No. 1.3008 LN THE 5UPREME COlJKT OF THE STATE OF MONTANA 1975

- EVELYN GRABS

## , Plainriff and Appellant,

-vs

# - MISSOULA CARTAGE COMPANY, INC., Defendant and Respondent.

Appeal from: District Court of the Fourth Judicial District, Hon. Edward 

### T. Dussault, Judge presiding. Counsel of Record: For Appellant: Tipp and Hoven, Missoula, Montana Douglas G. Skjelset argued, Missoula, Montana For ~espondent: Garlington, Lohn and Robinson, Missoula, Montana Larry E. Riley argued, Missoula, Montana

Submitted: December 

### 2, 1975 Decided: 

### FF_b

## -2 1376

### Mr. Justdce John Conway flarrison delivered the Opinion of the Court,
Plaintiff Evelyn Grabs appeals from a judgment in favor of defendant Missoula Cartage Company, Inc., based on a jury verdict rendered inRavalli County, January 3, 1975. The relevant factswere agreed toby the parties and are generally set forth inthe pretrial order. On May 

### 2, 1973, plaintiff Grabs was driving her 1972 Chrysler automobile from Hamilton, Montana, toward Missoula proceeding north on U. S. Highway 93. Her destination was her home located northwest of a place commonly known asBeer Can Hill, which can be reached by turning atthe Blodgett Creek Road, approximately one and one-half miles from Hamilton, near an exit leading to theTolman Meat Company premises. It was a clear afternoon and visibilitywas normal. Atthis particular point along the route, 

### U.S. Highway 93 tmms temporarily 90" tothewest for about 1,000 feet. The next 360 feet of highway 

### is occupied by a bridge, and 360 feet from the end of thebridge the highway again bends 90" and returns to 

### itsnortherly course. In the approximate middle of this final
curve toward thenorth, lies the Blodgett Creek Roadcexitleading toward Beer Can Hilland plaintiff's residence. On the day of the collision, plaintiff signaled a left turn as she passed the middle of thebridge and glanced inher rear view

### mirror. She then saw defendant's vehicle, a 1969 Auto Car semi-tractor with trailer, carrying 39 tons of wood chips, which atthat moment was passing 

### a localbar about one-fifth of a mile from plaintiff's position. plaintiff's car rounded the curve and ,V -td. slowed near the Blodgett Creek Road turnoff. It stopped towait for a red pickup truck which appeared tobe approaching at

### a speed, later established, atabout 50 miles per hour. Momentslater, shewas hit from behind by defendant's vehicle. The collision occurred in the right hand lane of traffic. Both vehicleswere pointed north atthe time of the accident. Plaintiff received treatment from both a general practitioner and an orthopedic surgeon shortly after the accident. She alsoreceived certain treatment 

### as an outpatient at

### a hospital inHamilton. Attrial, defendant admitted thenegligence of its driver, but contended the casewas proper forjury consideration on the issue of whether ornot plaintiff was contributorilynegligent. plaintiff's motions for directed verdict and forjudgment notwithstanding the verdict were denied by the district court. Plaintiff contends these rulingswere improper and that her conduct could not have constituted contributorynegligence 

### as a matter of law. We agree. The power of the district court todirect 

### a jury verdict is controlled by section 93-5205, 

### R.C.M. 1947, which states:

11

Where, upon the trial of an issueby 

### a jury, the case presents only questions of law, the judge may direct thejury to render a verdict in favor of the party entitled thereto." The classic test employed todetermine whether a question is one of fact or law, involves the application of a ruleof reason. Where reasonable men could draw different conclusions from the presented evidence, the question is one of fact. But ifonly one conclusion could reasonably be drawn, the question is one of law, properly resolvable through the procedural device of directed verdict. Shields v. Murray, 156 Mont. 493, 481 P.2d 680; Pickett
v. Kyger, 151Mont. 87, 439 P.2d 57; Bridges v. Moritz, 149 Mont. 273, 425 P.2d 721; Parini v. Lanch, 148 Mont. 188, 418 P.2d 861; Holland v. Konda, 142 Mont. 536, 385 P.2d 272. Reduced to 

### its fundamentals the defense of contributory negligence must be supported by proof that plaintiff was negligent, and that such negligence was the proximate cause of the injuries. Gilleard v. Draine, 159Mont. 167, 496 P.2d 83; De,Vernierov.

### Eby, 159Mont. 146, 496 P.2d 290; Jackson v. William Dingwall Co., 145Mont. 127, 399 P.2d 236; Thompson v. Llewellyn, 136 Mont. 167, 346 P.2d 561. Defendant argues that plaintiff was contributorily negligent in that she failed tomake her turn,though shemight reasonably have done so inlight of theuncontested facts. Defendant points out the oncoming pickup truckwas approximately 300 yards from plaintiff's carwhen it 

### stopped for the turn, and attherateof 50 miles

### per hour the pickup would not have reached the turnoff for another twenty seconds. First, we determinewhether
ornot plaintiff's failuretoturn could reasonably constitute negligence under the law. Does the law permit such an inference under these circumstances? In Montana, the term 

### "negligence" is

### defined asa want of such attention tothenature or probable consequences of the act orommission as a prudent man ordinarlybestows inacting in his own concerns. Section 19-103(16), R.C.M. 

### 1947; Flansberg
v. Montana Power Co., 154Mont. 53, 60, 460 P.2d 263. The standard of conduct imposed on those alleged tohave been contributorily negligent has historicallybeen the same as that imposed on the negligent defendant. 2 Restatement of Torts 2d, 

### 5 464, Comment a. The driver of a motor vehicle inMontana may not follow another vehicle "more closely than is

### reasonable and prudent'' under the circumstances, section 32-2160, R.C.M. 

### 1947. The law imposes several duties on the attempting leftturns on two-way roadways. Such turns must be made from "that portion of the right half of the roadway nearest the center line thereof", section 32- 

### 2164(b), R.C.M. 

### 1947, and only after theproper signalhas been made, section 32-2167, R.C.M. 

### 1947. The driver of a vehicle intending toturn left 

### "shall yield theright of way toany vehicle approaching from the opposite direction" which is

### close enough to the intersection toconstitute an immediate hazard,section 32-2171, R.C.M. 1947. Section 32-2171 alsohas been interpreted as including 

### a duty tomaintain a proper lookout for vehicles approaching from the rear. Bellon v. Heinzig, 347 F.2d 4. Defendant subscribes tothe view that under these facts
a jury should decide whether plaintiff's conduct fellbelow the standard of care by failing to in some way remove herself from the path of the oncoming truckby beginning the turn or atleast by moving to some other place. Yet, defendant does not suggest, and there 

### isno evidence, that plaintiff was inviolation of any of the statutescited heretofore, or that shewas in any way negligent, other than her failure totum, against her betterjudgment, in front of a vehicle approaching at therate of 50 miles per hour.It cannot be said, under the facts of this case, that an ordinarily prudent person would apprehend or anticipate, under theuncontested facts, the failure or inability of the truck driver to stophis vehicle before what became the point of impact. It has been established that one 

### isnot required toanticipate thenegligence of another. Merithew v. Hill, 167 F.Supp. 320; Fulton v. Choyteau County Farmers' Co., 98 Mont. 

### 48, 37 P.2d 1025. Regarding plaintiff's failure tobegin her turn, we quote thewords of Mr. Justice Stewart in Stevens v. City of Butte, 107Mont. 354, 365, 85 P.26 339:
IfIn making a choice between two courses topursue, one 

### isnot required tomake the correct choice in light of after-events, but only such choice as a reasonably prudent person might make under the known or obvious circumstances. 

# **

# *" The law does not contemplate a standard of care so lofty
as torequire the driver of a preceding vehicle tovacate its lawful location in order toclear theway for an admittedly negligent driver approaching from the rear. Such a rule, when carried to

### its logical extreme, would impose upon allvehicles legitimatelystopped for purposes of turning, the affirmative duty to stay clear of approaching traffic, regardless of the circumstances. To be sure, reasonable, safe and prudent drivers must always be
aware of the traffic behind them, especially, asBellon points out, when an approaching vehicle attempts to pass a preceding vehicle attempting to turn. But, the primary responsibility must be on those drivers who have the opportunity todetect the potentially hazardous situation ahead, sections 32-2160 and 32-2171, 

### R.C.M. 1947. Erickson v. Perrett, Mont

# . s

The district court erred in denying the motion for a directed verdict. Cause 

### isremanded to the district court.



### GDhief Justice-

### Mr. Justice Frank I. Haswell dissenting:


### I dissent. This 

### isthe second time in the past month that a majority of this Court has reversed a jury determination concerning negligence and proximate cause. See: Erickson v. Perrett, Mont

# . 9 P.2d 

## , 33 St.Rep. 109. In the instant case the majority has decided as a matter of law that plaintiff was not guilty of contributory negligence when she stopped on a curve inthe highway rather than completing a left turn onto a side road. Whether this conduct constituted ordinary care under allthe circumstances of the casewas for thejury todecide. So was the question of proximate cause. Where different conclusions are possible under the evidence, the court may not decide liabilityas a matter of law. These aremy views of the law. I would affirm thejudgment based on thejury verdict.

Justice.