No. 12084 INTHE 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:

# Jut2

## 6 19z Filed: 

### JUL

### 26

## 19mMr. Justice John Conway Harrison delivered the Opinion of the Court,This isan appeal from a verdict and judgment of the eighthjudicial district, county of Cascade, Hon. Truman Bradford, presiding with ajury, in favor of plaintiff Joseph Pachek and against defendant Norton Concrete Company. Defendant appeals from thejudgment and denial of itsmotion for a new trial. Plaintiff brought the action torecover 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 toGreat 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 toan interstatehighway. This road prior to the construction of the interstate, had been the main highway between the citiesof Great Falls and Helena. The frontage road has a hard surface some 22 to 24 feet inwidth with a painted center line. The accident occurred about sixand one-half miles south of Cascade where a gravel road leading toTintinger'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 arerailroad tracks which

run parallelwith 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 tractorpulling two trailer units and was sixty feet long, eight feetwide and eight feethigh. On that day three highway employees were putting ina culvert adjacent to the frontage road where it intersectedwith the road tothe gravel pit. They had cut half of the entrance road in order toput inthe culvert and to do thiswere using a front end loader. The loader was working inthe borrow pit and was visible toboth Garman and Pachek. As Garman drove from the gravel pit he stopped atthe railroad tracks and shifted into "deep under", the tractor's lowest gear. He testifiedhe looked up and down the frontage road but he did not see the Pachek car. Garman testified that from the stop atthe railroad tracks he let the truck roll forward slowly, not putting his foot on the accelerator ashe 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 untilhe 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 inorder to see the wheel of the trailers. He was aware of the cut made by the highway crew and was trying to fithisvehicle onto the half of the intersection leftby 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 drivenby Pachek, The center of Pachek's 1965 Lincoln Continental hit the left frontwheel of the tractor, which was on orjust over the center line. The left frontwheel of ~achek's car came torest on the yellow linein its lane of traffic. Pachek testified he was traveling between 35 to50 miles per hour atthe 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 stopbut instead it pulled in front of him and turned intohis direction of travel.

### As a result of the collision Pachek received severe injuries conswing of a subduralhematoma and back and body injuries. Thehead 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 employeeswho were witnesses. 

### On the basis ofhis observations and the statements given to him,Hendrickson testified that, inhis 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 theywill be considered together. Issue 

### 1. The court erred in allowing the highway patrolman to statehis 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 ofnegligence of Garman or that such

### negligencewas 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, 114Mont. 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, 90Mont. 366, 3 P,2d 283; Lamb v, Page, 153 Mont. 171, 

### 455 P.2d 337. Issue 2. Pachekwas contributorily negligent as 

### a matterof law and the court erred indenying defendant's motion for a directed verdict. This issue alsohas no merit for the evidence nullifies it. Here, Garman, the truck driver, testified that sittingup inhis cab he had an unobstructed view of the frontage road; that afterreaching 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 toanticipate 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 topull directly out onto the road. The trialcourt properly refused to grant defendant's motion. Issue 

### 3. Defendant alleges itwas error topermit Dr. McGregor totestify 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 thathe had been ~achek's physician for some fifteenyears; that he treated him as soon as he arrived at the hospital and throughout his period of recovery, Upon Pachek's arrivalatthe hospital, Dr. McGregor diagnosed the subdural hematoma and called ina neurologist for consultation. 

### The neurologist, Dr. Syrenne, confirmed the diagnosis and operated torelieve the subdural hematoma. Throughout Pachek's hospitalization Dr. McGregor conferred with Dr. Syrenne; he kept allthe hospital records except for the surgery and he examined those for post-operative treatment. He testifiedhe 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 inKlaus v. Hillberry, 157Mont. 277, 286, 485 P.2d 54:It 

### Medical testimony must of necessity inmany instancesbe based on informationacquired from outside sources, examinationsby other doctors, nurses notes and observations,X-rays, and other tools of the professionused in making a diagnosis," We reaffirm this statement and in so holding, findno 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 therapywas necessary to partially return him to some state of existence, InWilson v. Gehring, 152Mont. 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 damagesbased on conflicting evidence, that the amount thereof to be paid for personal injury is peculiarlywithin the province of the jury,andwe 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 shouldnot be disturbed.

(Citing cases). II 

### Issue 5, The court erred in refusing defendant's proposed instructionbased on the doctrine of last clear chance, We findno error for such an instruction shouldnot be given in a case involving the collision of moving vehicles where the act creating the peril occurs practically simultaneouslywith the happening of the accident,and where neither party can fairly be said to have had a last clear chance to avoid the accident. Storyv, 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 inregard to entering a highway from a private road were inerror, but also argues the district court erred inrefusing togive 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 thishighway in the face of the oncoming 1947, Pachek car, Section 32-2173, 

### R,c.M,/ states: "The driver of a vehicle about toenter or cross a highway from a private road, driveway or ublic approach ramp shallyield the right of way

# E-f to a 1 vehicles approaching on saidhighway

# ." (Emphasis supplied) Defendant contends the exit onto the frontage road was not

a private roadway because itwas part of the stateright-of-way. Under the statute thiswould make no difference, because itwould be certainly a public approach ramp. As the statuteclearly states, itwas the duty of the driver of the truck, not Pachek, toyield the right-of-way. The court's instructions on (1) contributory negligence, (2) duty of the plaintiff tokeep a reasonable lookout for possible danger tohimself, (3) duty of plaintiff using the public highway tothe effect that one who has the right-of-way nevertheless must

use ordinary care toavoid causing an accident, and 

### (4)that a violation of the law 

### is of no consequence unless proximately causing the accident, allgave thejury opportunity to determine whether

ornot Pachek used due care indrivinghis automobile atthe point and time inquestion. Defendant objects tothe refusal of his instruction which went tothe failure toproduce stronger evidence when itwas available. This was inreference toDr. Syrenne who operated on the subduralhemetoma. Dr. McGregor was the attending and treating physician throughout the entirecase. He fully and completelyexplained the injury, the damage, the surgicalprocedures involved, the treatment, and the prognosis. Nothing more was needed.Defendant alleges error indenying his proposed instructions requiring and binding plaintiff to an absolute duty to exercisehis intelligence todiscover and avoid dangers that may threatenhim. Plaintiff was not under an absolute duty, but only a duty touse reasonable care. Defendant objects to therefusing of his instructions in regard tothe duty of a motorist todiscover danger that may threatenhim; that he must look and see; and that he cannot ignore an obvious danger and reasonable care. We findno evidence was submitted to substantiate the claim that plaintiff knew he was indanger, nor was evidence introduced to indicate plaintiff didnot use reasonable care. Defendant alleges the district court erred inrefusing givehis instruction inregard tothe failureof Pachek sound hishorn towarn the truck driver of hisapproach. The section involved is 32-21-145, 

### R.C.M. 1947, which inpertinent part provides: "The driver of a motor vehicle shallwhen reasonably necessary to insure safe operation give audible warning with hishorn but shallnot otherwise use such horn when upon a highway. II The rule of law on sounding a horn requires that the driver have some reason tobelieve that safe operation requires the sounding of the horn, Here, plaintiff believed the driverwould stopbefore entering the highway. He had a right toanticipatehe would stop by law. If the driver, under these circumstances, has a duty to blow hishorn, itwould require every driver atevery intersect road in the statetoblow his horn, believilig that the driver approaching the intersectionwas going to violate the law. It was only after the truck was on the highway that Pachek would have any duty inthis

### regard and by that time the sudden emergencyhe faced did not requirehim 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 itmust consider 

### (1) negligence, 

### (2) contributorynegligence, 

### (3) damages, and 

### (4) proximate cause, in that order. Objectimto this proposed instructionwas that it takes from the jury its constitutional right to determinewhich issue it wants to discuss or determine in the manner it decides,and the court does not have the province to instruct the jury inwhat ordek it should takeup its deliberations. Since the proposed instruction

### was notmandatory,no error was committed. Judgment of the district court is affirmed.

3 

### Associate Justice



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~ssociate Justices.