No. 12114 INTHE SUPREME LOUKT OF THE STATE OF I.fONTAIW 1972

GEORGE WlLLIAM cZAlWEL, Plaintiff and Respondent,

-VS

## - DOUGLAS STUART DEES, Defendant and Appellant.

~ippeal from: District Court of theFirst Judicial District, Honorable Victor H. Fall, Judge presiding. Counsel of Record: For Appellant: Harris, Jackson & Utick, Helena, Montana. David L. Jackson argued, Helena, Montana. For Kespondent: Risken and Scribner, Helena, Montana 59601. John A. Risken argued, Helena, Montana 59601.

Submitted: June 20, 1972
Decided: 

# JUL18

# 1972 Filed:
ClerkMr. Justice Wesley Castles delivered the Opinion of the Court.
This is an appeal from a judgment entered infavor of plaintiff. Plaintiff George Gammel brought this action (1) to
recover the value of his 1960 Ope1 automobile, which was totally demolished as a result of an accident with the vehicle of defendant Douglas Dees, and (2) torecover for loss of use of his automobile. The district court of the firstjudicial district, Lewis and Clark County, sittingwithout a jury, enteredjudgment for plaintiff. The trial court found plaintiff was entitled to
recover: (1) the sum of $350 for the value of his automobile and, (2) $400 for the loss of use of hisvehicle. From thisjudgment defendant appeals. This controversy arose from a two-car accident which occurred March 22, 1970, approximately seven miles east of Lincoln, Montana atthe junction of U.S. Highway 200 and the Copper Creek Road. Defendant Dees was proceeding east on Highway 200, at approximately 70 miles per hour, when he noticed plaintiff's vehicle in front of him proceeding inthe same direction ata slower rate of speed. Plaintiff Gammel testifiedhe was traveling at about 25 miles per hour and his turn indicatorwas on, indicating that he intended tomake a left turn off Highway 200 onto Copper Creek Road. Dees slowed his car but when he was approximately two
car lengths behind plaintiff's vehicle, he placed his left turn indicator on and proceeded topass plaintiff. At about this time, plaintiff began making a lefthand turn. Defendant's vehicle struck the leftrear fender of plaintiff's automobile. Neither party was personally injured. At the scene of the accident, Highway 200 has approximately
a twenty foot wide blacktop surfacewith about three foot shoulders.The Copper Creek Road, which isa dirtand gravel county road, intersects Highway 200 ata right angle, forming a T-shaped intersection.The evidence isundisputed that there are absolutelyno highway department signs indicating the presence of the intersection. In addition, both plaintiff and defendant testified that the center line of Highway 200 was marked by a broken white line, which indicates that passing ispermitted. Both plaintiff and defendant were citedby the Montana Highway Patrol forviolating state traffic laws. Defendant for passing at an intersection, and plaintiff for making an improper turn, Evidence offered by plaintiff indicated that hisvehicle
was a total loss. The day following the accident, March 23, 1970, plaintiff purchased a replacement automobile which he used until the middle of May 1970, when he junked the replacement car, As a result of the loss of use of his car, plaintiff testified that his income was reduced from $130 per week to $40 per month, The trial court found that the loss of use had a value of $400. Because plaintiff could not prove financial responsibility to the satisfaction of the Highway Patrol ashe did not have funds tomake a cash deposit nor automobile insurance, he was further inconvenienced by the loss of his driver's license, He did not
recover his license to drive until after thejudgment of the trialcourt, which completely vindicated him. Two issues arepresented on appeal, 1. Did the district court commit error ingranting judgment for the plaintiff? 2, Did the district court err in awarding the sum of $400 for loss of use of plaintiff's automobile? We find the district court did not commit error in granting judgment for plaintiff. The record isclear that defendant, traveling ata high rate of speed and observing a slow movingvehicle ahead, did not do what a prudent personwould have done or shouldhave done under the circumstances. Prior to reaching the junction where the collision occurred, there are two signs that should place a careful driver onnotice of possible danger. First, there is a "School Bus Stop" sign and, second, there is a forest service sign indicating "Copper Creek Roadt'. Under such circumstances,defendant shouldhave anticipated that the slowmoving vehicle was going to turn and he shouldhave reduced his speed in order to ascertain the intent of the preceding vehicle. Both case law and sound reasoning support the trial court's findings. InHollandv. Konda, 142 Mont, 536, 542, 385 P.2d 272, 6ALR3rd 824, this Court, after citing section 32-2167,R,C.M. 1947,relating to turns at intersections, said: "Appellant's contention seems to be that Kaighn violated this statute in turning left on the roadway when such movement couldnot be made with reasonable safety. The proof that it was not reasonably safewas the accident itself, This is reasoning backwards and the statute is not to be interpreted that strictly. The duty imposed on the driver of a car intending to turn right or left on the highwayby this statutehas not as yet been defined by this court. However, California with an almost identical statute

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# **has interpreted it to mean that the person turning does not need to knowwith absolute certainty that it is safe,but merely that he must take reasonable precautions before turning, [Citingcases]. 

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"'We do not understand it to be the rule that a person is required to know that the turningmovement canbe made with safety. All that is required is that he take the precautions which a reasonably prudent personwould take under the circumstances reasonably appearing to him at the time.I I1
Defendant argues inhis brief that plaintiff was guilty of contributory negligencewhichwould bar any recovery. To support this contentionhe cites Bellonv. Heinzig, 347 F.2d 4, 7, (9th Cir. 1965); Sumnerv,Amacher, 150Mont. 544, 550, 437 P.2d 630;and Faucettev. Christensen, 145 Mont, 28, 36, 37, 400 P.2d 883. We find that these cases are clearly distinguishable fromthe instant case. In Bellon the court stated: 

### be ell on's argument is based upon the district court's statement that 'section 32-2167,supra, places an affirmative duty on the person turning to determine that the turn "can be made with reasonable safety." Bellon clearly failed to comply with this requirement.IIl Here, the trial court found that plaintiff exercised proper care in executinghis turn onto the Copper Creek Road. Under such circumstances, our review is confined to determiningwhether there
was substantial credible evidence to support the trial court's finding. Sumner v. Amacher, supra; Greenup

### v. Community Transit Co., 145 Mont. 39, 399 P.2d 418. We find that such substantial credible evidence existed,and the district court did not commit error in granting judgment for the plaintiff. In Sumner this Court held: 

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# * that there is substantialcredible evidence thatAmacher was negligent,proximately causing the accident, in that he failed to signal for a left turn off the highway sufficiently in advance to make the turnwith reasonable safety as required by statute, knowing of the presence of traffic behind him.II In the instant case ample evidencewas introduced to prove that plaintiffwas not negligent inmaking the turn onto Copper Creek Road. Plaintiffwas traveling at a slow rate of speed. Although some conflict exists in the record as towhether plaintiff's turn indicatorwas operating at the time, this was a question to be resolvedby the trier of the facts,and the trial court resolved this in favor of the plaintiff. We findno reason to
reverse this determination. In Faucette, actionwas brought against the defendant on the grounds that he was negligent as a matter of law inbeing on the left of the centerwhile within 100 feet of an intersection inviolation of section 32-2156,R.C.M. 1947. This Court there said:"We note that in the Leach case, supra, this court in attempting to determine the meaning of 'intersection' found that the legislaturemeant those interI sections publiclymaintained.' Following the same type of reasoning,we hold that the prohibited intersection for passing under section 32-2156,is that intersectionmarked by the highway commission as authorized and adopted asheretofore described, Such reasoning gives meaning to all of the statutesheretofore cited and to regulations adopted thereunder.

ItIn the instant situation, a driver can follow the directions of markings and signs,and in doing so isnot inviolation of section 32-2156." on Relying/Paucette as authority, defendant argues that he did not violate section 32-2156,RoCeMe 1947, in following the directions of the brokenwhite center line on Highway 200, and he was not negligent as 

### amatter of law. We do not believe this is the issue in the case before
us. Defendantwas found to be negligent inhis attempt to pass a slowmoving automobilewith its turn signal indicating that
a left turnwas about to be executed, Defendant was traveling at a high rate of speed. These facts, standing alone,would show that defendant could be found to be negligent and the issue presented in Baucette is not in dispute here. Defendantwas not negligent as a matter of law,but from the facts believed by the trier of fact, was found to be negligent in attempting to pass without any audible signal at a high rate of speed at a place where a prudent man would take reasonable precautions; and certainlywould not pass against a turn signal operating on the vehicle ahead. Defendant's second issue is whether the trial court erred in awarding the sum of $400 for loss of use of plaintiff's vehicle. Plaintiff replacedhis vehicle the day following the accident. He testified that he drove this replacement vehicle for approximately two months before junking it. Due to these facts
we find plaintiff isnot entitled to any amount for loss of use ofhis vehicle, In Stahl v. Farmers Union Oil Co., 145 Mont. 106, 113, 

### 399 P.2d 763, this Court said: "The general rule on damages is that the owner can recover for being deprived of the use of a damaged vehicle only for the period of time reasonablynecessary inmaking repairs, [Citing cases]

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# ** damages for loss of use may not be limited to the market value of the vehicle but may include additional damages for loss of use during the period reasonablyrequired for replacement,I1 Here,plaintiff replacedhis demolished vehicle on the day following the accident, therefore the trial courtwas in
error in awarding the sum of $400 for loss of use of the vehicle, Inhis brief on appeal plaintiff-respondent urges this Court to dismiss the appeal based upon numerous extensions of time securedby defendant-appellant for filing his brief, Since the time for filing of appellant's briefwas extendedby this Court,we find no merit in respondent's request, The cause is remanded to the district courtwith instructions that the final judgment be appropriatelymodified to comply with this opinion. Each party shall bear his own costs.

~ssociatb) Justice


# / / Chief .Justice
/

Associate Justices,