### No. 80-149 IN THE SUPREME COURT OF THE STATE OF MONTANA

VANESSA ESLINGER and LANETTE ESLINGER, individuallyand 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 JudicialDistrict, In and for the County of Missoula Hon. JamesWheelis, Judgepresiding. 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 PaulMeismer argued, Missoula,

Montana J. Michael Young,Dept. ofAdministration,Helena,

Montana

Submitted: September 18, 1981 Decided: 

# W~V 12198f Filed: 

## K'OV1

# r fgmMr. 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 Stateof Montana tobe freeof any negligence. Plaintiffs appeal as toRingsby 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 occurred near the T-junction formed by U.S. Highway 93 and Montana Highway 200. Highway 93 

### is straight and relatively flatthrough 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 hispassenger. Atthe 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 thatmuch attention iohim until he got-within one hundred yards of me. [Emphasis added.] "Q. 

### So was he on the straightaway when you firstbegan topay attention tohim? A. 

### Yes. "Q. 

### How long is 

### your rig? Could you estimate that? A. It 

### is approximately sixty-eight feetoverall. "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 mediumsizecar. "Q. 

### And the color? A. 

### Blue, I 

### believe. "Q. When you first perceived the car and firstnoticed 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 trybecause 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 thistime? A. 

### Yes. "Q. 

### How fast was that again? A. 

### About twenty-five. "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 togo 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 thepoint of impact was inthe 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 firstcollision. Two issues arepresented to thisCourt 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 issueof the emergency instruction firstconcerns 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 existswhen 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." (Emphasissupplied.) 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. InstructionNo. 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),7Wash.App. 355, 499 P.2d 68,and NeSmith v. Bowden (1977), 17Wash.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),90N.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.'

### (Citationsomitted.)" 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 'emergencydoctrine' 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 suchperson 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 hisrecognition 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 InstructionNo. 18was 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 atthis 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 sufficientgauge 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 toone 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 aswell: 

### "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 toallow 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 topull to the right and I 

### hit my brakes and I 

### seen thatwasn't the right thing to do so I 

### got right back off them and the vehicle started tolock up." The excluded statementmade tothe patrol officer: "I then tapped my brakes and saw my vehicle was starting to skid, so I 

### accelerated in an attem~t toregain control ofmyvehicle." 

## ----- --- 

## - (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 hithisbrakes? 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 thathe lostcontrol of histruck? 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 thiscause because the driver was not present in court and alltestimony 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. JusticeDaniel J. Shea concurring:

I agree that the sudden emergency instruction should not have been given, that 

### itwas prejudicial, and therefore that a new 

### trial should be granted. I further agree that 

### it is 

### timefor the demise of the sudden-emergency instruction inany situation. General instructions on negligence 

### are fully capable of properly instructing thejury. I want to emphasize, however, a factor thathas not been mentioned inthemajority opinion--the defendant argued the sudden emergency tothejury and therefore the defendant 

### isnot now in a position tocontend thatthe instructionwas harmless. Atthepretrial hearing, the plaintiffs had no idea that the defendant would relyon a sudden emergency 

### as atleast one of the theories exonerating

### it from liability. This theory was firstpresented by the defendant atthe end of the case during the settlement of instructions. The instruction

was given over theplaintiffs' objection. Although it was not argued inthebriefs, the defendant truck linesargued atthe hearing of thisappeal, that, in any event, the sudden emergency instruction was harmless error. This argument 

### wasbased on theunderlying contention that each side approached the case knowing that the case would turn on which of thevehicleswas on thewrong side of the road atthe 

### timeof impact. If theplaintiffs' vehicle

### was inthe northbound lane of the defendant's truck, the defendant truck lineswould prevail. But if the defendant's truck 

### was inthe southbound lane of theplaintiffs' atthe 

### timeof the impact, the plaintiffs would prevail. For thisreason, the defendant truck lines argued that the sudden emergency instructionwas harmless errorbecause the jury must have found that theplaintiffs' vehiclewas inthenorthbound lane of the defendant's truck atthe time of impact. But during the final arguments to the jury, defendant's counsel didnot downgrade the application and effect of the sudden emergency instruction. Rather, he emphasized to thejury that 

### it would probably be a vital aidinhelping thejury reach a decision. Counsel used the sudden emergency instruction 

### as follows inhis finalargument: 

# ".



# . . There has been no testimony by anyone inthiscase thatthat truck

### was traveling anything other than a slow, careful speed until a sudden emergency. I'm going toask thatyou - 

### - ---- go tothe jury and read the instructionon - -

### ---

## -- sudden emergency, because I'm not going

## to talk about 

### it. You read 

### it, and you apply that 

### --- 

## -- instructiontothe factsof thiscase." (Empha

-. 

### -- --- sis added.) Although defense counsel did not again mention the instruction, the entirecasebased on the deposition of the truck driverread intoevidence, and inpart read again tothejury by defense counsel in finalargument, was that the conduct of the truck driver should be judged by the fact thathe took action inan emergency situation. Obviously the defense wanted the jury tojudge the truck driver's conduct based firston the fact thathe had responded toan emergency situation. Wedo not, of course, know how thejury reached its verdict. But thejury could have decided that the truck



### was inthewrong laneof trafficatthe 

### timeof impact, but alsothat the defendant should not be held liablebecause the truck driver had responded toan emergency situation and insodoing he could not control themovement of his truck afterhe appliedhisbrakes. Or 

### it 

### ispossible that a part of thejury decided the caseon the theory that theplaintiffs'

### vehicle was in thewrong 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 setsforththe full textof InstructionNo. 18, which isthe sudden emergency instruction given inthis case. It should be noted that this instruction isa duplicate of the sudden emergency instruction given inDawe

v. Dalley (1972), 161Mont. 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 Hillon Highway 91inJefferson County. The Dawe

carwas observed tohave difficulty negotiating the hilland

was fishtailing. When the car started down the south side, they were traveling no faster than 15

### milesper hour, with Dalley testifying he 

### was trying tokeep 50-75 feetbehind theDawe vehicle. Upon reaching 

### a sharp curve the Dawe vehicle went outof control with frontwheels colliding with

a snowbank and the rear end sliding around. Atthispoint Dalley tried to turn to the leftbutwas unable todo so because of oncoming traffic. He then applied brakes and slidinto theDawe vehicle. Based upon these facts, this Court ina unanimous decisionagreed that itwas proper to give the sudden emergency instruction. The Court stated: "'We arealsoof the opinion that the court didnot errininstructing the jury with reference to the emergency doctrine. An instruction on this theory should always be given where 

### it

### isconsistentwith the theory of one of theparties to the action and where the evidence submitted by such party would sustaina finding thathe had been confronted with a sudden peril or emergency and acted under its stress.'" 161Mont. at76, 504 P.2d at984. The Court further quoted from the Montana rules stated inPeabody v. Northern Pac. Ry. Co. (1927), 80 Mont. 492,"'If the evidence inthis case

### were sufficient towarrant a reasonable conclusion thatat the time inquestion the defendant 

# . .

# . was confrontedwith a "sudden emergency," or that "therewas want of 

### timeinwhich toform a judgment", under the circumstances, as they appeared to him, 

## - the court should have given the offered instructions.' Emphasis supplied." 

## - 161Mont. at76, 504 P.2d at984. Atthe time of the trialof the present case, the holding inDawe had not been modified or overturned. No specific reference ismade to thiscase inthemajority opinion. The majority opinionmakes an extensive reference to the Kudrna case. It should be noted that the quoted portions of that case areessentiallydicta. InKudrna thisCourt 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 tothe annotation in 80 ALR 2d 1 and points out thatbefore the instruction on the doctrine of sudden emergency 

### isgiven, the evidence should be sufficient to support a finding that (1)the claimed emergency actually

or apparently existed; (2) the apparent situationwas not created or contributed toby theperson confronted; (3) alternative courses of action inmeeting the emergency 

### were open to such person or therewas an opportunity to take some action toavert the threatened casualty; 

### (4) the actionor

course taken was such aswould ormight have been taken by a person of reasonable prudence inthe same or similar situation. The majority then seeks toapply the facts to the foregoing rules and arrives ata conclusion that the instructionwas improper.Werespectfully submit that there has been a failureon thepartof the majority to accurately analyze the facts in thepresent case. The evidence on the point of impact of the vehicles is indirectconflict. The majority opinion makes reference to the evidence of collision debris inthe southbound lane of trafficand the testimony of the highway patrol officer that the point of impact was inthe southbound lane, thatbeing the lane of theplaintiffs' car. That evidence 

### iscertainly significant and 

### isunfavorable to the defendant. However, 

### it should be noted that there 

### is extensive evidence contradicting the patrolman's conclusion

asto the point of impact. Ina similarmanner, there is extensive testimony which positively states that the plaintiffs'



### car made two complete spins on the icyhighway, 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 inthe northbound lane of traffic. The accident occurred inthe town of Ravalli inan

area posted for 45

### milesper hour travel. The evidence indicates the truck was driving north at25-35 

### milesper hour and thattheplaintiffs' car

### was driving south down Ravalli Hillata speed of 35 

### milesper hour orpossibly faster. That evidence shows that the sudden emergency so faras 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 inthe Bison Cafe, which 

### isnext 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 intersectionof 200 atthe footof the hill, it seemed to start fishtailingoutof control and started two clockwise spins 

### stillheading south.

"Q. How fastwas the blue car (Eslinger car) traveling as

### itapproached the intersection heading toward Thompson Falls? "A. I would guess between thirty

## - thirtyfivemiles an hour. "Q. You indicated that

### it started to fishtail; 

### is thatright? "A. Yes. "Q. Can you 

### tell the jury inyour own words what your conception of 

### a fishtailingmaneuver is? "A. The back end trying topass the front end. "Q. What didyou do when you saw 

### itattempting to fishtail? "A. Well, I watched 

### it go intoa couple of clockwise spins, and then I immediately looked south, because my wife was supposed to

### meet

### me. "Q. Why 

### isit thatyou looked south? "A. She drives a Chevrolet Chevette, and I was concerned shemay be the next car in line.

"Q. Based upon your twenty-two years of driving experience, was the blue car incontrol asitproceeded from the Thompson Falls intersection southerly? "A. No.

"Q. Asyou looked southerly towards the direction towhich you thought your wife was approaching, didyou have the opportunity to see any other vehicle? "A. Yes, therewas a truck approaching headed north

# . "Q. Could you tell, based upon your observation of that truck atthatplace and time, how fast

### itwas traveling? "A. I would guess approximately thirty

# - thirtyfive

### milesan hour."Q. Atthe 

### timeyou saw the truck, which lane of traffic

### was it

### in, the right lane. Excuse me, strike that. "Was itinthe northbound lane or the southbound lane? "A. Itwas in the northbound lane. "Q. Had you driven thatparticular roadway before? "A. Many times. "Q. Were you familiar with where the snow berms were on the side and where the centerlinewas underneath the snowpack? "A. Yes. "Q. As the truck proceeded further northerly, did it stay inthe northbound lane? "A. Yes, itdid. "Q. Mr. Fitch, I'll ask some more specific questions later, but

### willyou 

### tell thisjury inyour own words exactlywhat you saw 

### as the truck and the car approached each other. "A. Just

### a 

### littlebit south of what used to be the Texaco stationthere the truck 

### was in the northbound lane, and the car seemed to be startingintoanother spin and was sitting crossways inthe northbound lane, atwhich time the truck contacted it atabout the passenger or the driver's door, which would be the leftside, with the leftfront corner of the vehicle, truck, and proceeded to shove itback up the highway, I would guess a hundred 

## - hundred and fiftyfeet. Firstcontact the truck immediately

## -- the tractor jackknifed, made contact about a hundred feet

## - a hundred fiftyfeetup the road, atwhich time it hit the right side of the truck, still hitting the driver's side of the car, shoving 

### itoff to the

### westof the highway, and the trailer then continued to spin around and slideoff to the

### west side of the highway. "Q. Mr. Fitch, when the firstcontactwas made between the car and the truck, was the truck inthe northbound lane or in the southbound lane? "A. Was inthe northbound lane. "Q. When the car firstmade contactwith the truck, was 

### itinthe northbound lane or in the southbound lane? "A. Mostly inthe northbound lane."Q. Was the car atthatparticular point in time with its nose headed south, or was it sideways? "A. A littlesideways, 

### stillprimarily 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 firstimpact 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 shortperiod of 

### time. "Q. Approximately five seconds? "A. Approximately. "Q. Can you describe to the jury what happened to the car atthe time of the firstimpact? "A. Yes, itwas shoved back up the highway, thatwould be north, which itwent a little bittothe southbound lane, and on the second impact then it took place inthe southbound lane.

### " Virginia Butler, who had lived inthe Ravalli area for 37 years and been driving a car for 20 years, also testified. She alsowas seated next to a window inthe Bison Cafe, directlyopposite the point of collision. She testified at length as toher observations of both vehicles. She confirmed that the Eslinger carwas 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 itscorrect lane, thatbeing the northbound lane, and that just prior to the impact, the carwas in thewrong lane, thatbeing the northbound lane aswell. She also confirmed that she heard two loud noises, with the second noise beingseveral 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 asmentioned inthemajority opinion. He testified to the application of brakes on the truck and trailer, which resulted ina sliding

or locking, after which he released such brakes. Itwas 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. Inpertinentpart Skiles testified: "A. I started topull to the right and I hitmy brakes and I seen thatwasn'

### t the right thing todo so I gotrightback off them and the vehicle started to lock up. "Q. What happened when you hityour 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 

### letoff. "Q. What direction did it 

### start to slide? "A. Justdown the 

### street. "Q. Was itgoing straight? "A. Fairly straight, yes. "Q. Inwhat position was the trailer atthis point? "A. Itwas behind 

### me. "Q. Did the trailer startto come forward? "A. No, I letoff on the brakes before they had a chance. I just barely tapped them. "Q. You tapped thebrakes, you feltthe 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 

### letoff the brakes, looked back and he started to fishtailand he turned about half sideways and he was coming right at

### me. "Q. Where was your vehicle atthis time and this

### isjust before the impact? "A. Well, there isno way for

### me toreally

### -- The vehicle itself, mine 

### was

### -- Itwas well over inmy lane atthe time of impact. "Q. Your vehicle was in the northbound lane atthe time of the impact? "A. Yes. "Q. Did 

### itever slideover to the southbound lane? "A. That streetisplowed real wide right there. That must be over seventy feetof 

### 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 inyour mind, officer, about where the impact of this accidentoccurred? "A. NO, 

### sir. "Q. And itoccurred, asyou said, inthe southbound lane, close to the

### westedge, I think you saidof the asphalt? "A. It 

### isdifficult to 

### tell exactlywhere the edge of the lane

### was, but it

### was on the west side, yes, inthe southbound lane; kind of hard to tellrightwhere the lane is there due to the snow cover, but from the centerline over to thispoint we would put 

### it on the edge of the lane." Reviewing the evidence in the lightmost favorable to the defendant, asrequired, we would hold that the findings required under the annotation from 80 ALR 2d. 1, cited in themajority opinion have been 

### met: 1) The claimed emergency which actually existedwas the slidingof the Eslinger car sideways intothe truck'slane of traffic. 2) The perilous situation was not created by the truck driver

## - the truck driver testified "I seen him coming down the hillbefore he ever got to the junction. I didn'

### t pay thatmuch attention tohim until he gotwithin 100yards of me." The majority has suggested this 

### is an indication of negligence. That cannot be implied where the evidence shows thathe was driving at25-35 

### milesper hour. Note there 

### is

no other evidence showing negligence on thepart of the truck driver with the exceptionof the reference to the point of collisionby the evidence of the highway patrolman. 3) Alternative courses of action inmeeting the emergency were open to the truck driver

### - clearly itmade

sense for him to turn right and apply the brakes ashe did. 4) The action taken 

### was such asmight have been taken by a person of reasonable prudence inthe same or similar situations

## - this 

### seems tohave been an entirelyappropriate

course of action tobe 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 intheproper lane. Our case 

### isdirectlycomparable to Hood v. Williamson (1972), 7Wash. App. 355, 499 P.2d 68. In the Hood 

### case, there was a head-on collisionwhere the occupants of the vehicles were both killed and there was conflicting evidence concerning the lane inwhich the collision occurred. With regard to the emergency instruction similar tothe instruction here given, the court stated: "An emergency instruction isproperly applied on behalf of the driver of a car on 

### itsown sideof the road, when confronted with a car on the wrong sideof theroad. [Citationomitted.

### I There was substantial evidence tojustify giving the emergency instruction on behalf of both plaintiff and defendant." 499 P.2d at72. In the fact situationof the present case, the emergency instruction could be applicable toboth the plaintiffs' and defendant's sideof 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 thepartof 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 thatboth plaintiffs and defendantwere represented by very competent counsel, and presented allof the evidence available inbehalf 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 partof the truck driver. We would affirm the judgment of the lower court.

Weconcur inthe above dissent:

Chief Justice