No. 89-306 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ART VENDER and MARY VENDER, 

plaintiffs and Appellants, . -VS- T" CB 

KEVIN D. STONE and ST. PAUL FIRE AND MARINE INSURANCES C) 

Defendants and Respondents. -L 2z . - , . 

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APPEAL FROM: District Court of the Eighth Judicial ~istki&, 

In and for the County of Cacade, , , : t 1-~ 

The Honorable Joel Roth, Judge presidin~.,.. I- 

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COUNSEL OF RECORD: 

For Appellant: 

Richard F. Gallagher, Church, Harris, Johnson & 

Williams, Great Falls, Montana 

For Respondent: 

Robert J. Emmons, Emmons & Coder, Great Falls, 

Montana 

Kevin D. Stone, Great Falls, Montana (Pro Se) 

Submitted: September 20, 1990 

Filed: 

~ecided: November 9, 1990 
Justice John C. Sheehy delivered the Opinion of the Court. 

This action arises out of a 1984 automobile accident in Great 

Falls, Montana, involving vehicles driven by the plaintiff, Art 

Vender, and the defendant, Kevin Stone. The jury verdict in the 

Eighth Judicial District Court, Cascade County, concluded that Art 

Vender was damaged in the amount of $3,313.90, Mary Vender incurred 

no damages, and Art Vender and Kevin Stone were each 50% negligent. 

The Venders filed a motion for new trial. When the District Court 

did not rule on the motion within the prescribed time, the Venders 

appealed. We reverse and remand for a new trial. 

Appellants present two issues for review: 

1. Did the District Court err in instructing the jury on 

comparative negligence? 

2. Did the District Court err by disallowing oral testimony 

of Art Vender's educational expenses and instructing the jury to 

disregard Vender's previously admitted oral testimony of those 

expenses? 

The collision occurred at the intersection of Twentieth Street 

and Tenth Avenue South in Great Falls, Montana, on April 18, 1984, 

at approximately 9:00 a.m. Vender, alone in his station wagon, 

approached the intersection traveling south on Twentieth Street. 

The intersection is controlled by a traffic light. When Vender 

approached the intersection, the light was red, and one car ahead 

of him was stopped waiting for the light to change. When the light 

changed, Vender pulled into the intersection, following the car 
ahead of him. Vender intended to make a left turn east on Tenth 

Avenue South. Here is the testimony from Vender as to what 

occurred: 

Q. What did you see when you approached the intersection 

of Twentieth Street South and Tenth Avenue South? A. 

There was a red light for me at the time I approached the 

intersection, and a car was stopped ahead of me so I 

stopped.. . . 

A. (Witness steps down from the witness stand and uses 

pointer for counsel.) I was stopped with the front of 

my car approximately back here because of the car ahead 

of me. Then when the light turned green, I proceeded out 

with my car where I was stopped in this area because the 

first car made a left turn and the car from the south- 

-the first car there turned also, and then the other cars 

that were coming from the south, they were coming 

straight through, approximately three cars. 

Q. Alright. Stop there. Did you then have to wait for 

those cars coming straight through before you completed 

your turn? A. Yes. I was stopped right in here 

approximately waiting for those other cars to go straight 

through so that I could eventually make a left turn. 

Q. Alright. Then three cars cleared and then what did 

you do? A. I was going to make a left hand turn but 

then that's when I was hit broadside from Mr. Stone. 

Q. From what direction were you hit? A. He was coming 

from the east. He was in this lane. 

At the time of this incident, Tenth Avenue South was laned for 

two lines of traffic in each direction. Defendant, Kevin Stone, 

was driving a GMC four-wheel pickup west on Tenth Avenue South on 

the inside lane of traffic. He drove into the intersection, and 

struck the stopped Vender vehicle on the driver's side. Here is 

his testimony respecting the accident: 

Q- You have heard Mr. Vender's testimony of what 

happened on April 18, 1984, and how the accident 

occurred. I would like you to tell the jury your 
version, if you would, please, of what happened. A. I 

was going down Tenth in the left lane west, and when 

approaching the intersection I didn't see the light and 

when I did look around, he was sitting in the middle of 

the intersection and I turned and tried and looked beside 

me to see if I could get over and it was kinda too late 

and I was skidding--and skidded out into the intersection 

and hit him in the left rear side. 

Q. Was there anything in your windshield or on your dash 

that obstructed your view of the road in front of you as 

you were going west in the left lane? A. No. 

Q. Was there traffic in your lane of travel? A. No. 

Q. Between you and the intersection? A. No. 

Q. You had a clear view of the intersection; is that 

correct? A. Yes. 

Q. Now you told the jury you didn' t see the light but 

that you did skid so you must have seen the light at some 

point and put on your brakes, is that correct? A. No. 

I saw Mr. Vender. 

Q. You never did see the light? A. No. I was trying- 

-I was looking beside me and I was looking at him. I was 

going to try to miss him. I never did look at the light. 

Q. Did you see any other cars at the intersection or 

stopped at the intersection. A. On Tenth Avenue going 

west there was none . . . 

Q. Were there any cars any other place that you noticed? 

A. Only one I noticed was the green station wagon in the 

intersection and it was--when I looked and made sure 

there was nobody beside me that I could go around him, 

it was too late and that was the only one I saw in the 

intersection . . . 

Q. I take it from your testimony that you didn' t see the 

red light that was in your lane of traffic. A. I didn't 

see any light, no. 

Q. You didn't know if the light was green, yellow or 

red, is that true? A. True. 
Q. Well, clear that up for me then. A. I said I looked 

to the right with my foot on the brakes already. I was 

on the brakes as soon as I seen him. 

Q. Alright. A. And I looked to the right and looked 

back around at his car and it was just too late to move 

over. I had to hit him no matter what and if there had 

been somebody beside me, I would have hit them too. 

Q. Okay. You didn't have time to stop or to maneuver 

out so that you wouldn't hit him? A. There was no time 

to stop. There was no time to stop. 

Over Vender's objections, the District Court by its 

instructions, submitted to the jury the issue of the comparative 

negligence of both Vender and Stone. As a result, the jury 

returned a special verdict and attributed 50% of the cause of the 

accident to the negligence of Stone and 50% attributable to Art 

Vender. 

There was other evidence in the case that the traffic light 

controlling the intersection, insofar as Twentieth Street was 

concerned, had sensors buried at the approaches to the intersection 

which triggered a change of light for traffic on Twentieth Street 

from red to green. The testimony indicated that regardless of the 

number of vehicles that may have come to a stop waiting on 

Twentieth Street to cross the intersection, the maximum green time 

for that crossing would be 27 seconds plus 3 seconds for the amber 

light. 

There is no direct evidence in the record as to whether the 

traffic light facing Stone was red or green when he entered the 

intersection. The effect of Vender's testimony is that he entered 

the intersection on Twentieth Street on a favorable green light and 

that he did not see if the light changed before the moment of 
collision. Stone argues that Vender's light must have changed from 

green to amber to red before the collision, based on the testimony 

that the traffic light facing Vender would be green for no longer 

than 27 seconds, with an amber light of 3 seconds. Vender's 

argument assumes without other evidence that the number of vehicles 

on Twentieth Street could not cross the intersection in that period 

of time. 

It is our view of the law, however, when applied to the facts 

of this case, that Vender was lawfully in the intersection, and 

that Stone, even if the traffic light had turned green in his favor 

at the time he entered the intersection, had a duty to keep a 

lookout so as to see and observe the traffic lights and the stopped 

car of Vender in the intersection, and to control his speed in such 

manner as to be able to avoid colliding with the Vender vehicle. 

On that basis, as a matter of law, Stone was solely responsible for 

the accident. An examination of the statutes, and the law 

applicable thereto will explain why. 

The key statute to be looked at is 5 61-8-207, MCA. It 

provides : 

61-8-207. Traffic-control sisnal lesend. Whenever 

traffic is controlled by traffic-control signals . . . the following colors . . . shall indicate and apply to 

drivers of vehicles and pedestrians as follows: 

(1) Green alone or "Gow: 

(a) Vehicular traffic facing the signal may proceed 

straight through or turn left or right unless a sign at 

such place prohibits either such turn. But vehicular 

traffic, includins vehicles turnins risht or left, shall 

yield the risht-of-way to other vehicles . . . lawfully 

within the intersection . . . at the time such signal is 

exhibited. (Emphasis added.) 
Applying the foregoing statute to the facts of this case, Art 

Vender, traveling south on Twentieth Street, entered the 

intersection when the light turned green, relying on the statute 

that he could proceed straight through or turn left. He was 

required to yield the right-of-way to other vehicles lawfully 

within the intersection. 

Stone, on the other hand, if the light had turned green when 

he had entered the intersection, was obliged to yield the riqhtof-way nevertheless to all other vehicles lawfully within the 

intersection. 

A further statute required Vender, intending to make a left 

turn within the intersection, to yield the right-of-way to vehicles 

coming from the opposite direction. Section 61-8-340, MCA, 

provides : 

61-8-340. Vehicle turnins left at intersection. The 

driver of the vehicle within an intersection intending 

to turn to the left shall yield the riqht-of-way to any 

vehicle approachins from the opposite direction which is 

within the intersection or so close thereto as to 

constitute an immediate hazard, but said driver, having 

so yielded and having given a signal when and as required 

by this chapter, may make such left turn, and the drivers 

of all other vehicles approaching the intersection from 

said opposite direction shall yield the right-of-way to 

the vehicle making the left turn. (Emphasis added.) 

When Art Vender entered the intersection driving south, he was 

faced with at least four vehicles also entering the intersection 

from the opposite direction, three of which were proceeding 

straight north. Because Vender intended to turn to the left, it 

was his duty under 5 61-8-340, to yield the right-of-way to those 

vehicles in the intersection or approaching so closely so as to be 
an immediate hazard. All of this, under the facts of this case, 

Art Vender properly performed. 

Moreover, Art Vender had properly stopped his automobile in 

the intersection under the facts of this case. Section 61-8-354, 

MCA, provides: 

61-8-354. Stoppins, standinq or parkins prohibited in 

specified places-exceptions. (1) No person shall stop . . . a vehicle, except . . . (2) . . . when necessarv 

to avoid conflict with other traffic . . . (Emphasis 

added. ) 

Vender entered the intersection and intended to make a left - 

hand turn, which he had a right to do. He was prevented from 

proceeding immediately through his left-hand turn by the approach 

of vehicles coming in the opposite direction on Twentieth Street. 

It was I1necessary to avoid conflict with other traffic" that he 

stop in the intersection. He was, therefore, lawfully in the 

intersection when he was struck broadside by the oncoming vehicle 

driven by Kevin Stone. Vender testified that he did not see Stone 

before the collision or his vehicle, but Vender's right to stop in 

the intersection in the circumstances is undoubted under the law. 

The driver of an automobile which enters an intersection 

on the green light ordinarily is entitled to continue 

until he clears the intersection, even though the green 

changes to amber and the amber to red before he completes 

the crossing, while traffic awaiting on intersecting 

streets the change of lights must ascertain whether the 

intersection is clear before starting to cross. 

Blashfield, Automobile Law and Practice, Vol. 3, p. 96, 5 114.42 

Even if Stone had a green light in his favor as he entered the 

intersection, he was still required under 5 61-8-207, MCA, to yield 
the right-of-way to other vehicles lawfully within the 

intersection. As the Washington Court said in Lanegan v. Crauford 

(Wash. 1956), 304 P.2d 953, 955: 

A green light is not a command to go, but only a limited 

permission to pass, having due regard for those already 

lawfully in the intersection. (Citing cases.) 

Vehicles rightfully in a light-controlled intersection 

have a reasonable opportunity to clear the intersection. 

(Citing cases. ) 

Such is the imperative command of the statute, Laws of 

1951, Ch. 56, 5 3, p. 165, R.C.W. 46.60.230: 

. . . But vehicular traffic, including 

vehicles turning right or left, shall yield 

the right of way to other vehicles and to 

pedestrians lawfully in the intersection or an 

adjacent crosswalk at the time such signal is 

exhibited . . . 

Stone's duty to keep a lookout as he approached the 

intersection and entered it is well settled in Montana law. His 

duty to keep a lookout implied his duty to see what was in plain 

view, and what should be seen in the exercise of reasonable care. 

Johnson v. Herring (1931), 89 Mont. 156, 295 P. 1100. A driver 

must look not only straight ahead but laterally ahead, Autio v. 

Miller (1932), 92 Mont. 150, 11 P.2d 1039. A person is presumed 

to see, and therefore to know, that which he could see by keeping 

a lookout. McNair v. Berger (1932), 92 Mont. 441, 15 P.2d 834; 

Marinkovich v. Tierney (1932), 93 Mont. 72, 17 P.2d 93. 

The failure of a motorist approaching a controlled 

intersection to see what was plainly visible or obviously apparent 

makes him chargeable for failure to see what he should have seen 
had he been in the exercise of reasonable care. Drury v. Palmer 

(Idaho 1962), 375 P.2d 125; Hughes v. Hooper (Utah 1967), 431 P.2d 

It is not to be doubted that the primary duty of lookout 

a light-controlled intersection rests upon the disfavored driver, 

but this does not excuse the favored driver from his duty of 

reasonable care in approaching and entering the intersection, 

including the duty owing here to other traffic. In this case, 

Stone contends that Vender failed to keep a lookout because he 

didn't see Stone before the collision. Granting this, Vender's 

lack of lookout was not a proximate cause of the accident because 

up to and at the moment of collision, his vehicle was in a helpless 

position as far as approaching traffic from Stone's direction is 

concerned. 

The evidence is clear that Stone not only failed to keep a 

lookout, but failed to obey the basic speed rule contained in Cj 61- 

8-303, MCA. That rule is stated as follows: 

61-8-303. Speed restrictions--basic rule. (1) A person 

operating or driving a vehicle . . . on a public highway 

of this state shall drive it in a careful and prudent 

manner, and at a rate of speed no greater than is 

reasonable and proper under the conditions existing at 

the point of operation,. . . and he shall drive it so as 

not to unduly or unreasonably endanger the life, limb, 

property, or other rights of a person entitled to the use 

of the street or highway. 

(5) The driver of a vehicle shall, consistent with 

subsection (I), drive at an appropriate reduced speed 

when approaching and crossing an intersection . . . and 

when a special hazard exists with respect to pedestrians 
or other traffic or by reason of weather or highway 

conditions. 

The foregoing applicable statutes cannot be construed in any 

other way but that Vender was lawfully in the intersection at the 

time that his vehicle was struck by the Kevin Stone vehicle, and 

that Kevin Stone alone was driving negligently, if not 

recklesslessly, to cause the collision. 

Only in exceptional circumstances will a favored driver be in 

fault for a collision in a light-controlled intersection, when the 

favored driver could have avoided the accident by exercising the 

slightest observation and care. Smith v. Regional Transit 

Authority (La. App. 4, 1990), 559 So.2d 995. When, as here, the 

facts are undisputed and susceptible of only one inference, 

questions of fact become a matter of law. We determine that Kevin 

Stone was solely responsible for the collision which occurred in 

this case. 

It is necessary, therefore, for us to reverse the judgment of 

the District Court and remand this cause for a new trial on the 

issue of damages, the liability having been determined as a matter 

of law. 

The second issue raised by the appellants relates to the 

denial of evidence by the District Court in the first trial on 

damages issues. The question of admissible testimony arose in the 

first trial because of discovery complications upon which the 

District Court ruled to eliminate the evidence. Since we are 

remanding this cause for a new trial, we assume that proper 

discovery will be made before the next trial and we have no need, 
therefore, to determine the damages questions raised by the second 

issue of the appellants. 

Cause remanded for new trial in the District Court on the 

issue of damages only. 

We Concur: ,/ 

4, Tk 

dhief Justice 

i 

Justice 

Justices 
Justice Diane G. Barz dissenting. 

I dissent. 

A jury found that Art Vender was fifty percent negligent. On 

appeal we are limited to a determination of whether the verdict is 

supported by substantial credible evidence. A great deal of 

evidence indicated that while Vender entered the intersection with 

a green light, the light may have changed while Vender was stopped 

in the intersection waiting for four or five northbound cars to go 

by before he could attempt a left turn. 

The jury was not compelled to believe 

plaintiff Is testimony. The jury viewed the 

evidence, heard and viewed the witnesses, and 

entered its verdict. To permit the undoing of 

this verdict by affirming the trial court 

decision granting a new trial, would, in the 

language of Nelson v. Hartman (1982), [I991 

Mont. [295], 648 P.2d 1176, 1179, 39 St.Rep. 

1409, 1412, ll. . . create a bench supremacy 

and sap the vitality of jury verdicts." 

(Emphasis added.) 

Maykuth v. Eaton (1984), 212 Mont. 370, 372-73, 687 P.2d 726, 727. 

The jury in the instant case obviously had trouble believing 

Vender's testimony on liability and damages. The jury verdict 

should be affirmed. /- 'Id /& -JJJustice 

Justice Fred J. Weber and Justice R.C. McDonough join in the 

foregoing dissent of Justice Diane G. Barz.