No. 12440 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

CUSTER BROADCASTING CORPORATION, Plaintiff and Appellant, -vs

# - KEVIN BREWER, Defendant and Respondent.



## ................................................. DAVID RIVENES, Plaintiff and Appellant, -vs

# - KEVIN BREWER, Defendant and Respondent.



## ................................................. ELLA 

### RIVENES, Plaintiff and Appellant, -vs

# - KEVIN BREdER

## , Defendant and Respondent.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge Presiding. Counsel of Record: For Appellants: Kenneth R. Wilson argued, Miles City, Montana Roland V. Colgrove, Miles City, Montana For Respondents: William R. McNamer argued, Billings, Montana Charles

### cashmo more argued, Billings, Montana

Submitted: November 26, 1973

Filed: 

### JAN 3,

### 6

### 1974 

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c irkI4r. Justice John Conway Harrison delivered the Opinion of the Court.
Plaintiffs Custer Broadcasting Corporation, David R.ivenes and Ella Rivenes appeal from a judgment for defendant Kevin Brewer, entered inthe district court, Treasure County. The action was for damages arising out of a rear end automobile collision. Judgment was based on a jury verdict. Motion fornew trial
was denied and plaintiffs appeal. Each plaintiff set forth a separate action for damages against defendant. On motion under Rule 42(a), M.R. Civ.P., all three caseswere joined for trial. Plaintiffs David and Ella Rivenes arehusband and wife who reside inMiles City, Montana. At the time of the accident both were intheir latefiftiesand for a number of years had worked together invarious business enterprises. David was president and manager of Custer Broadcasting Corporation and
owner of 

### 35%of 

### its stock, Ellawas secretary of the corporation, but not a stockholder. They jointly owned the Eastern Montana Abstract Co, The automobile drivenby David 

### at the time of the accident was o-med by Eastern Montana Abstract Co. In January 1971, David and Ella were traveling from Miles City toBillings, Montana. The purpose of their tripwas twofold (1) to send a video tape recorder by airto the factory tobe repaired, (2) David was to take a plane east. Ellawas toreturn the car toMiles City. The visibilitywas good, except for a skiff of snow on the highway which caused some problems when cars passed. Prior to the accident, plaintiffs had been following 

### a semi-trailer and both vehicleswere travelingbetween 50 and 

### 55 miles per hour. The semi-trailer kicked up a swirlof snow behind itwhich obscured the view of the entire truck body. David testifiedhe was drivingwith his lights on during the entire journey

# .Defendant Brewer came onto the highway west of Forsyth, Montana, and was traveling toHysham, Montana. Upon coming onto the highway, he noted the Rivenes car ahead of him and followed it for several miles ata distance of about a block. He also noted the semi-trailer ahead of the Rivenes car and that it was kicking up a 

### swirlof snow. Brewer testified a vehicle coming from the

### west passed the Rivenes vehicle and his vehicle, causing the snow to 

### swirl so that visibilitywas zero; that this occurred ina cut area; that he slowed down from 

### 50 to

### 40 miles per hour; and, that he never saw the Rivenes car again untilhe hit it from the rear. The collision threw the Rivenes car through the opposite lane of traffic and into thebarrow pitwhere it came torest pointed inthe opposite direction than it had been traveling. Both Rivenes testified that after the accident defendant came to

II their car and said: I am sorry. It was allmy fault. I didn't
see you." Defendant denied making that statement. The investigation of the highway patrolman after the accident indicated therewere no skid marks made by defendant's car prior to the rear end collision. The patrolman's report of the accident showed that defendant inanswer toa question of how fast he was traveling atthe time of the collision, stated: "Fly accident report shows 

### 55. II At the close of evidence at trial, plaintiffs moved (1) for a directed verdict for allplaintiffs, 

### (2) to strike the defense of contributorynegligence, and 

### (3) to strike as to Ella Rivenes the defense of joint enterprise orjoint venture. Defendant moved todismiss allactions. Allmotions were denied by the court and the casewas submitted to thejury. Considering the propriety of granting a directed verdict, this Court inHolland v. Konda, 142Mont. 

### 536, 541, 385 P.2d 272, stated:'""NO case should ever be withdrawn from the jury when reasonable men might draw different conclusions from the evidence. " [Citing case] 

### his rule 

### is firmly established by other decisions of this court, and we feel that further citation on the point isunnecessary. I 'I However, incases where a driver of a vehicle 

### is following another vehicle too closely, we follow the doctrine that the primary duty of avoiding a collisionrests upon the following driver. In Farris and Seneca1v. Clark, 158 Mont, 33, 37, 487 P.2d 1307, a recent rear end collision case, this Court sustained the trialcourt's decision to grant summary judgment for plaintiffs. There we reviewed the fact situationnot unlike the instant case, except that here itwas a daytime accident and inFarris itwas nighttime. We noted that sections 32-2153 and 32-2160, R.C.M. 1947, were applicable. This Court has long held that violation of a statuteconcerned with highway traffic isnegligence as a matter of law. Farris should have controlled the court's decision inconsidering plaintiffs' motion for a directed verdict. In view of the fact that plaintiffs' motion for a directed verdict should have been granted, we willnot listor discuss the issues raised on appeal. The cause 

### isremanded tothe district court for trial on damages alone. 

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