No. 12396 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

KAREN RUSK, Plaintiff and Appellant,

-vs

# - ELOISE P. SKILLMAN,Defendant and Respondent.

Appeal from: District Court of the FirstJudicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Berger, Anderson, Sinclairand Murphy, Billings,

Montana. Arnold Berger argued, Billings, Montana. For Respondent: Pedersen and Herndon, Billings, Montana. Donald Herndon argued, Billings, Montana.

Submitted: May 31, 1973

Decided:

## JUL

## 241973 Filed: 

### JuL

## 24

## 1973Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is a guest passenger personal injury action against the driver of the automobile inwhich plaintiff was a passenger tried in the district court of Broadwater County. The court on August 9, 1972, ordered dismissed the claimagainst defendant Carlton Sherwood, by stipulation of allparties. On September 22, 1972, the court made findings of fact and conclusions of law and entered judgment for defendant Eloise Skillman. From thatjudgment plaintiff Karen Rusk appeals. From the trialrecord it appears the automobile accident which is the subject of this litigation occurred on June 21, 1969, atabout 1:00 p.m. on 

### U.S. Highway 12near thewest end of the Missouri River bridge, approximately one mile northwest of Townsend, Montana. The morning of June 21, 1969, Eloise Skillman and Karen Rusk left their respectivehomes inLivingston and proceeded in Ifiss Skillman's car toHelena by way of Townsend. The tripwas
a pleasure outing and Miss Rusk incidentally intended to look atan automobile inHelena which her fatherwas considering buying. Miss Rusk contributed 

### $5 toward gasoline expense and Miss Skillman drove her automobile, a 1966 Buick which shehad purchased some ten days earlier. Immediately prior tothe accident, 

### Miss Skillmanwas proceeding out of Townsend toward Helena and, according to the trial court's findings of fact, exceeding the posted 55 mileper hour speed limit inthat area, but was not going inexcess of 65 miles per hour. Miss Skillman contended that as she approached the Missouri River Bridge she was unable to see a vehicle driven by Carlton Sherwood atthe opposite end of thebridge until shewas almost upon the bridge. The Sherwood vehiclewas either stopped

or proceeding very slowly, preparatory tomaking a lefthand turn onto a gravel road. This gravel road 

### isknown as the Indian Creek Road and connects with U.S. Highway 12near thewest endof the Missouri River bridge. 

### Miss Skillman testified that upon seeing the Sherwood vehicle and realizing it was stopped she braked her vehiclehard and swerved left toavoid the Sherwood vehicle. She stated she believed her carwent crassways between the two traffic lanes and she never saw the vehicle driven by Reed Palmer inthe oncoming lane of traffic. She collidedwith the Palmer vehicle. Reed Palmer testified that immediately prior to the collisionhe was approaching the bridge, proceeding east toward Townsend at a speed of about 

### 55 milesper hour. He first observed the Sherwood vehicle slow down as itwas proceeding 

### west and the driver gave an arm signal indicating a lefthand turn. He stated that ashe came near the Sherwood vehicle he observed the Skillman vehicle come over the far end of the bridge, apparently going at a high rate of speed. Palmer testified that he then began to slow down and, upon observing the Skillman vehicle continue torapidly approach him, he slammed on his brakes and attempted to swerve but collided with the Skillman vehicle. The collision occurred inhis lane of traffic. The Sherwood vehicle

was not involved in the collision. A Montana highway patrolman who investigated the accident testified that the length of the skidmarks leftby the Skillman vehicle was about 180 feet and the collision occurred on the side of the highway properly occupied by the Palmer vehicle. The patrolman issued a traffic citation to

### Miss Skillman for operating her vehicle ata speed in excess of the safe speed having due regard for the circumstances then and there existing. Plaintiff brings several issues forreview, most relate to specific findings of fact made by the trialcourt which she maintains were not supported by substancial evidence before the court. The remaining issues concern whether the court was correct indesignating 

### Miss Rusk a "guest passenger" and whether the court was correct in finding

### Miss Skillman guilty of ordinary rather than gross negligence.The trialcourt's designation of Miss Rusk as

### a "guest passenger" rather than a "passenger forhire" 

### is a correct application of section 32-1113, R.C.M. 1947. Under section 32-1113,

I' if the passenger 

### is riding in saidmotor vehicle 

### as a guest or by invitation and not forhire" the proof of gross negligence rather than ordinary negligence isrequired toestablish liability. In an action forpersonal injuries resulting from an automobile accident where it appears that plaintiff accepted an invitation to accompany defendant on 

### a trip, theburden 

### is on the plaintiff to show any change inrelationship by virtue of subsequent agreement. Copp v. Van Hise, 119 F.2d 691. No testimony was introducedby Miss Rusk to indicate her 

### $5 contribution was anything more than an incidental, friendly gratuity rather than legal consideration for services tobe rendered. As to theremaining issues forreview, we find merit in plaintiff's contention that the trialcourt went outside the evidence properly before it tomake findings of fact concerning the inherentlyhazardous condition of the highway as maintained by the state. Conversely, we find from examination of the trialrecord, there was sufficient evidence, considered as a whole, before the court toestablish that Miss Skillman's operation of her vehicle immediately prior to the accident constituted "gross negligence" and that such gross negligence was the proximate cause of the injuries sustained by Miss Rusk in the accident. We agree, as a general proposition, highway intersections with gravel roads and bridge abutments along highways are settings where accidents occur more frequently than otherhighway areas. However, it does appear from the trialrecord, particularly the testimony of the highway patrolman, that had Miss Skillman 

### (1) been observing the posted speed limitin the area of the accident, (2) maintained a proper lookout inorder to observe the Sherwood vehicle when it first came intoher line of vision, 

### (3) appliedher brakes atthe point where she testified she first saw the Sherwood vehicle (which appears tobe some considerable distance ahead of the point her skid marks began toappear on the highway), and 

### (4)guided her vehicle tothe right hand shoulder of the highway rather than veering to the left and into the oncoming lane, she could have avoided the accident in Palmer's lane of traffic. Legal writers repudiate the entirepremise that the concept of "negligence" can and should be delineated into degrees. Prosser, Law of Torts, 4th Ed., Ch. 

### 5, 534, p. 182, states: "Nevertheless, the idea of degrees of negligence, or atleast some kind of aggravatednegligence which will result inliabilitywhere ordinary negligence

### willnot, has been adopted ina number of statutes, which have forced the courts,however reluctantly, to attempt to do again what they declared that they could not do, and tomake such efforts asarepossible to supply a definition for the undefinable. Some of these statutes have attempted tocodify the entire doctrine, or apply it toparticular situations such asbailments, criminal negligence, orcontributory negligence cases. Most of them, however, are automobile guest statutes.II Montana's automobile guest statuteplaces the task upon the courts todefine theundefinable in differentiatingbetween "ordinary" and "gross" negligence. The concept of gross negligence, as it has developed by precedent and application, shows

a dichotomy between civil tort law and criminal law. Such

II definitional terms as malignant mind" and "willful and wanton disregard of consequences" are applied only to the criminal concept.Holland v. Konda, 142Mont. 536, 

### 543, 385 P.2d 272, provides

an example of automobile tort gross negligence: "AS the plaintiff*wasa guest in the car of appellant Konda, the duties owed her by the driverwere governed by R.C.M. 

### $5 32-1113 to 32-1115, inclusive. The substance of these provisions is that the guest assumes, asbetween himself and the driver, the ordinarynegligence of the driver. Thus, inorder for the driver to be liable indamages tothe guest, his actions must be I those which are termed 'grossly negligent. This court I had defined ross negligence as the failure touse sliht care.' Batchoff v. Craney, 119 Mont. 15/, 1.12 *(Emphasis added).See also: Heen v. Tiddy, 151Mont. 265, 442 P.2d 434. Nangle v. Northern Pacific Ry. Co., 96 Mont. 512, 522, 32 P.2d 

### 11, states:

11tGross negligence' and 'reckless operation' are variously defined by different courts. Most, if not all, of them are of littleassistance in the classification of various states of factswithin orwithout such definitions. Under the construction of this statuteherein announced, whether 'gross negligence' and 'reckless operation' are synonymous or said tobe different inmeaning one from the other isimmaterial, for if the conduct of the driver of the automobile was in fact something more than ordinary negligence, it matters not, under the Act inquestion, [Montana Automobile Guest Statute1 - - by what name it 

### iscalled, arby what adjective it may be described; the defendant isnevertheless liable.

## " (Emphasis added). See also: Carter v. Miller, 140 Mont. 426, 372.~.2d 421. Applying "failure to use slight care" and "something more than ordinary negligence" to the facts of the instant case, we must determine that the acts and omissions of defendant Skillman, considered in their entirety, constitute gross negligence and impart liabilitytoher. The judgment 

### is reversed and the cause remanded to the district court for trial on the

JusticeINTHE SUPREME COURT 

### OF THE STATE 

### OF MONTANA

-No, 12396

KAREN RUSK,Plaintiff and Appellant,

VS

# . ELOISE P. SKILLMAN, Defendant and Respondent

ORDER 

### AMENDING OPINION 

### AND DENYING PETITION 

### FOR 

### REHEARING

PER CUIBICAM: ~es~ondent 

### 's petition for rehearing 

### in the above 

### entitled matter 

### ishereby denied. It appearing that surnmry judgment was entered by the trial court prior to presentation of defendant 

### SkfPHman's defense herein, ITIS ORDERED that the Opinion dated 

### July 24, 1373, be amended by striking the final sentence of the 

### Opinion and 

### substituting the following therefor:

1tThe summary judgment against defendant Skillman 

### isvacated and the cause against that defendant is remanded tothe district court for 

### a new trial on all issues,I1 DATED this 15thday of October, 

### 1973.