NO. 87-459 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

DAVID ALARIC PALMER, a protected 

person, by MARTHA ROSE DIACON, his 

conservator, 

Plaintiff and Respondent, 

-vsFARMERS INSURANCE EXCHANGE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Smith, Baillie & Walsh; William J. Gregoire argued, 

and James R. Walsh argued, Great Falls, Montana 

For Respondent: 

Dennis P. Conner argued, Great Falls, Montana 

John C. Risjord, Kansas City, Missouri 

Submitted: August 9, 1988 

Decided: September 13, 1988 

Filed: 5EP 1 3 198' 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

The defendant, Farmers Insurance Exchange, appeals a 

9-3 jury verdict from the Eighth Judicial District, Cascade 

County, finding it liable for $50,000 under two uninsured 

motorist policies to cover a motorcycle accident in which 

David Alaric Palmer suffered head injuries. 

Palmer was injured on June 10, 1984, when his 

southbound 750-cc motorcycle went off the east side of U.S. 

89 approximately fifteen miles north of White Sulphur 

Springs, Montana. His family subsequently filed claims for 

$25,000 in uninsured motorist protection on each of two 

policies issued by the defendant, claiming that a red semi 

tractor-trailer travelling north had forced Palmer off the 

road and had not stopped after the accident. The 

defendant refused the claims. It cited the Highway Patrol 

officer's report that attributed the accident to Palmer's 

recklessness and excessive speed. Neither Palmer, who is not 

able to recall the accident, nor the driver of the 

tractor-trailer, who was never identified or located, 

testified. 

Serena Diacon was riding as a passenger on Palmer's 

motorcycle at the time of the accident and suffered only cuts 

and bruises. She testified at trial that Palmer was driving 

south at about 50 m.p.h. when they came to a right-hand curve 

in the highway. On the east side of this curve (to the left 

of Palmer's southbound motorcycle), Stud Horse Road enters 

the highway. Serena testified that Palmer was about two and 

one-half feet from the center line in his proper lane when 

she looked over Palmer's shoulder and saw the tractor-trailer 

"half in our lane and half in their lane." This northbound 

tractor-trailer, which was straddling the center line of the 
highway, was travelling between 60 and 70 m.p.h., Serena 

testified. She said she ducked behind Palmer and braced 

herself as he swerved to the left; she could not say whether 

Palmer passed in front of or behind the tractor-trailer. The 

motorcycle travelled across the northbound lane of traffic, 

across the approach to Stud Horse Road, and flew off an 

adjacent embankment in pretty much of a straight line. 

The only other witness to testify as to the position of 

the tractor-trailer was Frank Atchison, a water truck driver, 

who was following the tractor-trailer some 100 yards back. 

His testimony was that the tractor-trailer was so far to the 

right side of its proper lane of travel that it kicked up 

dirt and dust as it passed over the approach to Stud Horse 

Road. Through that dirt and dust, Atchison said he saw a 

"flash" that he thought was a motorcycle going off the road, 

but did not know whether it passed in front of or behind the 

tractor-trailer. Atchison stopped at Stud Horse Road, where 

he had planned to turn off originally, and helped Serena 

Diacon as she climbed up the embankment. Atchison testified 

that he was gaining on the tractor-trailer when the accident 

occurred and was driving 45 m.p.h. Thus, he said he believes 

the tractor-trailer was travelling no faster than 40 m.p.h. 

and believes the motorcycle was travelling more than 55 

m.p.h. The defense presented other witnesses who testified 

that a red tractor pulling a trailer stopped several hundred 

yards north of the accident scene to inform them that he 

thought he had seen through his side mirrors a motorcycle 

going off the road behind him. 

The investigating Highway Patrol officer diagrammed the 

scene and measured skid marks. He testified that the 

motorcycle's skid marks started just east of the center line 

(in the northbound lane), and extended in roughly a straight 

line off and on for 90 feet before reaching the dirt road, 
and then the embankment. His measurements show that the 

motorcycle was airborne for twenty-eight feet from this point 

and rolled another twenty-four feet. The patrolman did not 

learn of the tractor-trailer's alleged involvement in the 

accident until one day later, when he talked to Serena. 

However, he inspected both lanes of traffic on the day of the 

accident and found no skid marks or other signs that a 

northbound vehicle had braked suddenly or hit any object. He 

testified that this indicates the motorcycle passed behind 

the tractor-trailer. Although his original report said the 

accident was caused by Palmer's excessive speed, he said at 

trial that he no longer has an opinion as to the cause of the 

accident. 

The plaintiff presented various experts to testify as 

to the speed of the motorcycle. Professor Denman Lee, a 

Montana State University physicist, testified that the length 

of the skid marks, the height of the embankment, and the 

distance of flight indicated the motorcycle was travelling 

about 28 m.p.h. when it became airborne as it left the 

embankment, and about 48 m.p.h. at the point on the highway 

where it started to leave skid marks. Robert "Evil" Knievil, 

a motorcycle stunt driver, testified that had the motorcycle 

been travelling more than 25-30 m.p.h. when it left the 

embankment it would have been airborne farther. Also 

introduced as evidence were ambulance reports that indicated 

Palmer had been injured when his motorcycle left the road "at 

a moderate rate of speed" and a physician confirmed that 

Palmer's injuries were consistent with moderate speed, over 

defense's objection that such testimony was impermissible 

hearsay as well as irrelevant. 

The defendant raises these issues: 
1. Did the District Court err when it allowed medical 

evidence concerning the injuries even though the defendant 

had stipulated to the severity of the injuries? 

2. Did the District Court err by allowing the 

plaintiff to display cer.Laim vfdeo tapes to the jury? 

3. Did the District Court issue an improper "sudden 

emergency" instruction? 

4. Did the District Court err in computing prejudgment 

interest? 

We affirm on all counts except for the last one. We 

remand the court's order granting prejudgment interest for a 

new order consistent with this opinion. 

This case presented difficulties in proof for both 

parties. In a sense each party was attempting to prove a 

negative since Palmer was asserting an unidentified 

tractor-trailer driver, not he, was responsible for the 

accident. In turn, the defendant asserted that this same 

unidentified tractor-trailer driver was nowhere near the 

center line of the highway, let alone straddling or crossing 

it. The jury voted 9-3 to accept Palmer's version. 

This Court presumes the verdict of a jury properly 

instructed on the law to be correct and will accept the 

evidence in a light most favorable to the prevailing party. 

Mountain West Farm Bureau Insurance v. Girton (Mont. 1985), 

697 P.2d 1362, 1363, 42 St.Rep. 500, 501. We do not disturb 

lightly the verdict of a competent jury, Gee v. Egbert 

(1984), 209 Mont. 1, 18-19, 679 P.2d 1194, 1203. Instead we 

determine if substantial credible evidence exists in the 

record to support that verdict and, if such evidence exists, 

to affirm. Clark v. Norris (Mont. 1987), 734 P.2d 182, 

184-85, 44 St.Rep. 444, 445; Gibson v. Western Fire Insurance 

Co. (Mont. 1984), 682 P.2d 725, 736, 41 St.Rep. 1048, 1058; 

Wilhelm v. City of Great Falls (Mont. 1987), 732 P.2d 1315, 
1321, 44 St.Rep. 211, 218. However, we emphasize that 

because the questions of fact in this case are so close, we 

will afford the jury that heard the evidence the utmost 

discretion. This is not to be read as an endorsement of the 

jury's verdict since we may well have decided differently on 

the facts of the case. 

Medical Evidence 

Dr. William Tacke, a rehabilitation specialist, 

testified that initial ambulance reports and emergency room 

records from the White Sulphur Springs Hospital indicate that 

Palmer had suffered no fractures and that the bones of his 

face and skull were not damaged in the accident. He also 

testified that admission records from the Montana Deaconess 

Medical Center in Great Falls showed no thoracic or spinal 

in juries. Dr. Tacke testified that such results are 

consistent with a moderate rate of speed and describes 

Palmer's injury as a "closed-head injury," which is where 

brain damage occurs without a skull fracture. The defendant 

objected to this witness' testimony claiming that liability 

was the only question at issue before the jury and such 

medical evidence is not probative of which driver was at 

fault. It also argued that the testimony represented 

impermissible hearsay. 

As the physician in charge of Palmer's rehabilitation, 

Dr. Tacke may testify concerning health records made by other 

health professionals if he has relied on them in forming 

opinions or inferences. Klaus v. Hillberry (1971), 157 

Mont. 277, 285-86, 485 P.2d 54, 58-59; In the Matter of the 

Mental Health of G.S. (Mont. 1985), 698 P.2d 406, 409-10, 42 

St.Rep. 451, 454-55; Garza v. Peppard (Mont. 1986), 722 P.2d 

610, 613, 43 St.Rep. 1233, 1237; Rule 703,M.R.Evid. Dr. 

Tacke first saw Palmer as a consultant for neurologists who 
were treating him and later worked with Palmer when he was 

deemed stable enough for rehabilitation. In these roles he 

used other physicians' records, charts, and reports to treat 

Palmer. When the physician uses other professionals' reports 

to advise a patient or to provide care, any hearsay objection 

to those reports fails. Ankenny v. Grunstead (1976), 170 

Mont. 128, 133-34, 551 P.2d 1027, 1031. Thus, the 

defendant's hearsay objection to the physician's testimony 

was properly denied. 

The physician's testimony also was relevant to the 

case. Besides noting that the injuries were consistent with 

moderate speed, the physician also testified that Palmer 

suffers from post-traumatic amnesia and remembers nothing 

about the accident. Both parties to this suit attempted to 

prove the other driver was travelling at excessive speed 

while they were driving at a reasonable pace. A lack of 

bodily injuries is useful to show the force of the impact, 

thereby creating an inference as to speed. See, Knuth v. 

Murphy (Minn. 1952), 54 N.W.2d 771, 775. In Goodnough v. 

State of Montana (1982), 199 Mont. 9, 647 P.2d 364, we held 

that the circumstantial evidence that moments before an 

accident the car's occupants were seen miles away relieving 

themselves was admissible to create an inference as to speed 

because its probative value outweighed its prejudicial 

nature. Goodnough, 647 P.2d at 368, citing Rule 403, 

M.R.Evid. In this case, Dr. Tacke's testimony was brief and 

concise. Because defense counsel had the right to 

cross-examine but chose not to do so, we find no prejudice. 

At the conclusion of his rebuttal case, Palmer offered 

Plaintiff's Exhibit 6.1, the White Sulphur Springs Emergency 

Room report; 6.2, a dismissal form from the Montana Deaconess 

dated September 29, 1984; and 6.3 the White Sulphur Springs 

a.mbulance report. The defendant claimed these records lacked 
foundation and were not the best evidence since no custodian 

came forth to verify the records. The District Court 

admitted the records as Rule 803(6) business records 

exceptions to the hearsay rule. 

Ordinarily such documents would not be 

self-authenticating. See Rule 902, M.R.Evid. However, the 

defense had stipulated to the authenticity of a series of 

medical records including these three and had agreed there 

would be no need to call a medical librarian. Exhibits 6.1 

and 6.3, prepared the same day as the accident by trained 

professionals, make no mention of alcohol being present or 

absent from Palmer's system. This serves to rebut a defense 

witness' claim that he smelled alcohol on Palmer as Palmer 

lay in the ditch after the accident. 

The defense asserts on appeal that its concession that 

such records are authentic does not by itself make the 

medical reports admissible. The fact that it had agreed that 

neither side would need to call a records custodian and had 

opened the door on evidence concerning alcohol eliminates any 

harmful error in admitting this evidence. Under these 

particular circumstances we will affirm on this issue since 

the defense has been unable to identify any specific portion 

of the reports as inaccurate. 

Plaintiff's Use of Video Tapes 

Defendant argues that the District Court erred when it 

allowed counsel for Palmer to use Plaintiff's Exhibit 11 as a 

demonstration and to enter Exhibit 23 into evidence. Exhibit 

11 shows Evil Knievil driving southbound through the curve at 

various speeds on a 750-cc motorcycle. Exhibit 23 was a 

video tape made by the defense attorneys for their use in 

preparing their case. It shows the curve from different 
angles and at one point the camera is mounted on the 

dashboard of a car as it drives through the curve. 

We deal first with Exhibit 11. 

This tape was shot from the shoulder on the east side 

of the highway directly adjacent to the northbound lane of 

traffic. The first several seconds of this video tape show a 

semi-tractor and trailer driving in a northerly direction in 

the wrong lane of traffic. It is apparent from the video 

tape that the right inside rear wheel of the trailer is 

tracking along the center line of the highway. This places 

the left side of the tractor and trailer well within the 

southbound lane. This tractor-trailer was - not hired as part 

of a reconstruction or demonstration; it just happened to be 

driving through the area as the tape was made. 

Serena Diacon testified that the tractor-trailer shown 

in this tape occupies "the exact position" on the road as the 

red tractor-trailer occupied on the day of the accident. She 

voiced this opinion after viewing this video tape two times 

almost three years after the accident. Serena admitted in 

voir dire by defense attorneys that she had seen no other 

tapes of trucks on that curve from which to choose which best 

represented the position of the red tractor-trailer. She 

also noted that she saw the red tractor-trailer on the day of 

the accident from the front and this video tape showed the 

truck from behind. However, she said she knew the 

tractor-trailer on the tape was in the same position by 

looking at the center line as it appears beneath the truck. 

The defense objected to this demonstration as prejudicial and 

lacking foundation. 

Exhibits used for demonstration purposes are admissible 

if they supplement the witness' spoken description of the 

transpired event, clarify some issue in the case, and are 

more probative than prejudicial. Workman v. McIntyre 
Construction Co. (Mont. 19801, 617 P.2d 1281, 1291, 37 

St.Rep. 1637, 1650, citing 29 Am.Jur.2dI Evidence 5 785. 

Movies are considered to be reliable if they are accurate and 

relevant with any change in circumstances explained. Brown 

v. North American Manufacturing Co. (19781, 176 Mont. 98, 

117, 576 P.2d 711, 722. The admission of such evidence lies 

solely in the discretion of the District Court and we will 

not reverse unless a manifest abuse of discretion is shown. 

Brown, 576 P.2d at 722. A focal question in this case 

concerns where the red tractor-trailer was located on the 

highway prior to the accident. Since Serena testified that 

this video tape shows that location it is relevant. 

Questions concerning this video tape go not to its 

admissibility for demonstrative purposes, but rather to the 

weight to be given it. 

As it admits or rejects various pieces of evidence, the 

District Court must bear in mind Rule 403, M.R.Evid.: 

Although relevant, evidence may be 

excluded if its probative value is 

substantially outweighed by the danger 

of unfair prejudice, confusion of the 

issues, or misleading the jury, or by 

considerations of undue delay, waste of 

time, or needless presentation of 

cumulative evidence. 

To reduce the prejudicial effect of Exhibit 11, the 

District Court admonished the jury before Serena testified: 

THE COURT: Ladies and gentlemen, prior 

to the testimony of this witness, I want 

to read you a cautionary instruction. 

"During the next witness' testimony, you 

will see a video demonstration which the 

Court has ruled may be shown. This 

video tape was taken by the Plaintiff's 

attorney approximately two-and-a-half 

years after the accident. 
"The video tape shows a semi truck and 

trailer over the center line on U.S. 

highway 89 approaching the Stud Horse 

intersection from the south. It is 

offered only to demonstrate visually the 

testimony of Serena Diacon. You are not 

to consider this video tape for any 

other purpose. It is not allowed for 

the purpose of showing that there is any 

general tendency for semi trucks to 

cross the center line on the curve in 

question. In viewing the video, you 

should consider the effect that the 

location of the camera operation had on 

the path taken by the semi. You should 

also consider the presence of a vehicle 

on the right side of the highway." 

This admonition advises the jury that Exhibit 11 is 

only a visual illustration of a part of Serena's testimony 

and that it must be considered along with all other evidence 

and that it is not proof that trucks routinely cross the 

center line. In addition, the jury is told to consider what 

effect the position of the camera had on the path of the 

truck. This admonition is proper and serves to alleviate any 

prejudice in Exhibit 11. We find no abuse of discretion in 

admitting it for demonstrative purposes. 

The video tape labeled Plaintiff's Exhibit 23 was made 

the day that surveyor Herbert Sherburne measured the curve 

for defendants but Sherburne testified that he had no role in 

producing the video tape and had never viewed it until the 

day he testified. Sherburne testified that his measurements 

show the vigilant driver approaching the curve from the north 

would have been able to see a 13-foot 4-inch high semi truck 

and trailer 750 feet away from the point Palmer's skid marks 

began. 

Palmer introduced the exhibit through Sherburne in 

order to impeach his calculation. The defense objected to 

this use of Exhibit 23 because Sherburne had. not made the 
video tape, knew little about photography and was not aware 

of what type of lens was used to make the video tape, could 

not locate his survey stakes on the video tape and could not 

be expected to determine distances on a two-dimensional 

screen. The District Court cited the video tape's probative 

value, overruled the objection, and directed plaintiff to 

show the video tape at normal speed. 

Sherburne need not be the maker of the video tape to 

introduce it. Pickett v. Kyger (1968), 151 Mont. 87, 97, 439 

P.2d 57, 62. A video tape will be allowed as long as it 

shows a true representation of the scene at the time in 

question or any difference is explained. Lamb v. Page 

(1969), 153 Mont. 171, 176-77, 455 P.2d 337, 340; Pilgeram v. 

Hass (19461, 118 Mont. 431, 449, 167 P.2d 339, 348. Because 

the defendant's witness had testified a driver in Palmer's 

lane should have been able to see a truck 750 feet away, 

Palmer had the right to test the witness on that assertion 

and to impeach him if he could. 

To do this Palmer played Exhibit 23, which at one point 

showed a tractor-trailer driving north and negotiating the 

curve. As this truck moved, Palmer's counsel on several 

occasions froze the frame on the tape so he could ask 

Sherburne how far away the truck was and whether it was in 

its proper lane of travel. On three occasions when counsel 

for Palmer asked Sherburne to indicate what distance on the 

screen represented 750 feet the defense objected and was 

sustained by the court. On another occasion when counsel for 

Palmer asked Sherburne if anything had been edited out of the 

tape, the defense objected and was sustained. By doing so 

the District Court exercised its discretion not only in 

permitting the video tape into evidence but also in policing 

the cross-examination. We find no manifest abuse of 

discretion that would warrant reversal. 
In rejecting this issue of defendant's appeal, we rely 

on what appears to be the fair application of discretion by 

the District Court. The defendant makes a strong argument 

that these video tapes were not intended to demonstrate any 

witness' testimony or impeach any other witness so much as 

they were intended to constantly display to the jury a 

tractor-trailer either over the center line or right up 

against the center line. We will not pass judgment here upon 

that. The District Court's prompt and effective use of 

discretion in this case protected the relevancy of this 

evidence from damaging prejudice. 

Instruction No. 13 

The defendant claims the District Court improperly gave 

a sudden emergency instruction. Instruction No. 13 read: 

The following traffic regulations of the 

State of Montana are designed to enhance 

safety on the public highways of this 

State: 

"1. A vehicle shall be driven as 

nearly as practicable entirely 

within a single lane and shall not 

be moved from such lane until the 

driver has first ascertained that 

such movement can be made with 

safety. 

A person operating or driving a 

vehicle of any character on a 

public highway of this State shall 

drive it in a careful and prudent 

manner so as not to unduly or 

unreasonably endanger the life, 

limb, property, or other rights of 

a person entitled to the use of 

the street or highway. 

3. A person operating or driving a 

vehicle of any character on a 

public highway of this State shall 
drive it in a careful and prudent 

manner, and at a rate of speed no 

greater than is reasonable and 

proper under the conditions 

existing at the point of 

operation, taking into account the 

amount and character of traffic, 

condition of brakes, weight of 

vehicle, grade and width of 

highway, condition of surf ace and 

freedom of obstruction to view 

ahead, and he shall drive it so as 

not to unduly or unreasonably 

endanger the life, limb, property 

or other rights of a person 

entitled to the use of the street 

or highway." 

If you find that the unidentified truck 

driver or David Palmer violated one of 

the statutes just read to you, you will 

find that such violation was negligence 

unless on behalf of such party its [sicl 

is proven by a preponderance of the 

evidence that he did what might 

reasonably be expected of a person or 

ordinary prudence [sic], acting under 

similar circumstances, who desired to 

comply with the law. In order to 

sustain such burden of proof, such party 

must prove by a preponderance of the 

evidence that he was faced with 

circumstances which prevented compliance 

or justified noncompliance with the 

statute. 

The defendant's objection concerns the final paragraph of the 

instruction. This Court has ruled: 

[A sudden emergency instruction] adds 

nothing to the law of negligence and 

serves only to leave an impression in 

the minds of the jurors that a driver is 

somehow excused from the ordinary 

standard of care because an emergency 

existed. This is not the law. 
Simonson v. White (Mont. 1986), 713 P.2d 983, 989, 43 St.Rep. 

133, 141-42. The use of a sudden emergency instruction was 

"banned" in automobile accident cases. White, 713 P.2d at 

990. 

The instruction read to the jury in the present case is 

more than a sudden emergency instruction. It presents three 

standards of care expected of all drivers of motor vehicles 

and says the failure to live up to the standards by any 

driver constitutes negligence. It requires the jury to 

decide not whether a sudden emergency erupted but whether 

either driver in this case was negligent forcing the other to 

take protective measures. Because it is more concrete than 

the instruction disapproved of in White, 713 P.2d at 989, and 

because it speaks to both drivers, we hold that this 

instruction is one in comparative negligence, not one in 

sudden emergency. 

The defendant points out typographical errors exist in 

the final paragraph but there is no record that any objection 

was made while settling the instructions as to these 

typographical errors or that the jury was confused by the 

typographical errors. The misphrase "person - or ordinary 

prudence" is harmless in the context of the instruction 

because it is clear that the instruction refers to the 

actions of a reasonable person, i.e. the "person - of ordinary 

prudence." There is no appreciable difference and nc harm 

has been done. 

Prejudgment Interest 

The District Court's amended judgment imposes 

prejudgment interest of 10 percent per year from July 13, 

1984, which was 30 days after the claim had first been 

presented. Farmers asserts error since the policy's language 

strictly limits Farmers' liability only to the amount of 
coverage and also because the court misused the statute on 

awarding prejudgment interest. We find this second 

contention persuasive. 

Three conditions must be met before 5 27-1-211, MCA, 

applies. First, there must be an underlying monetary 

obligation; second, the amount of recovery must be certain or 

capable of being made certain by calculation; and third, the 

right to recovery must vest on a particular day. Agri-Lease, 

Inc. v. Gray (1977), 173 Mont. 151, 160, 566 P.2d 1114, 

1118-19; Safeco Insurance Co. v. Lovely Agency (Mont. 1985), 

697 P.2d 1354, 1356, 42 St.Rep. 509, 511-12; Byrne v. Terry 

(Mont. 1987), 741 P.2d 1341, 1343, 44 St.Rep. 1620, 1622. 

When liability is contested, as it was here, the conditions 

fail since no monetary obligation exists until the day the 

jury determines the degrees of comparative negligence. The 

right to recover does not vest until the jury renders its 

verdict. McPherson v. Schlemrner (Mont. 1988), 749 P.2d 51, 

54, 45 St.Rep. 33, 37. Palmer's right to recovery, 

therefore, did not vest until the jury returned its special 

verdict form on March 13, 1987 finding the unidentified 

driver of the red tractor-trailer negligent and Palmer not 

negligent. Palmer has no right to interest before the date 

of the verdict. 

Finally, we note that the parties bifurcated the bad 

faith insurance claim from this matter of liability and the 

bad faith claim is still pending. In his recitation of facts 

on this appeal, Palmer has mentioned that Farmers denied his 

claims in 1984. At that time Farmers claimed its uninsured 

motorist policies did not take effect unless there was 

"physical contact" with a "phantom vehicle." Farmers 

believed such a provision to be lawful at the time. It was 

not until June 19, 1985, one year later, that this Court held 

j.n McGlynn v. Safeco Insurance Co. (Mont. 1985), 701 P.2d 
735, 42 St.Rep. 882, that such a policy provision runs 

contrary to the public policy and therefore is 

unconstitutional. McGlynn, 701 P.2d 733-40. We do not 

believe that Farmers' adherence to a policy it considered to 

be lawful and which was later declared unconstitutional 

establishes any liability upon the insurer for the time 

period before the policy was struck down. We therefore would 

urge counsel for Palmer, if he elects to proceed on the bad 

faith insurance claim, to prosecute that case on allegations 

concerning the insurer's actions subsequent to the McGlynn 

decision. 

Affirmed in part, reversed in part. 

We concur: 

Chief Justice 

Justices 
Mr. Justice Fred J. Weber dissents as follows. 

I dissent from the majority opinion because Instruction 

No. 13 was both unnecessary and confusing. Further, the use 

of a sudden emergency instruction such as the one in the last 

paragraph of Instruction No. 13 was disapproved in White. 

Paragraph 2 of Instruction No. 13 is a statement of law 

that a driver shall drive "in a careful and prudent manner so 

as not to unduly or unreasonably endanger the life, limb, 

property, or other rights of a person entitled to the use of 

the street or highway." Paragraph 3 is a statement of law 

which requires persons to drive "in a careful and prudent 

manner" taking into account the conditions of traffic, the 

vehicle, the surface, and the view ahead. The last paragraph 

of the instruction then states that if one of the parties 

acted in a way which "might reasonably be expected of a 

person [of] ordinary prudence" but which was not in compliance with one of the above laws, there is no negligence. 

Read together these statements seem to excuse a person from 

acting in a careful and prudent manner. That is not an 

accurate statement of law. 

As this Court has stated such an instruction "adds 

nothing to the law of negligence and serves only to leave an 

impression in the minds of the jurors that a driver is somehow excused from the ordinary standard of care because an 

emergency existed." White, 713 P.2d at 989. I would remand 

for retrial without the use of an instruction like Instruction No. 13. 
Mr. Justice L. C. Gulbrandson concurs in the foregoing 

dissent. /' 

Pr ,/i ; 

/' Justice 

Mr. Chief Justice J. A. Turnage concurs in the foregoing 

dissent. 

Chief 

TL~

Justice