No. 12084 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 , 

JOSEPH PACHEK, 

Plaintiff and Respondent, 

-vs - 

NORTON CONCRETE CO., a corporation, 

Defendant and Appellant. 

Appeal from: District Court of the Elghth Judicial District, 

Honorable Truman G. Bradford, Judge presiding. 

Counsel of Record: 

For Appellant : 

Smith, Ernmons and Baillie, Great Falls, Montana. 

Robert J. Emmons argued, Great Falls, Montana. 

For Respondent : 

Hoyt and Bottomly and Gabriel, Great Falls, Montana. 

Richard V. Bottomly argued, Great Falls, Montana. 

Submitted: June 15, 1972 

Decided : Jut 2 6 19z 

Filed : JUL 2 6 19m 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court , 

This is an appeal from a verdict and judgment of the 

eighth judicial district, county of Cascade, Hon. Truman Bradford, 

presiding with a jury, in favor of plaintiff Joseph Pachek and 

against defendant Norton Concrete Company. Defendant appeals 

from the judgment and denial of its motion for a new trial. 

Plaintiff brought the action to recover for personal 

injuries resulting from a truck and automobile collision, 

Joseph Pachek, a man 79 years of age at the time of the 

accident on November 25, 1969, was returning to Great Falls from 

a cabin located south of the town of Cascade when he became involved in the accident. He was traveling on a frontage road 

running parallel to an interstate highway. This road prior to the 

construction of the interstate, had been the main highway between 

the cities of Great Falls and Helena. The frontage road has a 

hard surface some 22 to 24 feet in width with a painted center 

line. The accident occurred about six and one-half miles south 

of Cascade where a gravel road leading to Tintinger's Gravel Pit 

intersects the frontage road. The gravel pit is located some 

1,000 feet from the frontage road. Some 76 feet from the frontage 

road and between the road and gravel pit are railroad tracks which 

run parallel with the road. A gravel road runs from the gravel pit 

across the tracks to intersect the frontage road. 

On the day of the accident, November 25, 1969, a Norton 

Concrete Company vehicle driven by Herbert Garman, was hauling 

a load of gravel from the pit and became involved in the accident 

with plaintiff. The vehicle was a tractor pulling two trailer 

units and was sixty feet long, eight feet wide and eight feet high. 

On that day three highway employees were putting in a culvert 

adjacent to the frontage road where it intersected with the road to 
the gravel pit. They had cut half of the entrance road in order 

to put in the culvert and to do this were using a front end loader. 

The loader was working in the borrow pit and was visible to both 

Garman and Pachek. 

As Garman drove from the gravel pit he stopped at the 

railroad tracks and shifted into "deep under", the tractor's 

lowest gear. He testified he looked up and down the frontage road 

but he did not see the Pachek car. Garman testified that from the 

stop at the railroad tracks he let the truck roll forward slowly, 

not putting his foot on the accelerator as he started towards the 

frontage road. He estimated his speed at from one to five miles 

per hour. He testified that from the time he left the railroad 

tracks until he turned onto the frontage road he did not look up 

or down the frontage road, but rather he was working with mirrors 

on both sides of the cab in order to see the wheel of the trailers. 

He was aware of the cut made by the highway crew and was trying 

to fit his vehicle onto the half of the intersection left by the 

construction crew. 

As he approached the frontage road he did not turn on any 

turn signals, and without stopping pulled onto the frontage road 

turning into the approaching car driven by Pachek, The center 

of Pachek's 1965 Lincoln Continental hit the left front wheel of 

the tractor, which was on or just over the center line. The left 

front wheel of ~achek's car came to rest on the yellow line in 

its lane of traffic. 

Pachek testified he was traveling between 35 to 50 miles 

per hour at the time of the accident. He observed the tractor 

and trailers about half way between the frontage road and the 

gravel pit. When the truck was some five feet from the intersection, he thought the truck was going to stop but instead it 

pulled in front of him and turned into his direction of travel. 
As a result of the collision Pachek received severe 

injuries conswing of a subdural hematoma and back and body 

injuries. The head injury resulted in impairment of Pachek's 

memory, loss of speech, dizzy spells and mental confusion. 

As a result, Pachek physically and mentally deteriorated and 

his daughter spent months with him, teaching him to speak. 

Montana highway patrolman Lewis Hendrickson investigated 

the accident, arriving at the scene approximately one-half hour 

after it occurred. He interviewed the two drivers and the three 

highway employees who were witnesses. On the basis of his observations and the statements given to him, Hendrickson testified 

that, in his opinion, the cause of the accident was a right-of-way 

violation. 

The jury returned a verdict in favor of plaintiff Pachek 

and awarded him $20,00O,p;i-- ,&GI 2- $2,- . Defendant Norton Concrete Company raises 23 issues on appeal. 

Issues 6 through 23 all concern instructions given or refused 

and they will be considered together. 

Issue 1. The court erred in allowing the highway patrolman 

to state his opinion as to the cause of the accident. We find 

no merit in this issue. Here, the driver,Garman, had already 

admitted he was negligent in entering the highway. This is not 

a case where there is a close question on the issue of violation 

of the right-of-way, and where an unfounded opinion of an expert 

might sway the jury one way or another. The patrolman did not 

testify to the ultimate question of negligence of Garman or that 

such negligence was the proximate cause of the injuries to Pachek, 

We find no invasion of the jury's province in allowing this testimony, In re ~ickich's Estate, 114 Mont. 258, 136 P.2d 223. This 

Court has repeatedly held that expert opinion evidence is admissible 

in explaining the cause of a particular accident. Demarais v. 

Johnson, 90 Mont. 366, 3 P,2d 283; Lamb v, Page, 153 Mont. 171, 

455 P.2d 337. 

Issue 2. Pachek was contributorily negligent as a matter 
of law and the court erred in denying defendant's motion for a 

directed verdict. This issue also has no merit for the evidence 

nullifies it. Here, Garman, the truck driver, testified that 

sitting up in his cab he had an unobstructed view of the frontage 

road; that after reaching the tracks he never once looked to see 

if there was traffic on the frontage road; and that he pulled onto 

that frontage road without looking. Too, he was aware that 

vehicular traffic on the frontage road would have the right-of-way 

but he failed to anticipate such traffic. Under these facts Pachek, 

who saw the slow moving vehicle coming up to the intersection, had 

every right and reason to expect it to stop and yield the right-ofway and he received no visual or sound warnings from Garman that 

he was going to pull directly out onto the road. The trial court 

properly refused to grant defendant's motion. 

Issue 3. Defendant alleges it was error to permit Dr. 

McGregor to testify as to any brain damage of Pachek when he was 

not qualified and that such statements by Dr. McGreor were hearsay 

and incompetent, 

Dr. ~c~regor's testimony indicated that he had been ~achek's 

physician for some fifteen years; that he treated him as soon as 

he arrived at the hospital and throughout his period of recovery, 

Upon Pachek's arrival at the hospital, Dr. McGregor diagnosed the 

subdural hematoma and called in a neurologist for consultation. 

The neurologist, Dr. Syrenne, confirmed the diagnosis and operated 

to relieve the subdural hematoma. 

Throughout Pachek' s hospitalization Dr. McGregor conferred 

with Dr. Syrenne; he kept all the hospital records except for the 

surgery and he examined those for post-operative treatment. He 

testified he knew the surgical procedures used and by the records 

knew the size of the hematoma. Dr. ~cGregor's testimony was 

properly admitted. This Court recently held in Klaus v. Hillberry, 

157 Mont. 277, 286, 485 P.2d 54: 
It Medical testimony must of necessity in many 

instances be based on information acquired from 

outside sources, examinations by other doctors, 

nurses notes and observations, X-rays, and other 

tools of the profession used in making a diagnosis," 

We reaffirm this statement and in so holding, find no merit in 

defendant's issue 3. 

Issue 4. The court erred in denying the motion for a new 

trial in that the damages of $20,000 were excessive; the evidence 

was insufficient to justify the verdict; and the court erred in 

denying defendant's motion to alter or amend the judgment. 

We find this issue to be without merit, Plaintiff suffered 

grievous injuries that necessitated surgery and considerable 

hospitalization, Lengthy post-hospital therapy was necessary to 

partially return him to some state of existence, In Wilson v. 

Gehring, 152 Mont. 221, 226, 448 P.2d 678, this Court set down 

the rule concerning this type of argument: 

It It has been our position in reviewing damages based 

on conflicting evidence, that the amount thereof to 

be paid for personal injury is peculiarly within the 

province of the jury, and we will not disturb such 

finding unless the result is such as to shock the 

conscience and understanding of the court. Such is 

not the case here, this judgment has reasonable support in the evidence and it should not be disturbed. 

(Citing cases). II 

Issue 5, The court erred in refusing defendant's proposed 

instruction based on the doctrine of last clear chance, 

We find no error for such an instruction should not be 

given in a case involving the collision of moving vehicles where 

the act creating the peril occurs practically simultaneously with 

the happening of the accident, and where neither party can fairly 

be said to have had a last clear chance to avoid the accident. 

Story v, Cox, 130 Cal.App.2d 231, 278 P.2d 720. In addition, it 

is obvious from the facts that Pachek never knew of his perilous 

situation so that he could avoid the collision, Here, the doctrine 

of last clear chance has no applicability. 

Issues 6 through 23, Instructions given or refused, 
Defendant argues that instructions given in regard to 

entering a highway from a private road were in error, but also 

argues the district court erred in refusing to give defendant's 

proposed instructions on the same issue, We find the instructions 

given by the district court were proper. Pachek was the driver of 

the automobile traveling on the frontage road and the driver of 

the truck entered onto this highway in the face of the oncoming 

1947, Pachek car, Section 32-2173, R,c.M,/ states : 

"The driver of a vehicle about to enter or cross 

a highway from a private road, driveway or ublic 

approach ramp shall yield the right of way E-f to a 1 

vehicles approaching on said highway . " (Emphasis 

supplied) 

Defendant contends the exit onto the frontage road was not 

a private roadway because it was part of the state right-of-way. 

Under the statute this would make no difference, because it would 

be certainly a public approach ramp. As the statute clearly states, 

it was the duty of the driver of the truck, not Pachek, to yield 

the right-of-way. 

The court's instructions on (1) contributory negligence, 

(2) duty of the plaintiff to keep a reasonable lookout for possible 

danger to himself, (3) duty of plaintiff using the public highway 

to the effect that one who has the right-of-way nevertheless must 

use ordinary care to avoid causing an accident, and (4) that a 

violation of the law is of no consequence unless proximately causing 

the accident, all gave the jury opportunity to determine whether 

or not Pachek used due care in driving his automobile at the point 

and time in question. 

Defendant objects to the refusal of his instruction which 

went to the failure to produce stronger evidence when it was 

available. This was in reference to Dr. Syrenne who operated on 

the subdural hemetoma. Dr. McGregor was the attending and treating 

physician throughout the entire case. He fully and completely 
explained the injury, the damage, the surgical procedures involved, the treatment, and the prognosis. Nothing more was 

needed. 

Defendant alleges error in denying his proposed instructions requiring and binding plaintiff to an absolute duty to 

exercise his intelligence to discover and avoid dangers that 

may threaten him. Plaintiff was not under an absolute duty, 

but only a duty to use reasonable care. 

Defendant objects to the refusing of his instructions in 

regard to the duty of a motorist to discover danger that may 

threaten him; that he must look and see; and that he cannot 

ignore an obvious danger and reasonable care. We find no evidence was submitted to substantiate the claim that plaintiff 

knew he was in danger, nor was evidence introduced to indicate 

plaintiff did not use reasonable care. 

Defendant alleges the district court erred in refusing 

give his instruction in regard to the failure of Pachek 

sound his horn to warn the truck driver of his approach. The 

section involved is 32-21-145, R.C.M. 1947, which in pertinent 

part provides: 

"The driver of a motor vehicle shall when reasonably 

necessary to insure safe operation give audible 

warning with his horn but shall not otherwise use 

such horn when upon a highway. I I 

The rule of law on sounding a horn requires that the driver 

have some reason to believe that safe operation requires the sounding 

of the horn, Here, plaintiff believed the driver would stop before 

entering the highway. He had a right to anticipate he would stop 

by law. If the driver, under these circumstances, has a duty to 

blow his horn, it would require every driver at every intersect road 

in the state to blow his horn, believilig that the driver approaching 

the intersection was going to violate the law. It was only after 

the truck was on the highway that Pachek would have any duty in this 
regard and by that time the sudden emergency he faced did not 

require him to do a useless act. Any instruction in this regard 

was inapplicable to the factual situation in this case. 

Next, defendant argues the district court erred in refusing 

to give his proposed instruction preemptorily instructing the 

jury that it must consider (1) negligence, (2) contributory negligence, (3) damages, and (4) proximate cause, in that order. 

Objectimto this proposed instruction was that it takes from the 

jury its constitutional right to determine which issue it wants to 

discuss or determine in the manner it decides, and the court does 

not have the province to instruct the jury in what ordek it should 

take up its deliberations. Since the proposed instruction was 

not mandatory, no error was committed. 

Judgment of the district court is affirmed. 

3 

Associate Justice 

-- -------- 

~ssociate Justices.