No, 12175 IN

### THE SUPREME COURT OF THE STATE OF MONTANA 1972

ARVID FRIES, Plaintiff andAppellant,

-VS

# - TOM SHAUGHNESSY, Defendant and Respondent,

Appeal from: District Court of the Fourth Judicial District, Honorable JackL. Green, Judge presiding. Counsel of Record: ForAppellant

### : EllsworthA, Cragholm, submitted on briefs, Missoula,

Montana. For Respondent

### : Garlington, Lohn and Robinson, Missoula, Montana. Robert E. Sheridanargued, Missoula, Montana.

Submitted: April 

### 21, 1972 Decided: 

## MAY-l':! 

## 1972 Filed: 

## 121972Honorable Charles Luedke, District Judge, sitting in place of Mr. JusticeWesley 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 counterclaimby defendantwas likewisedismissed, 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 ithad to be destroyed. Therewere 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 nextmorning 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 apparentpoint of impact and 43 steps beyond that point during which the car apparentlywas 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 leftby the horse, it had evidently been walking along the side of the highway towards defendant'soncoming carwhen, for reasons unknown, it crossed the road and was hit. Defendant reported the accident to the Highway Patrol,but no on-the-scene investigationwas 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 thepart 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 defendantwas driving at

a speed (whateveritwas) 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 andwidth 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 skidmarks, falls far short of demonstrating any violation by defendant of this statutewhich 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 circumstancesof the situation,or doing what suchperson under the existing circumstanceswould not have done. Themere happening of an accident is not evidence of negligence. Stocking v. Johnson Flying Service, 143Mont. 61, 387 P.2d 312;Flansberg v. Montana Power Co., 154Mont. 53, 460 P.2d 263. Likewise, there is no presumption of negligence upon the part of a driverwhose 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 rangenarea. To find negligence on the basis of the limited and incomplete evidence before the courtwould have required speculation and conjecture on the part of the trial judge. His order dismissing the complaintwas proper and is affirmed. It is noted that the defendant filed amotion to dismiss plaintiff's appeal for his failure to except to the court's findings of fact and conclusions of law. Ruling on thismotion

was reserved until the hearing on themerits. Inview of the decision reached herein, no action on such motion isnow necessary.Hon. Charles Luedke, District Judge, sitting in place of Mr. Justice Wesley Castles.

e concur: t 

### / / Chief ~ustice

A ociate

## ust tide



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