### No. 1.3160 

### IN THE SUPKhNE SOUKT 

### OF 

### THE STATE OF MONTANA 

### 1976

ALEXANDBK I)ZLKOWSKI

## , Plaintiff and 

### Appellant,



### PAUL L1.

### JACOBS, ROBi2KT 

### WILLIAMS 

### AND SAMMOPS

# - TRUCKING 

### COMPANY, Defendants and Respondents.

~ppeal 

### from: 

### !]istrict Court 

### of the Third Judicial District, Honorable Robert J. Boyd, Judge presiding. Courrsel 

### of Record: 

### For Appellant: James J. Masar argued, --y, Deer T,odge, Montana Olson, White and Olson, Bozeman, Montana For Kespondents: Corette, Smith and Dean, Butte, Montana R. 

### D. Corette, 

### Jr. argued, Butte, Montana John Larson appeared, Butte, Montana

Submitted: May 

### 25, 1976 Decided :

# &U(; 1

## 15911Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appeal from a judgment entered ina personal injury action tried before the districtcourt, Powell County, Hon. Robert J. Boyd presiding. Judgment was entered on a jury verdict absolving defendants of liability inconnection with a car-truck collision. The personal injury action arose from these facts: On February 19, 1973, Alexander Dzikowski, while driving a 1962 Pontiac north on U.S. Highway 10between Warm Springs State Hospital and Galen StateHospital, was involved in

### a collision with a 

### semi truck and trailer. The 

### semiwas driven by Paul Jacobs, owned by Robert D. Williams, and under 

### lease to Sammons Trucking Company. The collisionoccurred approximately one

### mile south of themain turnoff toGalen StateHospital atan intersection where a county gravel road joins U.S. Highway 10. The record reveals these pertinent facts concerning this intersection and the immediate vicinity: U.S. Highway 10 inthisarea is straight. There are no highway department markings or signs indicating an intersectionwith a gravel road. Inthe intersection itself and for approximately a 

### mile in either direction, the highway contains a broken yellow median line. Also, that on the day of the accident the highway was bare and dry. The collision occurred asJacobs, who had been following Dzikowski's car for some 

### time, attempted topass atthe same 

### time Dzikowski began executing a leftturn onto thegravel road. Jacobs' 

### semihitthe driver's sideof Dzikowski's car with both vehicles proceeding off the highway into thebarrow pit. When the two vehicles came to

### rest, a load of steel I-beams felloff the trailer onto the 

### car causing serious injuries toDzikowski. As a result of the accident, Dzikowski brought an actionagainst Paul Jacobs, Robert Williams and Sammons Trucking Company for medical expenses, property damage, loss of earnings, and general damages. The basis of Dzikowski's complaint was the alleged negligence of Jacobs inattempting topass within

a public intersection. Following the dismissal of Sammons ~rucking Company 

### as

a party defendant, the case was tried before a jury. The jury returned a verdict in favor of defendants. Dzikowski's motion for a new trialwas denied, and this appeal followed. Two issues arepresented for review: (1)Did the districtcourt commit reversible error by refusing plaintiff's offered instructions No. 

### 11 and No. 12 on passing ata public intersection? (2) Did the districtcourt commit reversible error by instructing the jury on the issue of contributory negligence? Plaintiff contends the districtcourt erred innot giving plaintiff's offered instructionsNos. 11 and 12 which read: "InstructionNo. 11. You are instructed that no vehicle shall atany 

### timebe driven tothe left side of the roadway under the following conditions: 

## "(2) when approaching within one hundred (100) feetof or traversing any intersection orrailroad grade crossing."

"Instruction No. 12. You are instructed that an intersection within the meaning of Section 32-2156, R.C.M. 1947, 

### is formed by the joining of two ways publicly maintained, which areopen tovehicular traffic." Specifically citing section 32-2156 (a)(2)

## , R.C.M. 1947, and Leach

v. Great Northern Railway Co., 139 Mont. 84, 94, 360 P.2d 94, plaintiff argues that these

### wereproper instructions given the fact that defendant Jacobs attempted topass within the intersection of two publicly maintained vehicular ways. As additional support for his position, plaintiff 

### relies principally on Raderv. Nicholls, 140Mont. 459, 373 P.2d 312, and Gammel v. Dees, 159Mont. 461, 498 P.2d 1204. This Court finds no 

### meritinplaintiff's contention and finds Rader and Gamrnel, cited by plaintiff, tobe distinguishable from the instant 

### case. Section 32-2156 (a)(2), R.C.M. 1947, states: "No vehicle shall 

### atany 

### timebe driven to the left sideof the roadway under the following conditions:



### "(2)When approaching within one hundred (100) feet of or traversing any intersection or railroad grade crossing 

## * * 

## *." In Leach this Court defined an intersection: "An intersection, within themeaning of 

### section 32-2156, R.C.M. 1947, 

### is formed by the joining of two ways publicly maintained which areopen tothe public for vehicular travel. " However plaintiff's exclusive reliance on section 32- 2156(a)(2), and 

### its interpretation inLeach 

### ismisplaced, in lightof two additional facts present inthis case. The record reveals the intersection inquestion had no signsmarking 

### it 

### as such towarn against passing. Additionally, within the intersection and for some distance on either side, U.S. Highway 10 displayed 

### a broken yellowmedian line, indicating a passing

zone. ~hus the directive of section 32-2156(a)(2),and the markings on U.S. Highway 10atthe intersection are indirect conflict. The question becomes, which takes precedence. This Court answered thisvery question in Faucette v. Christensen, 145Mont. 28, 36, 37, 400 P.2d 883, where, in

### a similar fact situation, a car attempting topass within an intersection marked for passing, struck the leftturning car in front of 

### it. In Faucette the Court noted that sections 32-2133 and 32-2134, R.C.M. 1947, vested intheMontana Department ofHighways the authority toadopt a system of traffic control devices and todiscretionarily place them on statehighways

asa means of regulating, warning and guiding traffic thereon. In addition, the Court recognized the obedience which such traffic control devices commanded by virtue of section 32-2136, R.C.M. 1947. In Faucette 

### we harmonized the conflicting statutory sections: 

### " 

## * * * we hold that the prohibited intersection for passing under section 32-2156, 

### is that intersectionmarked by the highway commission 

### as authorized and adopted as heretofore described. Such reasoning gives meaning toallof the statutes heretofore cited and toregulations adopted thereunder.

"In the instant situation, a driver can follow the directions of markings and signs, and indoing so 

### is not inviolation of section 32-2156." The Court affirmed this position in Graveley v. Springer, 145 Mont. 486, 402 P.2d 41. Plaintiff citesRader and Gamrnel in an apparent effort toplace the Faucette rule in doubt. We find both of these

cases tobe distinguishable from Faucette and thus from the instant case. Rader involved this Court's affirmance of a nonsuit granted by the districtcourt where the plaintiff collided with the defendant's car while attempting topass, and defendant 

### was signaling and attempting to execute a left-hand turn onto an intersecting county road. To distinguish Rader, 

### we need merely note that it was decided prior toFaucette. In Gammel, decided subsequent toFaucette, the defendantwas found to be negligent inattempting topass within an unmarked intersection traversed by a broken yellow center line. However the basis of liability in Gammel was not the fact that the defendant attempted topass within the intersectionbut thathe failed to exercise due care in doing so inview of his high rateof speed, lack of audible signal, and ignorance of facts which would have led a reasonable man toproceed with caution. Since Rader and Gamrnel aredistinguishable, the rule established inFaucette and reiterated inGraveley

### iscontrolling in the disposition of the issue before us. Therefore offered Instructions No. 

### 11 and No. 12

### were properly refused by the districtcourt. Plaintiff next contends there

### was no evidence of any negligence on plaintiff's part which might have contributed to the proximate cause of the accident and consequently, the instruction given tothejury on contributory negligence was not proper. Specifically, plaintiff claimed he did everything necessary tomake a legal and safe turn atthe intersection, including turning on his leftturn signal. From examination of therecord 

### we do not agreewith plaintiff's contention. The basic dispute here, as it concerns contributory negligence, centers around whether plaintiff's leftturn signal

was infacton immediately prior tothe accident. If 

### it was not, the issue of contributory negligence was properly raised. Section 32-2167, R.C.M. 1947, requires a turn signal tobe given for atleast 100 feet immediately prior toturning atan intersection. Under the facts of this case, failuretocomply with this statutory section could properly be considered indetermining the proximate cause of the accident. On the other hand, if the turn signal was on, an instruction on contributory negligence would not be proper sinceunder that fact situation, defendant Jacobs would be charged with seeing that which he should have seen, had he looked. See: O'Brien v. Great Northern Railroad Company, 148 Mont. 429, 421 P.2d 710; Jimison v. United States,267 F.Supp. 674; Monforton v. Northern Pacific Ry., 138 Mont. 191, 355 P.2d 501. Thus, if plaintiff did in fact signal for

a leftturn, defendant's act of passing could properly be held tobe the proximate cause of the accident under the Faucette rule, asinterpreted inGammel heretofore discussed. The record reveals that plaintiff testified he began signaling for a leftturn approximately 400 yards before the intersection. Defendant testified that atno 

### timedid he 

### see a turn signal on plaintiff's car prior tothe accident. Patrolman Bernard Barton, the highway patrolman who investigated the accident, stated he saw the leftblinker on and testified the wrecker driver eventually shut 

### it off. On the basis of such testimony, the weight of the evidence would tend to lean heavily in plaintiff's favor. However, a closer examination of Patrolman Barton's testimony casts some doubt. First on cross-examination, this exchange occurred: "Q. With regard to the scene of the accident, you testified with regard to turn signa.1~ on Mr. Dzikowski car-- A. Yes. "Q. --I think that you said that they were on 

### at some point? A. Atthe time I seen them they 

### were on and thiswas like I said after the victim had been removed and started into the investigation." (Emphasis supplied.) This testimony was repeated shortly thereafter: "Q. When you got out of the patrol car you did then see the car? A. Yes, after I advanced 

### a littlebit and more or 

### less headed for the unit I seen it then. "Q. When you firstobserved the car and walking up to it you didn't see any blinking lights on 

### at that time? A. I don't recall seeing them, I may-- the firstrecollection I have 

### is lateron." (Emphasis supplied.) On redirect, the following questions and answers
arenoted: "Q. And, I believe you testified that when you firstobserved the accident did you observe the car when you firstarrived there? A. No I did not.

### "Q. 

### And why was that? A. It was on account of the truck of the side from where Ihad stopped my car. "Q. 

### And, how did you approach the automobile from where you stopped? A. 

### From the rear in a direct line from the patrol car. "Q. 

### From the rear of the automobile? A. Yes." (Emphasissupplied.) 

### - The fact that patrolman Barton walked rightpast the rear of plaintiff's car immediately after arriving at the accident scene and yet did not see any flashing of the rear left turn signal, coupled with the fact that a flashing turn signal was noticed after the somewhat prolonged efforts to extricate the plaintiff could lead a jury to believe the left turn signal was not in fact functioning until after the accident. Such a determination would not be unreasonable in view of the possibility the very act of removing plaintiff could have activated the turn signal. Our duty here is not to determinewhether the turn signal

was in fact on but rather, we may only determinewhether sufficient evidence existed to warrant an instruction to the jury on contributory negligence. We have held in the past that where inferences to be drawn from evidence as to whether the plaintiff exercised due care are open to different conclusions by reasonable men, the issue of contributory negligence is one for the jury. Dahlin v. Rice Truck Lines, 137 Mont. 430, 352 P.2d 801; Shieldsv. Murray, 156 Mont. 493, 481 P.2d 680;Allen v. Moore, Mont. 

## , 538 P.2d 1352, 32 St.Rep. 478. The judgment of the

Justice We concur:

Hon. Gordon Bennett, ~istrict Judge, sitting in place of Mr. Justice James T. Harrison. 

### - 8

## -

### Mr. Justice John Conway Harrison dissenting: I dissent.

Justice