No. 80-149 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

VANESSA ESLINGER and LANETTE ESLINGER, 

individually and as Co-Personal Representatives 

of Estate of Walter and Clare Eslinger, 

Plaintiffs and Appellants, 

VS. 

RINGSBY TRUCK LINES, INC., and STATE 

OF MONTANA, 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Hon. James Wheelis, Judge presiding. 

Counsel of Record: 

For Appellants: 

Morrison Law Offices, Missoula, Montana 

Carey Matovich argued and Joan Jonkel argued, Missoula, 

Montana 

For Respondents: 

Garlington, Lohn and Robinson, Missoula, Montana 

Gary Graham argued, and Paul Meismer argued, Missoula, 

Montana 

J. Michael Young, Dept. of Administration, Helena, 

Montana 

Submitted: September 18, 1981 

Decided : W~V 12 198f 

Filed: K'OV 1 r fgm 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is a wrongful death action in which plaintiffs 

appeal from a final judgment and denial of their motion for 

a new trial of the District Court of the Fourth Judicial 

District, following a jury verdict which found plaintiffs' 

decedent 100 percent negligent and defendants Ringsby Truck 

Lines and the State of Montana to be free of any negligence. 

Plaintiffs appeal as to Ringsby Truck Lines only. 

Walter and Claire Eslinger were killed when a truck 

belonging to Ringsby Truck Lines collided with the Eslinger 

automobile. The truck was driven by an employee, Howard 

Skiles. The accident occurred at 12:15 p.m., January 18, 

1978, on Highway 93 at Ravalli, Montana. The roadway was 

snow covered and slick; the temperature was between 20 and 

25 degrees Fahrenheit. 

The collision occur red near the T- junction formed by 

U.S. Highway 93 and Montana Highway 200. Highway 93 is 

straight and relatively flat through Ravalli but changes as 

the highway proceeds north up Ravalli Hill. The Bison Cafe 

is located on Highway 93, directly adjacent to the accident 

site. Several witnesses were in the cafe and testified 

regarding the accident. 

Walter Eslinger was driving his 1967 Chevrolet down 

Ravalli Hill in the southbound lane of U.S. Highway 93. 

Claire Eslinger was his passenger. At the same time, Howard 

Skiles was driving a 1973 Mack trailer-tractor combination 

in the northbound lane of Highway 93. As the Chevrolet came 

down the hill and crossed the junction, snow-packed ruts at 

the intersection caused the car to fishtail. The parties 

differ sharply from this point in their theories of the 
subsequent events. 

Appellants claimed Eslinger regained control; 

however, the driver of the Ringsby truck abruptly locked his 

brakes and lost control of his vehicle. The trailer jackknifed and the truck skidded across the centerline into the 

southbound lane and the Eslinger vehicle. According to 

appellants, the direct and proximate cause of the collision 

and the wrongful deaths of the Eslingers was the negligence 

of the truck driver in failing to (1) keep a proper lookout; 

(2) maintain reasonable control of the truck; (3) yield one 

half of the roadway; and (4) operate at a reasonable speed. 

Respondent Ringsby claimed that Eslinger lost control 

of his vehicle at the intersection and skidded head-on into 

the truck's proper lane. An integral part of Ringsby's 

theory was the emergency created for the Ringsby driver when 

Eslinger 's vehicle began to fishtail. Ringsby claimed the 

momentary application of the truck's brakes was an 

appropriate response to a perilous situation. The emergency 

instruction given was therefore proper. 

Howard Skiles, the truck driver, did not appear at 

trial. His testimony was entered by deposition. 

Several witnesses testified that the Eslinger vehicle 

was fishtailing prior to the accident. The truck driver's 

testimony by deposition of his perceptions and actions is 

relevant to the use of the sudden emergency doctrine. 

Driver Skiles testified he was familiar with the road and 

aware of the icy, unsanded conditions. He further testified: 

"Q. Could you pinpoint for us just how far 

away the vehicle was when you first saw it? 

A. Well, no, I can't. 

"Q. Could you estimate it perhaps in car 

lengths? A. Not really. I seen him cominq 
down the hill before he ever got to the ........................ 'unction. I didn't pay that much attention 

io him until he got-within one hundred yards 

of me. [Emphasis added.] 

"Q. So was he on the straightaway when you 

first began to pay attention to him? A. Yes. 

"Q. How long is your rig? Could you 

estimate that? A. It is approximately 

sixty-eight feet overall. 

"Q. Does that include both trailers? A. 

Yes. 

"Q. Could you describe the vehicle that you 

saw coming in the southbound lane? A. It 

was a -- It wasn't no new car but it wasn't 

no real old one either. 

"Q. Was it a large car or a small car? A. 

It wasn't neither. It was about a mediumsize car. 

"Q. And the color? A. Blue, I believe. 

"Q. When you first perceived the car and 

first noticed it, it was on the straightaway? 

A. Yes. 

"Q. Could you then describe for us what 

happened next? A. He just -- when I first 

really noticed him, he was coming quite 

fairly fast. 

"Q. Could you estimate his speed? A. No, I 

wouldn't even try because he was coming right 

straight at me but he's coming fast and 

that's -- I'm not here to estimate speeds 

anyway. 

"Q. Did you testify what your speed was at 

this time? A. Yes. 

"Q. How fast was that again? A. About 

twenty-f ive. 

"Q. Was the other car at a comparable rate 

of speed would you say? A. A lot faster I 

would say but how much faster I wouldn't 

know. 

"Q. So the car is coming straight down the 

southbound lane towards you and then what 

happens? A. Ee went across the junction 

there where this compact snow and ice is 

rutty, got ruts in it kind of, and when he 

got past, when he crossed the intersection, 

he started to go like that (indicating). 
"Q. Is he on the straightway at this time? 

A. Yes .'I 

The vehicles subsequently collided at the left front 

bumper of the truck and the left front door of the car. 

Several witnesses testified they heard two impacts up to 

five seconds apart. The only evidence of collision debris 

was found in the southbound (Eslinger's) lane, thus 

supporting the conclusion of the report and testimony of the 

Montana Highway Patrol officer that the point of impact was 

in the southbound lane. Ringsby claims that the debris was 

from the second collision and that the first collision 

occurred in the northbound lane. It claims that since 

investigators were delayed approximately one hour, traffic 

in the northbound lane around the accident destroyed the 

physical evidence of the first collision. 

Two issues are presented to this Court for review: 

1. Whether the giving of a sudden emergency instruction was erroneous under the facts in the instant case, or 

whether such an instruction should be given under any 

circumstances. 

2. Whether the alleged prior inconsistent statement 

of the truck driver taken by a highway patrol officer was 

properly rejected by the court. 

The issue of the emergency instruction first concerns 

the sudden emergency instruction and secondarily the giving 

of the instruction in conjunction with the statutory 

instruction on yielding one-half of the roadway. 

The given sudden emergency instruction, Instruction 

No. 18, is as follows: 

"A sudden emergency exists when the driver of 

a motor vehicle is suddenly placed in a 

position of imminent peril, great mental 
stress, or danger, which situation has not 

been brought about by his own negligence, - but 

in which instant action is necessary to avoid 

a threatened danger. But the driver must use 

that care which the ordinary prudent person 

.................................... 

would exercise under like or similar 

circumstances. One suddenly confronted with 

a peril through no fault of his own, who in 

attempting to escape does not choose the best 

or safest way should not be held negligent 

because of such choice, unless it was so 

hazardous that an ordinary prudent person 

would not have made [it] under similar 

circumstances." (Emphasis supplied.) 

Appellants claim the District Court further erred by 

giving the sudden emergency instruction together with the 

following instruction on yielding one-half of the roadway. 

Instruction No. 9 provided: 

"Under the statutes of the State of Montana, 

the operator of a motor vehicle is obligated 

to yield one half of the roadway to oncoming 

traffic. If the operator of a motor vehicle 

fails to yield one-half of the roadway and 

collides with the vehicle proceeding in the 

opposite direction in its lane of traffic, 

-- then the operator --- of the vehicle failinq to 

yield one half of the roadway is negligent." 

(Emphasis supplied.) 

Appellants contend the two instructions, not being 

compatible, confused the jury and, thus, prevented a fair 

trial. Presser v. Anderson (1965), 146 Mont. 396, 407 P.2d 

$fi A41; Adami v. Murphy (1945). 118 Mont. 172, 164 P.2d 150. 

Appellants further contend that the - sudden emergency 

...................... 

instruction is an exceEtion ------------ to the general rule that 

violation of a safety statute is negligence per se. Lyndes 

v. Scofield (1979), 180 Mont. 177, 589 P.2d 1000, 36 St.Rep. 

185; Duchesneau v. Silver Bow County (1971), 158 Mont. 369, 

492 P.2d 926. Appellants contend further that the sudden 

emergency doctrine has a limited application. In the 

instant case, the evidence did not present an "emergency" 

situation as envisioned by the doctrine. The slippery 
highway was foreseeable; therefore, the doctrine is 

unavailable. Boge v. Jack Link Truck Line, Inc. (Iowa 

Respondent Ringsby contends that a sudden emergency 

instruction and a statutory violation instruction do not 

necessarily conflict, Hood v. Williamson (1972), 7 Wash.App. 

355, 499 P.2d 68, and NeSmith v. Bowden (1977), 17 Wash.App. 

602, 563 P.2d 1322, and that their theory of the accident 

(Eslinger crossed the centerline causing an emergency 

situation) was supported by the evidence presented. 

Therefore, respondent was entitled to present its theory to 

the jury by proper instruction. Locker v. Sammons Trucking 

Company (1974), 10 Wash.App. 899, 520 P.2d 939. The 

appellants' theory of preexisting negligence by Skiles is 

not sufficient for excluding a sudden emergency situation. 

Barbieri v. Jennings (1976), 90 N.M. 83, 559 P.2d 1210. The 

"emergency" situation was the fishtailing of appellants' car 

and not the slippery condition of the road. Drivers need 

not anticipate all events. Erickson v. Perrett (1976), 169 

Mont. 167, 545 P.2d 1074. Respondent contends none of the 

authority cited by appellants address the emergency of an 

oncoming car in the wrong lane. 

The doctrine of sudden emergency was first adopted in 

Montana in the case of Peabody v. Northern Pac. Railway Co. 

(1927), 80 Mont. 492, 497, 261 P. 261, 262: 

"The rule as stated in the authorities 

generally is that: 

"'One who, in a sudden emergency, acts 

according to his best judgment, or who, 

because of want of time in which to form a 

judgment omits to act in the most judicious 

manner, is not chargeable with negligence. 

Such . . . act or omission . . . may be 

called a mistake, but not carelessness.' 
(Citations omitted.)" 

The sudden emergency doctrine has been recently 

criticized, and its application limited in a recent decision 

of this Court. In Kudrna v. Comet Corp. (1977), 175 Mont. 

29, 572 P.2d 183, we stated: 

"While we do not reject the concept of sudden 

emergency, we emphasize that it has limited 

application in the law of negligence, and 

trial courts should be very cautious in 

instructing the jury on sudden emergency. In 

Finley v. Wiley, 103 N.J.Super. 95, 246 A.2d 

715 (1968), the court criticized the sudden 

emergency rule: 

"'Further we entertain grave doubt whether a 

sudden emergency charge should ever be given 

in an ordinary automobile ..................... accident case. 

There is ----------_---------------------- a modern view that it is 

argumentative, unnecessary, _ and confusing, 

and should be eliminated . . . 

I1 I . . . defendant was faced with no more than 

------- an everyday -- --------- traffic ~roblem -- for which - he 

should have been prepared. - ------------------ The ordinary 

----_--_--- rules of negligence were -- _---------- a~~licable -------- and 

afforded ---_-----------_- a sufficient gauge -- --- by which to 

appraise his conduct.' 

"Further, this Court in Erickson v. Perrett, 

169 Mont. 167, 545 P.2d 1074, 33 St.Rep. 109 

(1976) cited Prosser on Torts, 4th ed., p. 

170, with approval as to the limited 

application of the rule: 

"'A further qualification [to the sudden 

emergency ruie] which must be made is that 

some "emergencies" must be anticipated, and 

the actor must be prepared to meet them when 

he engages -- in an activity in whrch they are 

likely to arise. Thus under present day 

traffic conditions, any driver of an 

automobile must be prepared for the sudden 

appearance of obstacles in the highway . . .I 

(Bracketed material added.)" 572 P.2d at 

191. (Emphasis supplied.) 

Professor Prosser's complete discussion of the 

emergency doctrine defines an emergency as a "sudden or 

unexpected event or combination of circumstances which calls 

for immediate action." Prosser on Torts, 4th ed., at 169. 

Other limitations not quoted in Kudrna, supra, are: 
"There are, however, a number of limitations 

which have hedged the 'emergency' rule. It 

does not mean that any different standard is 

-- to be applied in the emergency. The conduct 

required is still that of a reasonable man 

under the circumstances, as they would appear 

to one who was using proper --------- care, and the 

emergency is only -- one of the circumstances. 

An objective standard must still be applied, 

and the actor's own judgment or impulse is 

still not the sole criterion. He may still 

be found to be negligent if, notwithstandinq 

----- the emergency, his acts --- .......................... are found to be 

unreasonable. -- The 'emergency doctrine' is 

applied only where the situation which arises 

------------------ is sudden and unexpected, ---- and such -- as to 

deprive the actor of reasonable opportunity 

-------- for deliberation and considered decision. 

Furthermore, it obviously cannot serve to 

excuse the actor when the emergency has been 

created through his own negligence, since he 

cannot be permitted to shield himself behind 

a situation resulting from his own fault. It 

is, however, not the conduct after the 

emergency has arisen which is not excused, 

but the prior negligence; and where the 

question is one of the last clear chance, the 

defendant may still not be liable." (Emphasis 

supplied.) (Footnotes omitted.) Prosser, 

supra, at 169. 

Before an instruction on the doctrine of sudden 

emergency is given, the evidence should be sufficient to 

support a finding that: (1) the claimed emergency actually 

or apparently existed; (2) the perilous situation was not 

created or contributed to by the person confronted; (3) 

alternative courses of action in meeting the emergency were 

open to such person or there was an opportunity to take some 

action to avert the threatened casualty; and (4) the action 

or course taken was such as would or might have been taken 

by a person of reasonable prudence in the same or similar 

situation. Annot., 80 A.L.R.2d 1 (1961). 

The limited application of the sudden emergency 

doctrine in automobile cases and the reasons therefor are 

stated in Kudrna. In the instant case, assuming the 

"emergency" relied upon by respondent that preceded the 
accident was the fishtailing of the Eslinger vehicle, the 

evidence cannot be said to preclude the concurrent 

negligence of the truck driver Skiles, who testified, ". . . 

I didn't pay that much attention to him until he got within 

one hundred yards of me." 

"This Court has recognized the doctrine of sudden 

emergency, but a party asserting sudden emergency cannot 

obtain the benefit of that rule where the emergency itself 

has been created [or contributed to] by the actor's own 

negligent or other tortious conduct." Kudrna, 572 P.2d at 

189. (The bracketed language reflects the broader rule of 

other jurisdictions which denotes consideration of 

comparative negligence principles.) 

Further, the doctrine's requirement that the actor be 

deprived of "reasonable opportunity for deliberation," is 

doubtful here. The driver of the truck did not "pay that 

much attention to him [Eslinger] until he got within one 

hundred yards." The road was snow-covered and slick. 

Assuming, as respondent argues, that the collision occurred 

in the northbound lane, its driver was not confronted with a 

decision precipitated by an emergency. The time between his 

recognition of the Eslinger vehicle and the collision 

precluded a decision by him, and, therefore, the doctrine 

cannot be applied. 

The evidence, viewed in a light most favorable to 

Ringsby (e. , adopting its theory of the case) refutes 

Ringsby's claim of the propriety of the instruction. Under 

the doctrine when an actor who, forced by exigencies, makes 

less than the optimal decision, the trier of fact should not 

necessarily find negligence but rather consider the 
emergency and, accordingly, the reasonableness of the 

actor's conduct.. As stated by this Court, the emergency 

doctrine is a reiteration of the reasonable man standard. 

However, if no alternatives were available to the truck 

driver, the instruction, again, was not appropriate. There 

was no claim here of alternative courses of conduct facing 

the truck driver following his recognition of the emergency. 

Consideration being given to all the facts in a light most 

favorable to respondent, we must agree with appellants that 

the giving of Instruction No. 18 was prejudicial error. 

The sudden emergency doctrine admonition contained in 

Kudrna, supra, is we11 taken, and now, in view of this 

jurisdiction's adoption of the doctrine of comparative 

negligence, we would at this time admonish the trial courts 

that the instruction not be given in an ordinary automobile 

accident case. It is unnecessary and confusing. The 

ordinary rules of negligence are applicable and afford a 

sufficient gauge by which to appraise conduct. 

This does not create a different standard or diminish 

the existing standard to be applied in an emergency. The 

conduct required is still that of a reasonable man under the 

circumstances as they would appear to one using proper care. 

The emergency is only one of the circumstances. 

Ringsby devotes a substantial portion of its argument 

to support the proposition that an emergency instruction 

does not inherently conflict with an instruction on 

violation of a safety statute. Hood v. Williamson, supra; 

NeSmith v. Bowden, supra. This proposition is supported by 

Montana case law as well: 

"The District Court erred in concluding that 

violation of the statute constituted 
negligence as a matter of law. It is well 

established that involuntary violation of a 

statute in an emergency due to circumstances 

beyond the actor's control does not 

constitute negligence per se. Duchesneau v. 

Mack Truck, Inc. (1969), 158 Mont. 369, 377, 

492 P.2d 926, 930." Lyndes v. Scofield, 

supra, 589 P.2d at 1004. 

While the combination of an emergency and negligence 

per se instruction is not necessarily error, the 

determinative issue in this appeal is a somewhat different 

legal issue; i .e., whether the evidence presented justified 

acceptance of the instruction as a matter of law. 

The appellants finally contend the trial court's 

refusal to allow introduction of a statement given by driver 

Skiles to the investigating highway patrol officer shortly 

after the accident was prejudicial and reversible error. 

The evidence was offered as extrinsic evidence of a prior 

inconsistent statement. At trial, the Eslingers planned to 

impeach Skiles' contention, made in his deposed testimony, 

that he had not lost control. ~n his testimony, skiles 

said: 

"I started to pull to the right and I hit my 

brakes and I seen that wasn't the right thing 

to do so I got right back off them and the 

vehicle started to lock up." 

The excluded statement made to the patrol officer: 

"I then tapped my brakes and saw my vehicle 

was starting to skid, so I accelerated in an 

----- attem~t --- to regain control - ofmy vehicle." 

(Emphasis supplied.) 

Although the officer's report was excluded, the 

officer was allowed to testify regarding his interview with 

Skiles. 

"Q. With respect to Howard Skiles, the 

driver of the Ringsby truck, did you interview him immediately after the accident? A. 

Approximately two hours after the accident. 
"Q. This was in St. Ignatius, was it? A. 

Yes, sir. 

"Q. He was taken there, I believe, for 

medical attention, and you interviewed him at 

that time? A. Yes, I did. 

"Q. Did he tell you that when the Eslinger 

car came off the hill it fishtailed, and that 

he hit his brakes? A. Yes, he did. 

"Q. Did he tell you that then the trailer on 

his truck started to come around on him? A. 

Yes, he did. 

"Q. Did he tell you that he lost control of 

his truck? A. Yes. he did." (Em~hasis suw- , & & 

plied.) 

The testimony of the patrol officer provided substantially the same evidence as the excluded statement and the 

exclusion of the exhibit was harmless error. Rule 61, 

M.R.Civ.P. This is probably more true in this cause because 

the driver was not present in court and all testimony was by 

deposition. Further, ". . . error cannot be predicated upon 

the exclusion of evidence at one stage of a trial, if the 

same evidence is admitted thereafter." State v. American 

Bank & Trust Co. (1926), 75 Mont. 369, 384, 243 P. 1093, 

1098. See also Kraft v. Pattyn (1959), 135 Mont. 572, 342 

P.2d 1063. 

The judgment of the District Court is reversed, and 

the cause is remanded for a new trial. 

Justice 
We concur: 

Chief Justice 

L' 

Justices 

Hon&rable John M. McCarvel , ~isyrict Judge, sitting in 

place of Mr. Justice Frank B. 

Morrison, Jr. 
Mr. Justice Daniel J. Shea concurring: 

I agree that the sudden emergency instruction should 

not have been given, that it was prejudicial, and therefore 

that a new trial should be granted. I further agree that 

it is time for the demise of the sudden-emergency instruction 

in any situation. General instructions on negligence are 

fully capable of properly instructing the jury. I want to 

emphasize, however, a factor that has not been mentioned 

in the majority opinion--the defendant argued the sudden 

emergency to the jury and therefore the defendant is not now 

in a position to contend that the instruction was harmless. 

At the pretrial hearing, the plaintiffs had no idea that 

the defendant would rely on a sudden emergency as at least 

one of the theories exonerating it from liability. This 

theory was first presented by the defendant at the end of 

the case during the settlement of instructions. The instruction 

was given over the plaintiffs' objection. 

Although it was not argued in the briefs, the defendant 

truck lines argued at the hearing of this appeal, that, in 

any event, the sudden emergency instruction was harmless error. 

This argument was based on the underlying contention that each 

side approached the case knowing that the case would turn on 

which of the vehicles was on the wrong side of the road at the 

time of impact. If the plaintiffs' vehicle was in the northbound 

lane of the defendant's truck, the defendant truck lines would 

prevail. But if the defendant's truck was in the southbound 

lane of the plaintiffs' at the time of the impact, the 

plaintiffs would prevail. For this reason, the defendant 

truck lines argued that the sudden emergency instruction was 

harmless error because the jury must have found that the 
plaintiffs' vehicle was in the northbound lane of the 

defendant's truck at the time of impact. 

But during the final arguments to the jury, defendant's 

counsel did not downgrade the application and effect of the 

sudden emergency instruction. Rather, he emphasized to 

the jury that it would probably be a vital aid in helping 

the jury reach a decision. 

Counsel used the sudden emergency instruction as follows 

in his final argument: 

". . . There has been no testimony by anyone 

in this case that that truck was traveling 

anything other than a slow, careful speed until 

a sudden emergency. I'm going to ask that you - - ---- - go - to - the - jury - and - read - the instruction on 

sudden emergency, because I'm not going to talk 

about it. You --- read it, -- and you apply that 

instruction to the facts of this case." (Empha -. -- --- sis 

added. ) 

Although defense counsel did not again mention the 

instruction, the entire case based on the deposition of 

the truck driver read into evidence, and in part read again 

to the jury by defense counsel in final argument, was that 

the conduct of the truck driver should be judged by the 

fact that he took action in an emergency situation. Obviously 

the defense wanted the jury to judge the truck driver's 

conduct based first on the fact that he had responded to an 

emergency situation. 

We do not, of course, know how the jury reached its 

verdict. But the jury could have decided that the truck 

was in the wrong lane of traffic at the time of impact, 

but also that the defendant should not be held liable because 

the truck driver had responded to an emergency situation and 

in so doing he could not control the movement of his truck 

after he applied his brakes. Or it is possible that a part 

of the jury decided the case on the theory that the plaintiffs' 
vehicle was in the wrong lane of traffic but that the 

remainder of the jurors needed for a verdict, based their 

decision on an emergency situation justifying the truck 

driver being in the wrong lane of traffic at the time of 

impact. They could have based their decision on the sudden 

emergency instruction. 

Under these circumstances, I cannot accept the defendant 

truck line's argument that the instruction, if error, was 

harmless. 
Mr. Justice Fred J. Weber dissenting: 

I respectfully dissent. 

The majority opinion sets forth the full text of Instruction No. 18, which is the sudden emergency instruction given 

in this case. It should be noted that this instruction is a 

duplicate of the sudden emergency instruction given in Dawe 

v. Dalley (1972), 161 Mont. 73, 504 P.2d 982. In the Dawe 

case, the Dalley car had followed the Dawe vehicle for 

approximately three-quarters of a mile up the north side of 

Boulder Hill on Highway 91 in Jefferson County. The Dawe 

car was observed to have difficulty negotiating the hill and 

was fishtailing. When the car started down the south side, 

they were traveling no faster than 15 miles per hour, with 

Dalley testifying he was trying to keep 50-75 feet behind 

the Dawe vehicle. Upon reaching a sharp curve the Dawe 

vehicle went out of control with front wheels colliding with 

a snowbank and the rear end sliding around. At this point 

Dalley tried to turn to the left but was unable to do so 

because of oncoming traffic. He then applied brakes and 

slid into the Dawe vehicle. Based upon these facts, this 

Court in a unanimous decision agreed that it was proper to 

give the sudden emergency instruction. The Court stated: 

"'We are also of the opinion that the court 

did not err in instructing the jury with 

reference to the emergency doctrine. An 

instruction on this theory should always be 

given where it is consistent with the theory 

of one of the parties to the action and 

where the evidence submitted by such party 

would sustain a finding that he had been 

confronted with a sudden peril or emergency and acted under its stress.'" 161 Mont. 

at 76, 504 P.2d at 984. 

The Court further quoted from the Montana rules stated 

in Peabody v. Northern Pac. Ry. Co. (1927), 80 Mont. 492, 
"'If the evidence in this case were sufficient 

to warrant a reasonable conclusion that at 

the time in question the defendant . . . was 

confronted with a "sudden emergency," or that 

"there was want of time in which to form a 

judgment", under the circumstances, as they 

appeared to him, - the court should have given 

- the offered instructions.' Emphasis supplied." 

161 Mont. at 76, 504 P.2d at 984. 

At the time of the trial of the present case, the 

holding in Dawe had not been modified or overturned. No 

specific reference is made to this case in the majority 

opinion. 

The majority opinion makes an extensive reference to 

the Kudrna case. It should be noted that the quoted portions 

of that case are essentially dicta. In Kudrna this Court 

found that the doctrine of sudden emergency could not be 

applied because the truck driver had created his own emergency 

by his own negligent acts. 

Following the quotation from Kudrna and Prosser the 

majority opinion refers to the annotation in 80 ALR 2d 1 

and points out that before the instruction on the doctrine 

of sudden emergency is given, the evidence should be sufficient 

to support a finding that (1) the claimed emergency actually 

or apparently existed; (2) the apparent situation was not 

created or contributed to by the person confronted; (3) 

alternative courses of action in meeting the emergency were 

open to such person or there was an opportunity to take some 

action to avert the threatened casualty; (4) the action or 

course taken was such as would or might have been taken by a 

person of reasonable prudence in the same or similar situation. 

The majority then seeks to apply the facts to the foregoing 

rules and arrives at a conclusion that the instruction was 

improper. 
We respectfully submit that there has been a failure on 

the part of the majority to accurately analyze the facts in 

the present case. The evidence on the point of impact of 

the vehicles is in direct conflict. The majority opinion 

makes reference to the evidence of collision debris in the 

southbound lane of traffic and the testimony of the highway 

patrol officer that the point of impact was in the southbound 

lane, that being the lane of the plaintiffs' car. That 

evidence is certainly significant and is unfavorable to the 

defendant. However, it should be noted that there is 

extensive evidence contradicting the patrolman's conclusion 

as to the point of impact. In a similar manner, there is 

extensive testimony which positively states that the plaintiffs' 

car made two complete spins on the icy highway, fishtailed 

back and forth, and slid sideways across from its own lane 

of traffic into the lane of traffic of the northbound 

truck, colliding with the truck in the northbound lane of 

traffic. The accident occurred in the town of Ravalli in an 

area posted for 45 miles per hour travel. The evidence 

indicates the truck was driving north at 25-35 miles per 

hour and that the plaintiffs' car was driving south down 

Ravalli Hill at a speed of 35 miles per hour or possibly 

faster. That evidence shows that the sudden emergency so 

far as the truck driver was concerned was the sliding sideways 

across into his traffic lane of the Eslinger car. 

Mark Fitch, 40 years of age, with 22 years of driving 

experience, was seated in the Bison Cafe, which is next to 

the highway and adjacent to the point of collision. Key 

parts of Mr. Fitch's testimony are: 

"A. Well, the car (Eslinger car) was headed 

south, corning off of Ravalli Hill, and when 

it got close to the intersection of 200 at 
the foot of the hill, it seemed to start 

fishtailing out of control and started two 

clockwise spins still heading south. 

"Q. How fast was the blue car (Eslinger car) 

traveling as it approached the intersection 

heading toward Thompson Falls? 

"A. I would guess between thirty - thirtyfive miles an hour. 

"Q. You indicated that it started to fishtail; 

is that right? 

"A. Yes. 

"Q. Can you tell the jury in your own words 

what your conception of a fishtailing maneuver 

is? 

"A. The back end trying to pass the front end. 

"Q. What did you do when you saw it attempting 

to fishtail? 

"A. Well, I watched it go into a couple of 

clockwise spins, and then I immediately looked 

south, because my wife was supposed to meet me. 

"Q. Why is it that you looked south? 

"A. She drives a Chevrolet Chevette, and I 

was concerned she may be the next car in line. 

"Q. Based upon your twenty-two years of driving experience, was the blue car in control 

as it proceeded from the Thompson Falls intersection southerly? 

"A. No. 

"Q. As you looked southerly towards the 

direction to which you thought your wife was 

approaching, did you have the opportunity to 

see any other vehicle? 

"A. Yes, there was a truck approaching headed 

north . 

"Q. Could you tell, based upon your observation of that truck at that place and time, how 

fast it was traveling? 

"A. I would guess approximately thirty - thirtyfive miles an hour. 
"Q. At the time you saw the truck, which lane 

of traffic was it in, the right lane. Excuse 

me, strike that. 

"Was it in the northbound lane or the southbound lane? 

"A. It was in the northbound lane. 

"Q. Had you driven that particular roadway 

before? 

"A. Many times. 

"Q. Were you familiar with where the snow 

berms were on the side and where the centerline was underneath the snowpack? 

"A. Yes. 

"Q. As the truck proceeded further northerly, 

did it stay in the northbound lane? 

"A. Yes, it did. 

"Q. Mr. Fitch, I'll ask some more specific 

questions later, but will you tell this jury 

in your own words exactly what you saw as the 

truck and the car approached each other. 

"A. Just a little bit south of what used to 

be the Texaco station there the truck was in 

the northbound lane, and the car seemed to 

be starting into another spin and was sitting 

crossways in the northbound lane, at which 

time the truck contacted it at about the 

passenger or the driver's door, which would 

be the left side, with the left front corner 

of the vehicle, truck, and proceeded to shove 

it back up the highway, I would guess a hundred 

- hundred and fifty feet. First contact the 

truck immediately -- the tractor jackknifed, 

made contact about a hundred feet - a hundred 

fifty feet up the road, at which time it hit 

the right side of the truck, still hitting 

the driver's side of the car, shoving it off 

to the west of the highway, and the trailer 

then continued to spin around and slide off 

to the west side of the highway. 

"Q. Mr. Fitch, when the first contact was 

made between the car and the truck, was the 

truck in the northbound lane or in the southbound lane? 

"A. Was in the northbound lane. 

"Q. When the car first made contact with the 

truck, was it in the northbound lane or in 

the southbound lane? 

"A. Mostly in the northbound lane. 
"Q. Was the car at that particular point in 

time with its nose headed south, or was it 

sideways? 

"A. A little sideways, still primarily headed 

south. 

"Q. Did you, from where you were seated, hear 

these various impacts that took place? 

"A. Yes, I did. 

"Q. Did you hear the first impact when you saw 

it take place? 

"A. Yes. 

"Q. Approximately how many seconds elapsed 

before the second impact took place? 

"A. Five, three, four, five seconds, very 

short period of time. 

"Q. Approximately five seconds? 

"A. Approximately. 

"Q. Can you describe to the jury what happened 

to the car at the time of the first impact? 

"A. Yes, it was shoved back up the highway, 

that would be north, which it went a little 

bit to the southbound lane, and on the second 

impact then it took place in the southbound 

lane. " 

Virginia Butler, who had lived in the Ravalli area for 

37 years and been driving a car for 20 years, also testified. 

She also was seated next to a window in the Bison Cafe, 

directly opposite the point of collision. She testified at 

length as to her observations of both vehicles. She confirmed 

that the Eslinger car was going virtually sideways on the 

highway. She testified that the car was traveling faster 

than the truck. She further confirmed that the truck was in 

its correct lane, that being the northbound lane, and that 

just prior to the impact, the car was in the wrong lane, 

that being the northbound lane as well. She also confirmed 

that she heard two loud noises, with the second noise being 
several seconds after the first. She testified that the 

truck ended up swerving around after the collision and 

itself heading south. 

Howard Skiles, driver of the truck testified as mentioned 

in the majority opinion. He testified to the application of 

brakes on the truck and trailer, which resulted in a sliding 

or locking, after which he released such brakes. It was 

this application of brakes which the defendant contends was 

the action on the part of the truck driver which was justified 

because of the sudden emergency. In pertinent part Skiles testified: 

"A. I started to pull to the right and I 

hit my brakes and I seen that wasn' t the 

right thing to do so I got right back off 

them and the vehicle started to lock up. 

"Q. What happened when you hit your brakes? 

"A. It started to lock up. 

"Q. And what occurred when it started to 

lock up? 

"A. It started to slide and I immediately 

let off. 

"Q. What direction did it start to slide? 

"A. Just down the street. 

"Q. Was it going straight? 

"A. Fairly straight, yes. 

"Q. In what position was the trailer at this 

point? 

"A. It was behind me. 

"Q. Did the trailer start to come forward? 

"A. No, I let off on the brakes before they 

had a chance. I just barely tapped them. 

"Q. You tapped the brakes, you felt the 

vehicle lock up -- I think that's the term 

you used -- and slide. You went into a skid. 

"A. Started to. 

"Q. Then what happened? 
"A. I let off the brakes, looked back and he 

started to fishtail and he turned about half 

sideways and he was coming right at me. 

"Q. Where was your vehicle at this time and 

this is just before the impact? 

"A. Well, there is no way for me to really -- 

The vehicle itself, mine was -- It was well 

over in my lane at the time of impact. 

"Q. Your vehicle was in the northbound lane 

at the time of the impact? 

"A. Yes. 

"Q. Did it ever slide over to the southbound 

lane? 

"A. That street is plowed real wide right there. 

That must be over seventy feet of street right 

there but it was way over on my side. 

"Q. Did you ever cross the centerline? 

"A. NO." 

Officer Magone did testify as follows with regard to 

the point of impact: 

"Q. Is there any question in your mind, officer, 

about where the impact of this accident occurred? 

"A. NO, sir. 

"Q. And it occurred, as you said, in the southbound lane, close to the west edge, I think you 

said of the asphalt? 

"A. It is difficult to tell exactly where the 

edge of the lane was, but it was on the west 

side, yes, in the southbound lane; kind of 

hard to tell right where the lane is there due 

to the snow cover, but from the centerline 

over to this point we would put it on the edge 

of the lane." 

Reviewing the evidence in the light most favorable to 

the defendant, as required, we would hold that the findings 

required under the annotation from 80 ALR 2d. 1, cited in 

the majority opinion have been met: 

1) The claimed emergency which actually existed was 

the sliding of the Eslinger car sideways into the truck's 
lane of traffic. 

2) The perilous situation was not created by the 

truck driver - the truck driver testified "I seen him coming 

down the hill before he ever got to the junction. I didn' t 

pay that much attention to him until he got within 100 yards 

of me." The majority has suggested this is an indication of 

negligence. That cannot be implied where the evidence shows 

that he was driving at 25-35 miles per hour. Note there is 

no other evidence showing negligence on the part of the 

truck driver with the exception of the reference to the 

point of collision by the evidence of the highway patrolman. 

3) Alternative courses of action in meeting the 

emergency were open to the truck driver - clearly it made 

sense for him to turn right and apply the brakes as he did. 

4) The action taken was such as might have been taken 

by a person of reasonable prudence in the same or similar 

situations - this seems to have been an entirely appropriate 

course of action to be taken by a reasonably prudent person. 

While the application of the brakes did cause some locking 

and possibly sliding, the immediate release of the brakes 

allowed the truck and trailers to remain in the proper lane. 

Our case is directly comparable to Hood v. Williamson 

(1972), 7 Wash. App. 355, 499 P.2d 68. In the Hood case, 

there was a head-on collision where the occupants of the 

vehicles were both killed and there was conflicting evidence 

concerning the lane in which the collision occurred. With 

regard to the emergency instruction similar to the instruction 

here given, the court stated: 

"An emergency instruction is properly 

applied on behalf of the driver of a car 

on its own side of the road, when confronted with a car on the wrong side of the 
road. [Citation omitted. I There was substantial 

evidence to justify giving the emergency instruction on behalf of both plaintiff and defendant." 

499 P.2d at 72. 

In the fact situation of the present case, the emergency 

instruction could be applicable to both the plaintiffs' and 

defendant's side of the case. The plaintiffs could have 

argued that the application of the brakes, locking of the 

wheels, and sliding of the truck was an emergency which 

required a response on the part of the Eslingers. On the 

other hand, as argued by the defendant, the sideways sliding 

of the Eslinger vehicle into the wrong traffic lane clearly 

required an emergency response by the truck driver. 

We find that both plaintiffs and defendant were represented 

by very competent counsel, and presented all of the evidence 

available in behalf of each side. There were striking 

conflicts in the evidence. After due consideration, the 

jury found that the negligence of the Eslingers was 100% of 

the cause of the accident, and that there was no negligence 

on the part of the truck driver. We would affirm the judgment 

of the lower court. 

We concur in the above dissent: 

Chief Justice