No. 1.3160 

IN THE SUPKhNE SOUKT OF THE STATE OF MONTANA 

1976 

ALEXANDBK I)Z LKOWSKI , 

Plaintiff and Appellant, 

PAUL L1. JACOBS, ROBi2KT WILLIAMS 

AND SAMMOPS - TRUCKING COMPANY, 

Defendants and Respondents. 

~ppeal from: !]is trict 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 1 5911 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a judgment entered in a personal 

injury action tried before the district court, Powell County, 

Hon. Robert J. Boyd presiding. Judgment was entered on a jury 

verdict absolving defendants of liability in connection 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 10 between Warm Springs State 

Hospital and Galen State Hospital, was involved in a collision 

with a semi truck and trailer. The semi was driven by Paul 

Jacobs, owned by Robert D. Williams, and under lease to Sammons 

Trucking Company. 

The collision occurred approximately one mile south of 

the main turnoff to Galen State Hospital at an 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 in this area is straight. 

There are no highway department markings or signs indicating an 

intersection with a gravel road. In the 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 as Jacobs, who had been following 

Dzikowski's car for some time, attempted to pass at the same time 

Dzikowski began executing a left turn onto the gravel road. Jacobs' 

semi hit the driver's side of Dzikowski's car with both vehicles 

proceeding off the highway into the barrow pit. When the two 

vehicles came to rest, a load of steel I-beams fell off the trailer 

onto the car causing serious injuries to Dzikowski. 

As a result of the accident, Dzikowski brought an action 
against 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 in attempting to pass 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 trial was denied, and this appeal followed. 

Two issues are presented for review: 

(1) Did the district court commit reversible error by 

refusing plaintiff's offered instructions No. 11 and No. 12 on 

passing at a public intersection? 

(2) Did the district court commit reversible error by 

instructing the jury on the issue of contributory negligence? 

Plaintiff contends the district court erred in not giving 

plaintiff's offered instructions Nos. 11 and 12 which read: 

"Instruction No. 11. You are instructed that 

no vehicle shall at any time be driven to the 

left side of the roadway under the following 

conditions : 

" (2) when approaching within one hundred (100) 

feet of or traversing any intersection or railroad 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 are open 

to vehicular 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 were proper instructions given the 

fact that defendant Jacobs attempted to pass within the intersection of two publicly maintained vehicular ways. As additional 

support for his position, plaintiff relies principally on Rader 
v. Nicholls, 140 Mont. 459, 373 P.2d 312, and Gammel v. Dees, 

159 Mont. 461, 498 P.2d 1204. 

This Court finds no merit in plaintiff's contention and 

finds Rader and Gamrnel, cited by plaintiff, to be distinguishable 

from the instant case. 

Section 32-2156 (a) (2), R.C.M. 1947, states: 

"No vehicle shall at any time be driven to the 

left side of 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 the meaning of section 32-2156, R.C.M. 1947, is formed by the 

joining of two ways publicly maintained 

which are open to the public for vehicular 

travel. " 

However plaintiff's exclusive reliance on section 32- 

2156(a) (2), and its interpretation in Leach is misplaced, in 

light of two additional facts present in this case. The record 

reveals the intersection in question had no signs marking it as 

such to warn against passing. Additionally, within the intersection and for some distance on either side, U.S. Highway 10 

displayed a broken yellow median line, indicating a passing 

zone. ~hus the directive of section 32-2156(a)(2), and the 

markings on U.S. Highway 10 at the intersection are in direct 

conflict. The question becomes, which takes precedence. 

This Court answered this very question in Faucette v. 

Christensen, 145 Mont. 28, 36, 37, 400 P.2d 883, where, in a 

similar fact situation, a car attempting to pass within an 

intersection marked for passing, struck the left turning car in 

front of it. In Faucette the Court noted that sections 32-2133 

and 32-2134, R.C.M. 1947, vested in the Montana Department of 
Highways the authority to adopt a system of traffic control 

devices and to discretionarily place them on state highways 

as a 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 intersection marked by the highway commission as 

authorized and adopted as heretofore described. 

Such reasoning gives meaning to all of the statutes heretofore cited and to regulations adopted 

thereunder. 

"In the instant situation, a driver can follow 

the directions of markings and signs, and in doing 

so is not in violation of section 32-2156." 

The Court affirmed this position in Graveley v. Springer, 145 

Mont. 486, 402 P.2d 41. 

Plaintiff cites Rader and Gamrnel in an apparent effort 

to place the Faucette rule in doubt. We find both of these 

cases to be distinguishable from Faucette and thus from the 

instant case. 

Rader involved this Court's affirmance of a nonsuit 

granted by the district court where the plaintiff collided with 

the defendant's car while attempting to pass, 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 to Faucette. 

In Gammel, decided subsequent to Faucette, the defendant was found to be negligent in attempting to pass 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 to pass within the intersection but that 
he failed to exercise due care in doing so in view of his high 

rate of speed, lack of audible signal, and ignorance of facts 

which would have led a reasonable man to proceed with caution. 

Since Rader and Gamrnel are distinguishable, the rule 

established in Faucette and reiterated in Graveley is controlling 

in the disposition of the issue before us. Therefore offered 

Instructions No. 11 and No. 12 were properly refused by the 

district court. 

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 to the jury on contributory negligence was not 

proper. Specifically, plaintiff claimed he did everything necessary to make a legal and safe turn at the intersection, including turning on his left turn signal. 

From examination of the record we do not agree with 

plaintiff's contention. 

The basic dispute here, as it concerns contributory 

negligence, centers around whether plaintiff's left turn signal 

was in fact on immediately prior to the accident. If it was 

not, the issue of contributory negligence was properly raised. 

Section 32-2167, R.C.M. 1947, requires a turn signal to be given 

for at least 100 feet immediately prior to turning at an intersection. Under the facts of this case, failure to comply with 

this statutory section could properly be considered in determining 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 since under 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 left turn, defendant's act of passing could properly be held 

to be the proximate cause of the accident under the Faucette 

rule, as interpreted in Gammel heretofore discussed. 

The record reveals that plaintiff testified he began 

signaling for a left turn approximately 400 yards before the 

intersection. Defendant testified that at no time did he see a 

turn signal on plaintiff's car prior to the accident. Patrolman 

Bernard Barton, the highway patrolman who investigated the accident, stated he saw the left blinker 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. At the time I seen them they were 

on and this was 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 

little bit and more or less headed for the unit I 

seen it then. 

"Q. When you first observed 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 first recollection I have is later on." 

(Emphasis supplied. ) 

On redirect, the following questions and answers 

are noted: 

"Q. And, I believe you testified that when you 

first observed the accident did you observe the 

car when you first arrived there? A. No I did not. 
"Q. And why was that? A. It was on account of 

the truck of the side from where I had 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." 

(Emphasis supplied. ) 

- 

The fact that patrolman Barton walked right past 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 determine whether the turn signal 

was in fact on but rather, we may only determine whether 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; Shields v. 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