No, 12175 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

ARVID FRIES, 

Plaintiff and Appellant, 

-VS - 

TOM SHAUGHNESSY, 

Defendant and Respondent, 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant : 

Ellsworth A, Cragholm, submitted on briefs, Missoula, 

Montana. 

For Respondent : 

Garlington, Lohn and Robinson, Missoula, Montana. 

Robert E. Sheridan argued, Missoula, Montana. 

Submitted: April 21, 1972 

Decided : MAY-l':! 1972 

Filed: 12 1972 
Honorable Charles Luedke, District Judge, sitting in place 

of Mr. Justice Wesley Castles, delivered the Opinion of the 

Court. 

In this action the plaintiff appeals from an order 

of the trial judge granting defendant's motion to dismiss 

the complaint at the close of plaintiff's case. A counterclaim by defendant was likewise dismissed, the defendant 

electing to not pursue the same. 

The circumstances of the case are as follows: Plaintiff owned a quarter horse mare, three years old, which he had 

pastured out under the care of another individual. At about 

10:30 P.M. on December 22, 1967, the plaintiff was eating at 

Tripp's Cafe in Lolo, Montana, when he was advised by the party 

caring for the horse that it had been hit on the road by a car. 

Plaintiff went to the scene of the accident, being about ninetenths of a mile west of Lolo, and found the horse so severely 

injured that it had to be destroyed. 

There were no eyewitnesses to the accident. Earlier 

that day it had snowed, turning to a light freezing rain at 

the time of the accident. The temperature was approximately 

26 degrees and the road was slippery and ice covered. 

The next morning at about 9:30 A.M. plaintiff returned 

to the scene to remove the horse and at that time saw some 

skid marks on the road surface. He stepped them off as 63 

steps to the apparent point of impact and 43 steps beyond that 

point during which the car apparently was spun around and 

skidded backwards. 

The area involved is in "open range" country and the 

horse had gotten out of the pasture through a gate which was 

left open. From tracks left by the horse, it had evidently 

been walking along the side of the highway towards defendant's 
oncoming car when, for reasons unknown, it crossed the road 

and was hit. Defendant reported the accident to the Highway Patrol, but no on-the-scene investigation was made. 

Plaintiff, by this action, has brought suit against 

defendant to recover the value of the horse. Plaintiff 

presented two witnesses, himself and his wife, and the facts 

recited above summarize the totality of their testimony insofar as the issue of defendant's alleged negligence is concerned. 

The trial judge dismissed the plaintiff's claim on 

the ground that to find negligence based only upon proof of 

skid marks, without the aid of expert testimony to translate 

their meaning, would be an exercise of gross speculation upon 

the part of the court. 

Plaintiff contends that the trial court erred in this 

regard in that speed itself does not determine negligence so 

that the court is not required to find an exact speed by speculation or otherwise, but only to give effect to the circumstances shown which demonstrate that defendant was driving at 

a speed (whatever it was) greater than was reasonable and proper under the conditions then existing in violation of section 

32-2144, R.C.M. 1947. 

Plaintiff's position, however, is necessarily grounded 

upon the assumption that because an accident happened, negligence existed and that because automobile skid marks appeared 

it was the driver who was negligent. This view overlooks 

some parts of the whole content of the statute upon which plaintiff relies, namely, section 32-2144, R.C.M. 1947, in that there 

must be taken into account " * * * amount and character of 

traffic, condition of brakes, weight of vehicle, grade and 
width of highway, condition of surface, and freedom of obstruction to view ahead. * * *" The mere showing of an icy 

road condition and the existence of uninterpreted skid marks, 

falls far short of demonstrating any violation by defendant 

of this statute which contemplates the whole and not only a 

part of the circumstances existing. Likewise, such a showing 

fails to show existence of any want of ordinary care or skill 

by reason of defendant's failure to do what a reasonable and 

prudent person would ordinarily have done under the circumstances of the situation, or doing what such person under the 

existing circumstances would not have done. 

The mere happening of an accident is not evidence of 

negligence. Stocking v. Johnson Flying Service, 143 Mont. 61, 

387 P.2d 312; Flansberg v. Montana Power Co., 154 Mont. 53, 

460 P.2d 263. Likewise, there is no presumption of negligence 

upon the part of a driver whose vehicle collides with livestock (section 32-1020, R.C.M. 1947) and the rule is not different because of the fact that the accident occurred in an "open 

rangen area. 

To find negligence on the basis of the limited and incomplete evidence before the court would have required speculation and conjecture on the part of the trial judge. His 

order dismissing the complaint was proper and is affirmed. 

It is noted that the defendant filed a motion to dismiss plaintiff's appeal for his failure to except to the court's 

findings of fact and conclusions of law. Ruling on this motion 

was reserved until the hearing on the merits. In view of the 

decision reached herein, no action on such motion is now 

necessary. 
Hon. Charles Luedke, District Judge, 

sitting in place of Mr. Justice 

Wesley Castles. 

e concur: 

t 

/ / Chief ~ustice 

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