructions actually given by the trialcourt, we find that the issues of legal duty, negligence, proximate cause and damages were well defined and explained, hence the trialcourtwas within the legitimate exercise of its sound discretion inrefusing plaintiff's proposed instruction 6. Bjorndal v, Lane, 157 Mont. 543, 487 P.2d 527; Lamb v. Page, 153Mont. 171, 455 P.2d 337, plaintiff's fourth issue concerns the trial court's denial of plaintiff's motions forjudgment notwithstanding the verdict and for 

### a new trial. We find this casewas well tried; the jury
was fully and fairlyinstructed. The evidence, although conflicting, was sufficient if viewed in the lightmost favorable to the prevailing party inthe district court to sustain the jury's verdict. Gunderson v. Brewster, 154 Mont. 405, 466 P.2d 589; Jessen v. ~'~aniel, 136 Mont, 513, 349 P.2d 107, The judgment 

### is affirmed.

Justice 

# .'

Chief Justice

Justices.

Mr. Justice John Conway Harrison dissenting: 

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