No. 12440 

IN THE 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 

d&d$. w c irk 
I4r. 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 in the 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 for new 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 cases were joined for trial. 

Plaintiffs David and Ella Rivenes are husband and wife 

who reside in Miles City, Montana. At the time of the accident 

both were in their late fifties and for a number of years had 

worked together in various business enterprises. David was 

president and manager of Custer Broadcasting Corporation and 

owner of 35% of its stock, Ella was secretary of the corporation, 

but not a stockholder. They jointly owned the Eastern Montana 

Abstract Co, The automobile driven by 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 to Billings, Montana. The purpose of their trip was twofold 

(1) to send a video tape recorder by air to the factory to be 

repaired, (2) David was to take a plane east. Ella was to return 

the car to Miles City. The visibility was 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 vehicles were traveling between 50 and 55 

miles per hour. The semi-trailer kicked up a swirl of snow behind it which obscured the view of the entire truck body. David 

testified he was driving with his lights on during the entire 

j ourney . 
Defendant Brewer came onto the highway west of Forsyth, 

Montana, and was traveling to Hysham, Montana. Upon coming onto 

the highway, he noted the Rivenes car ahead of him and followed 

it for several miles at a distance of about a block. He also 

noted the semi-trailer ahead of the Rivenes car and that it was 

kicking up a swirl of snow. Brewer testified a vehicle coming 

from the west passed the Rivenes vehicle and his vehicle, causing 

the snow to swirl so that visibility was zero; that this occurred 

in a cut area; that he slowed down from 50 to 40 miles per hour; 

and, that he never saw the Rivenes car again until he hit it 

from the rear. 

The collision threw the Rivenes car through the opposite 

lane of traffic and into the barrow pit where it came to rest 

pointed in the opposite direction than it had been traveling. 

Both Rivenes testified that after the accident defendant came to 

I I their car and said: I am sorry. It was all my fault. I didn't 

see you." Defendant denied making that statement. 

The investigation of the highway patrolman after the 

accident indicated there were no skid marks made by defendant's 

car prior to the rear end collision. The patrolman's report of 

the accident showed that defendant in answer to a question of how 

fast he was traveling at the time of the collision, stated: "Fly 

accident report shows 55. I I 

At the close of evidence at trial, plaintiffs moved (1) 

for a directed verdict for all plaintiffs, (2) to strike the 

defense of contributory negligence, and (3) to strike as to Ella 

Rivenes the defense of joint enterprise or joint venture. Defendant moved to dismiss all actions. All motions were denied 

by the court and the case was submitted to the jury. 

Considering the propriety of granting a directed verdict, 

this Court in Holland v. Konda, 142 Mont. 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 is unnecessary. I 'I 

However, in cases where a driver of a vehicle is following another vehicle too closely, we follow the doctrine that the primary 

duty of avoiding a collision rests upon the following driver. 

In Farris and Seneca1 v. Clark, 158 Mont, 33, 37, 487 P.2d 

1307, a recent rear end collision case, this Court sustained the 

trial court's decision to grant summary judgment for plaintiffs. 

There we reviewed the fact situation not unlike the instant case, 

except that here it was a daytime accident and in Farris it was 

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 statute concerned with highway traffic is negligence as a matter of law. 

Farris should have controlled the court's decision in considering 

plaintiffs' motion for a directed verdict. 

In view of the fact that plaintiffs' motion for a directed 

verdict should have been granted, we will not list or discuss 

the issues raised on appeal. 

The cause is remanded to the district court for trial on 

damages alone. 

i I Justice. 
/ @ief Justice - 

Justices. /'