No. 1.3008 

LN THE 5UPREME COlJKT OF THE STATE OF MONTANA 

1975 

- 

EVELYN GRABS , 

Plainrif f 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 in Ravalli County, January 3, 1975. The 

relevant facts were agreed to by the parties and are generally 

set forth in the 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 as Beer Can Hill, 

which can be reached by turning at the Blodgett Creek Road, 

approximately one and one-half miles from Hamilton, near an exit 

leading to the Tolman Meat Company premises. It was a clear 

afternoon and visibility was normal. 

At this particular point along the route, U.S. Highway 

93 tmms temporarily 90" to the west for about 1,000 feet. The 

next 360 feet of highway is occupied by a bridge, and 360 feet from 

the end of the bridge the highway again bends 90" and returns to 

its northerly course. In the approximate middle of this final 

curve toward the north, lies the Blodgett Creek Roadcexit leading 

toward Beer Can Hill and plaintiff's residence. 

On the day of the collision, plaintiff signaled a left 

turn as she passed the middle of the bridge and glanced in her rear 

view mirror. She then saw defendant's vehicle, a 1969 Auto Car 

semi-tractor with trailer, carrying 39 tons of wood chips, which 

at that moment was passing a local bar 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 to wait 

for a red pickup truck which appeared to be approaching at a 

speed, later established, at about 50 miles per hour. Moments 
later, she was hit from behind by defendant's vehicle. The 

collision occurred in the right hand lane of traffic. Both 

vehicles were pointed north at the time of the accident. Plaintiff 

received treatment from both a general practitioner and an 

orthopedic surgeon shortly after the accident. She also received 

certain treatment as an outpatient at a hospital in Hamilton. 

At trial, defendant admitted the negligence of its driver, 

but contended the case was proper for jury consideration on the 

issue of whether or not plaintiff was contributorily negligent. 

plaintiff's motions for directed verdict and for judgment notwithstanding the verdict were denied by the district court. 

Plaintiff contends these rulings were improper and that her conduct could not have constituted contributory negligence as a 

matter of law. We agree. 

The power of the district court to direct a jury verdict 

is controlled by section 93-5205, R.C.M. 1947, which states: 

11 Where, upon the trial of an issue by a jury, 

the case presents only questions of law, the 

judge may direct the jury to render a verdict 

in favor of the party entitled thereto." 

The classic test employed to determine whether a question 

is one of fact or law, involves the application of a rule of reason. 

Where reasonable men could draw different conclusions from the 

presented evidence, the question is one of fact. But if only 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, 151 Mont. 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, 159 Mont. 167, 496 P.2d 83; De,Verniero v. 
Eby, 159 Mont. 146, 496 P.2d 290; Jackson v. William Dingwall 

Co., 145 Mont. 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 to make her turn,though she might 

reasonably have done so in light of the uncontested facts. 

Defendant points out the oncoming pickup truck was approximately 

300 yards from plaintiff's car when it stopped for the turn, and 

at the rate of 50 miles per hour the pickup would not have reached 

the turnoff for another twenty seconds. First, we determine whether 

or not plaintiff's failure to turn could reasonably constitute 

negligence under the law. Does the law permit such an inference 

under these circumstances? 

In Montana, the term "negligence" is defined as a 

want of such attention to the nature or probable consequences of 

the act or ommission as a prudent man ordinarly bestows in acting 

in his own concerns. Section 19-103 (16), R. C.M. 1947; Flansberg 

v. Montana Power Co., 154 Mont. 53, 60, 460 P.2d 263. The standard 

of conduct imposed on those alleged to have been contributorily 

negligent has historically been the same as that imposed on the 

negligent defendant. 2 Restatement of Torts 2d, 5 464, Comment a. 

The driver of a motor vehicle in Montana 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 left turns 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 the proper signal has been 

made, section 32-2167, R.C.M. 1947. The driver of a vehicle 

intending to turn left "shall yield the right of way to any 

vehicle approaching from the opposite direction" which is close 

enough to the intersection to constitute an immediate hazard, 
section 32-2171, R.C.M. 1947. Section 32-2171 also has been 

interpreted as including a duty to maintain a proper lookout 

for vehicles approaching from the rear. Bellon v. Heinzig, 

347 F.2d 4. 

Defendant subscribes to the view that under these facts 

a jury should decide whether plaintiff's conduct fell below the 

standard of care by failing to in some way remove herself from 

the path of the oncoming truck by beginning the turn or at least 

by moving to some other place. Yet, defendant does not suggest, 

and there is no evidence, that plaintiff was in violation of any 

of the statutes cited heretofore, or that she was in any way 

negligent, other than her failure totum, against her better judgment, in front of a vehicle approaching at the rate 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 

the uncontested facts, the failure or inability of the truck driver 

to stop his vehicle before what became the point of impact. It has 

been established that one is not required to anticipate the negligence 

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 to begin her turn, we quote the words of Mr. Justice 

Stewart in Stevens v. City of Butte, 107 Mont. 354, 365, 85 P.26 

339: 

If In making a choice between two courses to pursue, 

one is not required to make 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 to require the driver of a preceding vehicle to vacate its 

lawful location in order to clear the way for an admittedly negligent driver approaching from the rear. Such a rule, when carried 

to its logical extreme, would impose upon all vehicles legitimately 
stopped 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, as Bellon 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 to detect the 

potentially hazardous situation ahead, sections 32-2160 and 

32-2171, R.C.M. 1947. Erickson v. Perrett, Mon t . s 

The district court erred in denying the motion for a 

directed verdict. Cause is remanded to the district court. 

GDhief Justice- 
Mr. Justice Frank I. Haswell dissenting: 

I dissent. This is the 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, Mon t . 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 in the highway rather 

than completing a left turn onto a side road. Whether this 

conduct constituted ordinary care under all the circumstances 

of the case was for the jury to decide. So was the question 

of proximate cause. Where different conclusions are possible 

under the evidence, the court may not decide liability as a 

matter of law. These are my views of the law. 

I would affirm the judgment based on the jury verdict. 

Justice.