No. 12435 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

JOHN A. ELLIOTT, 

Plaintiff and Appellant, 

RASMUS M. HANSEN, 

Defendant and Respondent. 

Appeal from : District Court of the Eighteenth Judicial District , 

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, 1973 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an action for damages suffered in an automobile 

collision. The act ion was tried in the district court of the 

eighteenth judicial district, Gallatin County. Plaintiff, John 

A. Elliott appeals from the final judgment 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 

driven by the litigants herein collided near Bozeman, Montana, 

at the intersection of U.S. Highway 191 and State Highway 291, 

known locally as the o our Corners". The Four Corners intersection 

was controlled by a stop sign at each of its four entrances; a 

flashing red light was 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 lights were positioned about 1,000 

feet ahead of the "four way" stop signs. Weather conditions were 

clear on that morning and visibility was good. The terrain and 

surroundings at the Four Corners were such that from the stop sign 

at either the south or east entrance there was 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 at the stop 

sign, looked in all directions and, seeing no cars coming or stopped 

at the other stop signs, entered the intersection and began making 

a left turn. Quoting from ~lliott's testimony: 

"Q. Was anybody stopped at any 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 to go south to West 

Yellowstone. 

"Q. At anytime after you had left the stop sign, did 

you ever observe Mr. an sen's vehicle? A. No. not 

until I started to turn 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 continue north. Quoting 

from ans sen's testimony: 

I I Q. Were there any cars in the intersection when 

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. I didn't have probably one or two seconds. 

"Q. In other words, it was 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 I must have stepped 

down on the accelerator a little more and I swerved 

to the right as quick as I could. 

I I Q. What was the purpose of bracing yourself? A.Wel1, 

it is just a habit, I guess; I don't know. You knew 

there was going to be a collision of some kind." 

Elliott estimated hisspeed at the time of the collision 

at ten to fifteen miles 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 experiments he 

revised his estimate of his speed at the time of impact to twenty 

to twenty-five miles per hour. Hansen also testified the collision 

impact knocked him to the floor of his car and may have caused 

him to continue holding the accelerator down after the collision. 
Montana Highway Patrolman Austin Carey, who investigated 

the accident, testified the cars impacted in the north-east 

quadrant of the intersection near the center. The Elliott car 

was struck nearly broadside on the left side by the left front 

end of the Hansen car. The left side of the Elliott car was 

demolished and the car was spun around nearly 80 degrees, coming 

to rest near the center of the intersection. The left front end 

of the Hansen car was severely damaged, the fender and bumper 

being bent until they impinged on the left front tire. The only 

skid mark at the scene of the accident was left by 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 in his car, 

sustained a severe injury to his left hip which required surgical 

replacement of the hip joint. 

The case was tried to a jury, and judgment was entered on 

a verdict in favor of defendant Wansen. From that judgment and 

from the trial court's denial of motions for a judgment notwithstanding the verdict and for a new trial, plaintiff Elliott brings 

this appeal, assigning these issues: 

(1) Did the trial court err in giving instruction 

No. 7 on contributory negligence? 

(2) Did the trial court err in giving instruction 

No. 9 on continuing and concurring negligence? 

(3) Did the trial court err in refusing plaintiff's 

offered instruction 6 concerning Elliott's right to assume 

Hansen would use reasonable care? 

(4) Did the trial court err in refusing to grant 

plaintiff's motions for a new trial, and judgment notwithstanding the verdict ? 

Concerning the first appeal issue, plaintiff relies heavily 

on DeVerniero v. Eby, 159 Mont. 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 exists between the cases. In DeVerniero: 

I I The intersecting streets were of equal status and 

were not marked with stop signs, stop lights or 

warning approach signals. * 9: 

I I It is uncontested that in such a situation as existed 

here---where two vehicles are entering or approaching 

an intersection from different highways at approximately 

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 left is 

required to yield the right of way to the vehicle on 

the right. I I 

Here, the intersection involved was controlled by "four 

way" stop signs and the procedure of approach and entry into the 

intersection was 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 at approximately the same time, 

the driver of the vehicle on the left shall yield the 

right of way to the vehicle on the right. 

"(b) The right of way rule declared in paragraph (a) 

is modified at through highways and otherwise as hereinafter stated in this article. 11 

Section 32-2172 (b) , R.C.M, 1947, provides: 

"(b) The driver of a vehicle shall likewise stop in 

obedience to a stop sign as required herein at an 

intersection where a stop sign is erected at one (1) 

or more entrances thereto although not a part of a 

through highway and shall proceed cautiously, yielding 

to vehicles not so obliged to stop which are within 

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. I I 

The general right of way rules stated in section 32-2170, 

R.C.M. 1947, are modified by section 32-2172, R.C.M. 1947, so 

that the vehicle approaching from the right that would otherwise 

have the right of way loses the preference because it is required 

to stop. There being no preferential right of way afforded a 

driver when required to stop by 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 32-2166 and 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 intersection and to exercise ordinary care to determine that 

it was reasonable safe to proceed into the intersection. Sullivan 

v. Northern Pac. Ry. Co., 109 Mont. 93, 94 P. 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 jury was by 

no means so overk~helming that reasonable minds could not draw 

different conclusions as to whether the acceleration only 

instantaneously preceded the already inevitable collision or 

whether it was the effective cause of the collision. 

We hold the jury was properly instructed on the issue of 

contributory negligence. 

Concerning the second appeal issue, defendant's proposed 

instruction 19, given as court's instruction No. 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. I I 

~efendant's brief d5sclos~s that the legal authority relied 

on in framing this instruction was Gustafson v. Northern Pac, Ry. 

Co., 137 Mont. 154, 160, 351 P.2d 212, where this Court stated: 
"Defendant cites Pollard v. Oregon Short Line R. 

Co., 92 I4ont. 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 negligent up to the time of the 

accident, so that such negligence 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 commonly understood as 'contributory negligence' 

is no defense in a last clear chance case, since 

this theory concedes plaintiff was negligent in 

putting himself into the position of peril at the 

outset. However, a defendant may defeat plaintiff's 

claim by proving that plaintiff was negligent up to 

the time of the injury and that his negligence was 

a concurring proximate cause. I I 

The trial court's instruction No. 9 was 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's continuing and concurring negligence was fairly at 

issue upon the evidence before the jury, as it appears possible 

that Elliott failed to observe the Hansen vehicle 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 instruction No. 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 concerns plaintiff's proposed 

instruction 6 refused by the trial court. The instruction was 

taken from Jessen v. ~'Daniel, 136 Mont. 513, 349 P.2d 107, and 

states the general principle that a person who is exercising 

ordinary care has a right to assume that others will do likewise. 

The instruction as worded 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 litigants was exercising ordinary 

are, the applicability of this instruction was questionable at best. 
Reviewing the thirty instructions actually given by the 

trial court, we find that the issues of legal duty, negligence, 

proximate cause and damages were well defined and explained, 

hence the trial court was within the legitimate exercise of its 

sound discretion in refusing plaintiff's proposed instruction 6. 

Bjorndal v, Lane, 157 Mont. 543, 487 P.2d 527; Lamb v. Page, 

153 Mont. 171, 455 P.2d 337, 

plaintiff's fourth issue concerns the trial court's denial 

of plaintiff's motions for judgment notwithstanding the verdict 

and for a new trial. We find this case was well tried; the jury 

was fully and fairly instructed. The evidence, although conflicting, was sufficient if viewed in the light most favorable 

to the prevailing party in the 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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