No. 12865 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

JACQUELINE ALLEN et a 1. , 

Plaintiffs and Appellants, 

-vs - 

WALTER S. YOORE, JR., et al., 

Defendants and Respondents, 

dppeal from: District Court of the Sixth Judicial District, 

Honorable Jack D. Shanstrom, Judge presiding. 

Zounsel of Record : 

For Appellants : 

Hibbs, Sweeney and Colberg, Billings, Montana 

Maurice Colberg argued, Billings, Montana 

For Respondents : 

Moulton, Bellingham, Longo and Mather, Billings, 

Montana 

William S. Mather argued, Billings, Montana 

Small, Cummins and Hatch, Helena, Montana 

Robert GLzmmins argued, Helena, Montana 

Submitted: March 6, 1975 

Decided : - 8 1975 
Mr. Chief Justice James T. Harrison delivered the Opinion 

of the Court. 

In this cause plaintiffs are the widow, personal representative, and children of Eugene Tyler Allen, deceased, 

who brought this wrongful death and survival action in the 

district court, Sweet Grass County. Originally the defendants 

were Walter S. Moore, Jr., and one Barney L. Hitt, 111. A 

motion for summary judgment for Hitt was granted prior to trial. 

The jury returned a verdict for defendant Moore and judgment 

was entered. From this judgment and an order denying a motion 

for a new trial, plaintiffs appeal. 

An automobile accident occurred November 27, 1971, at 

approximately 9:40 a.m., on Interstate 90 highway about 13 miles 

west of Big Timber, Montana. The weather conditions existing at 

the time were: the sky was overcast, it had been snowing, and 

there was slush on the highway. 

The vehicles involved in the collision were: (1) an 

International Scout vehicle driven by Moore and in which decedent 

was in the right front seat and one Ed Sills was in the rear seat 

area on a platform. Sills was asleep at the time of the collision. The Scout was proceeding east. (2) A Chevrolet station 

wagon, driven by Gerald Cosgriff, his wife Donna in the right 

front seat, daughter Sarah on her mother's lap, and their sons 

Edward and David in the rear seats. The Chevrolet was proceeding 

west. 

The roadway where the collision occurred was straight 

and level, with a broken center line permitting passing; there 

was 

were two lanes for traffic and the roadway/approximately 22 feet 

wide. Cosgriff estimated the speed of the Scout at the time he 

first saw it, as being in excess of 50 mph. Moore estimated his 

speed prior to the collision at 30 to 35 mph, but in a statement 
given on December 20, 1971, he estimated his speed at 40 to 45 

mph. The highway patrol officer estimated the speed of the 

Scout at approximately 35 to 40 mph, based on the extent of the 

damage to the vehicles. 

Prior to the collision Moore passed a vehicle driven 

by Clarence Russell, also traveling east, approximately onehalf to one mile before the collision occurred. Russell saw 

the collision 150 to 200 yards to his front. Russell testified 

he was traveling 25 to 30 mph and he thought the Scout could 

have been going 40 to 45 mph at the time it passed him. 

Cosgriff's vehicle was in its lane of traffic and he 

testified that when he first observed the Scout it seemed to be 

under control. Then it turned toward the center of the road; 

the rear slipped to the right a little bit; then the Scout turned 

again, this time to the right and the rear slipping to the left; 

then it slipped around again and came back so that the right side 

front of the 

was coming towards him, sliding sideways. The/Cosgriff vehicle 

hit the Scout on its right side. This impact occurred near the 

edge of the oil in Cosgriff's lane. 

Russell testified he saw the accident happen, and it 

looked like the Scout kind of turned sideways and went across 

the road and they hit. When they hit the snow flew up, giving 

the appearance of smoke, and the Scout went on into the borrow 

pit. 

Defendant Moore testified: 

"Q. Mr. Moore, isn't it true that you had noted 

on your trip to Montana that when there was snow 

on the highway drivers would drive their vehicles 

in such a manner that their left wheels would be 

on the center line of the highway and their right 

wheel into their lane of traffic on two lane highways, so that there were only three beaten traffic 

zones down the highway. Is that a custom that you 

noted when you were out here? A. Yes, sir. 
"Q. Immediately prior to this accident and when 

you first saw the other vehicle, isn't it true 

that you were driving in accordance with that 

custom with your left wheel on the center line 

of the highway? A. Yes, sir, I was, or approximately 

where I considered the center line of the highway. 

"Q. And was the Cosgriff vehicle, or the other 

vehicle, also being driven in that same manner? 

A. I am not at all positive how he was driving 

his vehicle. 

"Q. You didn't see whether his left wheel was 

on the center line? A. I saw his vehicle. I am 

not at all positive that he had his left wheel on 

the center line or not. 

"Q. NOW, isn't it true that you felt since your 

left wheel was on the center line that you had to 

turn into the right-hand lane of traffic to some 

degree to be out of a collision course with the 

Cosgriff vehicle? A. Not necessarily a collision 

course, but it would come extremely close to an 

oncoming car, yes, sir, and I did feel that I would 

have to move over, that is correct. 

"Q. So then in fact did you move over? A. Yes, 

sir, I did. 

"Q. And did you then move into the slush? A. I 

believe we were in the slush the entire time. I 

did have to move over, yes, sir. 

"Q. NOW, when you moved over isn't it true that 

your vehicle veered sharply to the right, the rear 

portion of your vehicle. A. Yes, sir, it did, it 

did slip to the right. 

"Q. Would you designate then that it veered sharply 

to the right, is that the way you would describe it? 

A. Well, I would assume so, yes, sir. I don't 

know what you call sharply. The back of the vehicle 

quite quickly shifted to the right. 

"Q. And did the front of the vehicle then point 

toward the center of the highway? A. To the center, 

yes, sir, it would have had to. 

"Q. And the rear of the vehicle moved toward the 

southerly borrow pit I take it of the highway? 

A. Yes, sir. 

"Q. Did the vehicle move in an oblique manner down 

the highway toward the Cosgriff vehicle? A. At the 

moment directly after the time that it slipped? 

"Q. Yes. Is that what next happened? A. I would 

say that it slipped going straight for just an 

undetermined amount of feet. 
"Q. Okay. And then after it slipped going straight 

did it then slip obliquely toward the Cosgriff 

vehicle? I guess I mean across the highway toward 

the Cosgriff vehicle? A. Yes, sir, it did. 

"Q. Did you hit the brakes? A. Yes, sir, I did. 

"Q. And did you keep the brakes locked until the 

time of impact? A. Yes, sir, I did. 

"Q. So the sequence of events then, if I understand 

you ccrrectly, is this true, you were driving with 

your left wheel on the center line, is that correct? 

A. Yes, sir. 

"Q. You then moved to the right into the right-hand 

lane of traffic, is that correct? A. Yes, sir. 

"Q. And when you did that the right rear portion of 

your vehicle slipped to the right putting the front 

portion toward the center of the highway, is that 

correct? A. Yes, sir. 

"Q. And then you hit the brakes, is that correct? 

A. Yes, sir. 

"Q. And you moved obliquely down the highway and 

struck the Cosgriff vehicle? A. Yes, sir. 

"Q. Did anything else happen between the time you 

slipped and the time you hit the Cosgriff vehicle? 

A. Yes, it did. 

"Q. What happened? A. At the time that I saw the 

Cosgriff car I determined that I would have to move 

to my right. I started to move to my right, at 

which time the back of the vehicle slipped sharply 

to the right. At the time that the vehicle slipped 

Mr. Allen as I said was asleep over on the righthand side, or semi-asleep. It startled Mr. Allen 

and he simultaneously with the slipping he grabbed 

the steering wheel. At the point that he grabbed 

the steering wheel I completely panicked and slammed 

on the brakes. At the time that I slammed on the 

brakes the vehicle slid from that point on completely 

out of control until it hit the Cosgriff automobile. 

"Q. And you claim that Allen grabbed the steering 

wheel? A. Yes, sir, I do. 

"Q. Do you claim he said anything at that time? 

A. Yes, sir, I do. 

IQ. What do you claim he said at that time? A. He 

said you are going to lose it." 

Moore in his answer raised the defense of contributory 

negligence on the part of the decedent. The quoted testimony is 

the only evidence of that contributory negligence. Since it was 
inconsistent with prior statements, it was used for the purpose 

of impeachment. 

One statement was given by Moore on December 20, 1971, 

and after the statement was read to Moore he acknowledged there 

was nothing in the statement about decedent's grabbing or touching the steering wheel. Moore explained he did not read the 

statement before signing and that he was pressed for time. 

While the investigating officer talked to Moore at the 

accident scene and also at the hospital and heard nothing about 

decedent grabbing or touching the steering wheel, it is rather 

clear his questioning of Moore was at a time when he was distraught and disturbed and, as the officer stated: 

"As near as I recall he said I lost it in the slush. 

And it was just a general type conversation with 

no real hard interrogation or pushing of facts at 

this time." 

Moore talked to decedent's widow eight days after the 

accident, and testified: 

"Q. Now isn't it true, Mr. Moore, that at that 

time Mrs. Allen asked you concerning how this 

accident occurred. A. Yes, sir, she did. 

"Q. And isn't it true that you told her that you 

lost control of the vehicle in the slush and 

ran into the Cosgriff vehicle? A. Yes, sir, I did." 

Moore explained that it was out of feelings for the family that 

he made no mention of the fact that decedent had grabbed the 

steering wheel. 

Moore's deposition was taken by one of plaintiffs' 

counsel on January 22, 1974, and therein Moore claimed that the 

decedent had grabbed or touched the steering wheel prior to the 

impact. On the same day a deposition was taken of Barney L. 

Hitt, 111, the owner of the Scout, and who at that time was still 

a defendant in the case. Hitt stated he had a conversation with 

Moore about two weeks after the accident and in relating what 

Moore told him, he stated: 
"He said that -- he said that just before they 

got to Big Timber, that he lost control of the 

car for one reason or another and it went into 

the -- into the left lane and struck the Cosgriff vehicle head-on. He said at that time 

it swerved and went into the left lane, that he 

was trying to regain control of the vehicle when 

Gene Allen grabbed the wheel, and that at the 

time of the collision, he and Gene were struggling 

at the wheel. " 

Hitt could not recall whether the conversation was at his home 

or by phone. Moore claimed the conversation occurred over the 

telephone. 

Plaintiffs raise these issued on this appeal. Was the 

district court in error in: 

(1) Permitting the reading of the deposition of Hitt 

as a prior consistent statement after impeachment? 

(2) Allowing instructions on contributory negligence on 

the part of plaintiffs' decedent? 

(3) Failing to direct a verdict on the liability issue 

at the end of plaintiffs1 case? 

(4) Refusing a portion of plaintiffs1 offered instruction concerning section 32-2152, R.C.M. 1947? 

Issue 1, was it error to admit into evidence the Hitt 

deposition? 

As we have heretofore related defendant Moore, at the 

trial, testified that after the Scout had slipped to the right, 

decedent grabbed the steering wheel. Thereafter he was impeached 

by the use of his statement of December 20, 1971, which omitted 

any reference to decedent grabbing the steering wheel. Other 

instances have been referred to previously. 

Plaintiffs contend that Kipp v. Silverman, 25 Mont. 296, 

302, 64 P. 884, (1901) is decisive in that, in their view, this 

Court held that prior consistent statements are not admissible to 

rehabilitate an impeached witness where the motive to falsify was 
the same at the time of the consistent statement as at the time 

of trial. 

Defendant calls attention to the fact that the statement 

made by Moore contained in the Hitt deposition was on or about 

December 12, 1971, two weeks after the accident and eight days 

before the December 20 statement. Also, before any suit was 

instituted and before any motive for fabrication existed and 

corroborates Moore's testimony and therefore would be admissible. 

Defendant also asserts that Kipp followed a previous suit over 

the property involved. Before the second suit was commenced 

Kipp entered into a contract and wrote the letters complained of, 

and therefore the court thought they were sham and a fabrication. 

Kipp did not state that there was in Montana no exception 

to the hearsay rule but stated: 

"To this rule one exception is recognized by 

the authorities cited. Where it is charged 

that the story of the witness is a fabrication, 

owing to an interest acquired in the result of 

the case subsequent to the time at which the 

statement in question was made, then the statement may be admitted on the theory that it was 

disinterested, and therefore probably true." 

Both parties have cited excerpts from annotations appearing in 140 A.L.R. 21, and 75 ALR2d 909. These quotations cover 

a multitude of situations appearing in the cases used as authority. We feel that one statement appearing in 75 ALR2d 918, is 

particularly fitting here: 

"While, as the cases throughout the annotation 

indicate, it is well recognized that as a general 

rule the testimony of a witness cannot be 

bolstered up or supported by showing that he has 

made statements out of court similar to and in 

harmony with his testimony on the witness stand, 

the rule is relaxed or not applied where the 

witness has been impeached or his credibility 

assailed. 

"The purpose of admitting prior consistent statements is not to prove the principal facts to be 

established, and indeed, they are not admissible 

to do so, but only to show that the witness has 
been consistent in giving the same narrative 

of fact, and that his former statements are 

consistent with his sworn testimony as given 

at the trial, and thus to some extent remove 

suspicion that his testimony has been fabricated or colored to meet the emergencies of the 

case or that his recollection has varied and 

is therefore not to be relied upon. 

"Regardless of the form of impeachment, the 

trial judge should be and is allowed a reasonable discretion in receiving or rejecting evidence of prior declarations of a witness consistent with his testimony, and the appellate court 

is loath to disregard an exercise of such discretion except in a clear case of abuse." 

From the total review of the law and the evidence, we 

do not believe the trial judge abused his discretion in permitting 

the admission of the Hitt deposition in evidence. 

Issue 2, concerns the giving of the contributory negligence 

instruction by the court. 

While plaintiffs contend that even if defendant Moore's 

version of tne accident as testified at the trial is believed, the 

decedent would have been, as a matter of law, in a sudden position of peril not brought about by his own negligence which required instant action to avoid a threatened danger. His activities in attempting to straighten the wheel, although on hindsight 

not the best or safest way to save his life, were still the acts 

of an ordinary prudent person under similar circumstances. Moore 

testified: 

"At the time that I saw the Cosgriff car I 

determined that I would have to move to my 

right. I started to move to my right, at 

which time the back of the vehicle slipped 

sharply to the right. At the time that the 

vehicle slipped Mr. Allen as I said was * * * 

asleep. It startled Mr. Allen, and he simultaneously with the slipping grabbed the steering wheel. At the point that he grabbed the 

steering wheel, I completely panicked and 

slammed on the brakes. At the time that I 

slammed on the brakes, the vehicle slid from 

that point on completely out of control until 

it hit the Cosgriff automobile." 

A reasonable interpretation of this testimony would be 
that Moore did not feel the Scout was out of control and that 

but for the fact decedent grabbed the wheel he would not have 

had the accident. The testimony of Moore is sufficient to 

support the giving of the standard contributory negligence instruction. 

This Court has said innumerable times that one witness 

may be sufficient to establish preponderance of a case, and even 

if that evidence is inherently weak, it can still be deemed 

substantial. Campeau v. Lewis, 144 Mont. 543, 398 P.2d 960, (1965). 

Issue 3 questions the denial of plaintiffs' motion for a 

directed verdict on liability. This motion was grounded on the 

theory that Moore had been shown to be negligent as a matter of 

law at the time he claimed decedent grabbed the steering wheel, 

and decedent could not have been contributorily negligent based 

upon the theory of sudden emergency. 

We cannot accept this premise in view of our holding as 

to the giving of the contributory negligence instruction. We 

find no error in the denial of the motion. 

Issue 4 concerns the refusing of a portion of plaintiffs' 

offered instruction concerning section 32-2152, R.C.M. 1947. 

Section 32-2152, R.C.M. 1947, reads: 

"Drivers of vehicles proceeding in opposite 

directions shall pass each other to the right, 

and upon roadways having width fot not more than 

one (1) line of traffic in each direction each 

driver shall. give to the other at least one-half 

(1/2) of the main-traveled portion of the roadway 

as nearly as possible." 

While plaintiffs contend there was ample testimony to 

justify the inclusion of this statute in the offered instruction, defendant asserts it would not have any application to 

the facts of this accident. It appears to us that there was 

no evidence the accident occurred while the vehicles were passing and the trial court committed no error in refusing this 
portion of the instruction which was not warranted by the 

facts. 

The judgment is affirmed. 

Chief Justice 

We concur: 

of Mr. Justice Frank I. Haswell.