No. 

### 12865 INTHE SUPREME COURT OF THE STATE OF MONTANA 

### 1975

JACQUELINE 

### ALLEN eta

### 1.

# , Plaintiffs and Appellants,

-vs

## - WALTER S. YOORE, JR., et 

### al., Defendants and Respondents,

dppeal from: District Court of the SixthJudicial 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

## 1975Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. In thiscause plaintiffs arethe widow, personal representative, and children of Eugene Tyler Allen, deceased, who brought thiswrongful deathand survival action in the districtcourt, Sweet Grass County. Originally the defendants

were Walter S. Moore, Jr., and one Barney L. Hitt, 111. A motion for summary judgment for Hittwas granted prior totrial. The jury returned a verdict fordefendant Moore and judgment

was entered. From thisjudgment 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 timewere: the sky was overcast, it had been snowing, and therewas slush on the highway. The vehicles involved inthe collisionwere: (1)an International Scout vehicle driven by Moore and inwhich decedent

was inthe right front seat and one Ed Sillswas inthe rear seat

area on a platform. Sillswas asleep atthe timeof the collision. The Scout was proceeding east. (2) A Chevrolet station wagon, driven by Gerald Cosgriff, hiswife Donna inthe right front seat, daughter Sarah on her mother's lap, and their sons Edward and David inthe rear seats. The Chevrolet 

### was proceeding west. The roadway where the collision occurred was straight and level, with a broken center linepermitting passing; there was were two lanes for traffic and the roadway/approximately 22 feet wide. Cosgriff estimated the speed of the Scout atthe timehe first saw it, asbeing inexcess of 50 mph. Moore estimated his speed prior tothe collision at30 to 35 mph, but in

### a statementgiven on December 20, 1971, he estimated his speed at40 to 45 mph. The highway patrol officer estimated the speed of the Scout atapproximately 35 to 40mph, based on the extent of the damage tothe vehicles. Prior tothe collisionMoore passed a vehicle driven by Clarence Russell, also traveling east, approximately onehalf toone milebefore the collision occurred. Russell saw the collision 150 to 200 yards tohis front. Russell testified he was traveling 25 to 30 mph and he thought the Scout could have been going 40 to 45mph atthe time it passed him. Cosgriff's vehicle was in its lane of traffic and he testified thatwhen he firstobserved the Scout it seemed tobe under control. Then it turned toward the center of theroad; the rear slipped to the right a littlebit; then the Scout turned again, this time tothe right and the rear slipping tothe left; then it slipped around again and came back so that theright side front of the was coming towards him, sliding sideways. The/Cosgriff vehicle hitthe Scout on 

### itsright side. This impact occurred near the edge of the oilinCosgriff'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 flewup, 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 triptoMontana thatwhen therewas snow on the highway drivers would drive their vehicles in such a manner that their leftwheels would be on the center lineof the highway and their right wheel intotheir lane of traffic on two lane highways, so that therewere 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 tothis accident and when you first saw the other vehicle, isn't it true that you were driving inaccordance with that custom with your leftwheel on the center line of the highway? A. Yes, 

### sir, I 

### was, or approximately where I considered the center lineof the highway. "Q. And was the Cosgriff vehicle, or the other vehicle, alsobeing driven inthat same manner? A. I am not atallpositive how he was driving his vehicle. "Q. You didn't seewhether his leftwheel was on the center line? A. I saw hisvehicle. I am not atallpositive that he had his leftwheel on the center line or not. "Q. NOW, isn't it true thatyou felt since your leftwheel was on the center line that you had to turn into the right-hand lane of traffic to some degree tobe out of a collision course with the Cosgriff vehicle? A. Not necessarily a collision course, but 

### it would come extremely close toan oncoming car, yes, 

### sir, and I did feel that I would have tomove over, that 

### iscorrect. "Q. So then infact did you move over? A. Yes, 

### sir, I did. "Q. And didyou then move into the slush? A. I believe 

### we were inthe slush the entiretime. I did have tomove over, yes, 

### sir. "Q. NOW, when you moved over isn't it true that your vehicle veered sharply tothe right, the rear portion of your vehicle. A. Yes, 

### sir, it did, it did sliptothe right. "Q. Would you designate then that it veered sharply tothe right, 

### isthat 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 thevehicle quite quickly shifted tothe 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 inan obliquemanner down the highway toward the Cosgriff vehicle? A. Atthe moment directly after the time that it slipped? "Q. Yes. Is that what next happened? A. I would say that it slipped going straight forjust an undetermined amount of feet."Q. Okay. And then after it slipped going straight did it then slipobliquely toward the Cosgriff vehicle? I guess I mean across the highway toward the Cosgriff vehicle? A. Yes, 

### sir, it did. "Q. Did you hitthe 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 leftwheel 

### on the center line, isthat correct? A. Yes, 

### sir. "Q. You then moved tothe 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 tothe rightputting 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 elsehappen between the time you slipped and the timeyou hit the Cosgriff vehicle? A. Yes, it did. 

### "Q. What happened? A. Atthe 

### timethat I saw the Cosgriff car I determined that I would have tomove tomy right. I started tomove tomy right, at which 

### timethe back of the vehicle slipped sharply tothe right. Atthe time that the vehicle slipped Mr. Allen as I saidwas asleep over on the righthand side, or semi-asleep. It startledMr. Allen and he simultaneously with the slippinghe grabbed the steering wheel. Atthe point that he grabbed the steeringwheel I completely panicked and slammed on the brakes. Atthe 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 thatAllen 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 atthat time? A. He said you are going to lose it." Moore inhis 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 statementwas 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: "Asnear as I recall he said I lost it in the slush. And itwas 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 GeneAllen grabbed the wheel, and that at the time of the collision,he and Gene were struggling at the wheel. " 

### Hitt could not recallwhether 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 plaintiffs1case? 

### (4) Refusing a portion of plaintiffs1offered 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 steeringwheel. Thereafter he was impeached by the use of his statement of December 20, 1971,which omitted any reference to decedent grabbing the steeringwheel. 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 themotive to falsify wasthe same atthe time of the consistent statement as atthe time of trial. Defendant calls attention tothe fact that the statement made by Moore contained inthe Hittdepositionwas 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 corroboratesMoore's testimony and therefore would be admissible. Defendant also asserts that Kipp followed a previous suitover theproperty involved. Before the second suitwas commenced Kipp entered into a contract and wrote the letterscomplained of, and therefore the court thought they 

### were sham and a fabrication. Kipp did not statethat there

### was inMontana no exception tothe hearsay rule but stated: "To thisrule one exception isrecognized by the authorities cited. Where 

### it 

### is charged that the story of the witness is a fabrication, owing toan interest acquired in the result of the case subsequent tothe time atwhich the statement inquestion 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 140A.L.R. 21, and 75 ALR2d 909. These quotations cover
a multitude of situations appearing inthe cases used asauthority. We feel that one statement appearing in 75 ALR2d 918, is particularly fittinghere: "While, asthe cases throughout the annotation indicate, it iswell recognized that asa general rulethe 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 isrelaxed or not applied where the witness has been impeached or hiscredibility assailed. "The purpose of admitting prior consistent statements is not toprove the principal facts tobe established, and indeed, they arenot admissible todo so, but only to show that the witness hasbeen consistent ingiving the same narrative of fact, and that his former statements are consistentwith his sworn testimony asgiven atthe trial, and thus to some extent remove suspicion that his testimony has been fabricated or colored tomeet the emergencies of the case or that hisrecollection has varied and istherefore not tobe relied upon. "Regardless of the form of impeachment, the trialjudge should be and isallowed a reasonable discretion inreceiving orrejectingevidence of prior declarations of a witness consistent with his testimony, and the appellate court is loath todisregard an exerciseof such discretion except ina clear case of abuse." From the total review of the law and the evidence, we do not believe the trialjudge abused his discretion inpermitting the admission of the Hittdeposition inevidence. Issue 2, concerns the giving of the contributorynegligence instruction by the court. While plaintiffs contend that even if defendant Moore's version of tne accident astestified atthe trialisbelieved, the decedent would have been, asa matter of law, ina sudden position of peril not brought about by his own negligence which required instant action toavoid a threatened danger. Hisactivitiesinattempting to straightenthe wheel, although on hindsight not the best or safestway 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 tomove tomy right. I started tomove tomy right, at which time the back of the vehicle slipped sharply tothe right. Atthe 

### timethat the vehicle slipped Mr. Allen as I said was 

## * * 

## * asleep. It startled Mr. Allen, and he simultaneously with the slipping grabbed the steering wheel. Atthepoint that he grabbed the steering wheel, I completely panicked and slammed on the brakes. Atthe time that I slammed on the brakes, the vehicle slid from thatpoint on completely out of control until it hit the Cosgriff automobile." A reasonable interpretation of thistestimony would bethat Moore did not feel the Scout was out of control and that but for the factdecedent 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 timesthat one witness may be sufficient toestablish preponderance of a case, and even if that evidence is inherently weak, it can still be deemed substantial. Campeau v. Lewis, 144Mont. 543, 398 P.2d 960, (1965). Issue 3questions the denial of plaintiffs' motion for a directed verdict on liability. This motion was grounded on the theory that Moore had been shown tobe negligent asa matter of law atthe time he claimed decedent grabbed the steeringwheel, and decedent could not have been contributorilynegligent based upon the theory of sudden emergency. We cannot accept thispremise inview of our holding as tothe givingof the contributory negligence instruction. We find no error inthe 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 inopposite directions shall pass each other totheright, and upon roadways having width fotnot more than one (1)lineof traffic in each direction each driver shall. give to the other atleastone-half (1/2) of themain-traveled portion of the roadway as nearly aspossible." While plaintiffs contend there was ample testimony to justify the inclusion of this statute inthe offered instruction, defendant asserts it would not have any application to the factsof this accident. It appears tous that there was

no evidence the accident occurred while the vehicles were passing and the trialcourt committed no error inrefusing thisportion of the instructionwhich was not warranted by the facts. The judgment 

### is affirmed.

Chief Justice Weconcur:

of Mr. JusticeFrank I. Haswell.