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 

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,, w; v1 - 73w 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- -- ( 4

COUNSEL OF RECORD: ForAppellant: 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, 1990Justice 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 thatArt Venderwasdamaged in theamount of $3,313.90,MaryVender incurred

no damages,andArt Vender and Kevin Stone were each 50%negligent. TheVenders filed amotion for new trial. When the District Court did not rule on themotion within theprescribed time, theVenders 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 comparativenegligence? 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? Thecollisionoccurredat the intersectionof TwentiethStreet and TenthAvenue South in Great Falls, Montana, onApril 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 ofhimwas stopped waiting for the light to change. When the light changed, Vender pulled into the intersection, following the carahead 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 didyou seewhenyouapproachedthe intersection of Twentieth Street South and Tenth Avenue South? A. Therewas a red light forme at the time 

### Iapproached the intersection, and 

### a car was stopped ahead of me so I stopped.. 

# . . A. (Witness stepsdown 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 ofme. Then when the light turnedgreen, Iproceeded out with my car where 

### Iwas stopped in this area because the first car made a left turn and the car from the south- -the firstcar 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 towait for those cars coming straight through before you completed your turn? A. Yes. 

### I was stopped right in here approximately waiting for those other carstogo 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 Iwas hit broadside from Mr. Stone. Q. Fromwhat direction were you hit? A. He was coming from the east. He was in this lane. At the time of this incident, Tenth Avenue Southwas laned for two lines of traffic in each direction. Defendant, Kevin Stone,

was driving a GMC four-wheelpickup 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 yourversion, 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 

### Idid look around,he was sitting in themiddle of the intersectionand 

### Iturnedand triedand lookedbeside me to see if 

### I could get over and it was kinda too late and 

### Iwas skidding--and skidded out into the intersection and hit him in the left rear side.

Q. Was there anything inyourwindshield or on yourdash that obstructedyourview 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 thatyoudid skid soyoumust have seenthe 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. Iwas trying- -I was looking besideme and Iwas looking at him. Iwas going to try tomiss him. 

### Inever 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 thereany carsany other place thatyounoticed? A. Only one 

### Inoticedwas thegreen stationwagon 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. 

### Itake it fromyour testimony thatyoudidn't see the red light thatwas inyour lane of traffic. A. Ididn'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 forme then. A. Isaid 

### I looked to the rightwith my foot on the brakes already. 

### Iwas 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. 

### Ihad to hit him no matter what and if there had been somebody beside me, Iwould have hit them too. Q. Okay. You didn't have time to stop or to maneuver out so that youwouldn't hit him? A. Therewas 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 sensorsburied at theapproachesto 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, themaximum green time for that crossingwould 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 ofVender's testimony is that he entered the intersectiononTwentieth Streeton a favorablegreen lightand that he did not see if the light changed before the moment ofcollision. Stone argues thatVender'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 evidencethat thenumber of vehicles

onTwentieth Streetcould not crossthe intersection in thatperiod of time. It is ourview 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 lighthad turned green inhis favor at the time he entered the intersection, had a duty to keep a lookout soas to seeand observe the traffic lightsand the stopped

car ofVender in the intersection,and to controlhis speed in such

manner as to be able to avoid colliding with the Vender vehicle. On thatbasis,as amatter of law,Stonewas solelyresponsible 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. (Emphasisadded.)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 turnwithin the intersection,toyield theright-of-waytovehicles 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 soyieldedandhaving given a signal when and as required by this chapter,maymake such left turn,and thedrivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn. (Emphasisadded.) When ArtVender entered the intersection driving south,hewas 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 bean 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 intersectionand intended tomake 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 I1necessaryto 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 drivenby 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. Thedriver 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 toamberand theamber toredbeforehe completes the crossing, while traffic awaiting on intersecting streets the change of lights must ascertainwhether the intersection is clear before starting to cross. Blashfield,Automobile Law and Practice,Vol. 3,

### p. 96, 5 114.42

Even if Stonehad a green light inhis favorashe entered the intersection, hewas still requiredunder 5 61-8-207,MCA, toyieldthe right-of-way to other vehicles lawfully within the intersection. As theWashington Court said in Laneganv. 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.

(Citingcases.) 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 intersectionor an adjacent crosswalk at the time such signal is exhibited 

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# . .

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 seewhat wasplainly visible or obviously apparent makes him chargeable for failure to see what he should have seenhad he been in the exercise of reasonable care. Drury v. Palmer (Idaho 1962), 375 P.2d 125;Hughesv. 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 lookoutwas not a proximate cause of the accident because up to and at themoment of collision, his vehiclewas 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 thebasic speed rule contained in Cj 61- 8-303,MCA. That rule is stated as follows: 61-8-303. Speed restrictions--basicrule. (1) Aperson 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 thepoint of operation,. 

# . . and he shall drive it so as not to unduly or unreasonably endanger the life, limb, property,or otherrights of aperson entitled to theuse 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 specialhazard exists with respect to pedestriansor 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 isnecessary, therefore, forus 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 amatter 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 thedamages 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: 

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# 4, Tk
dhief Justice i Justice

JusticesJustice Diane G. Barz dissenting. I dissent. A jury found thatArt Vender was fifty percent negligent. On appealwe are limited to a determination of whether theverdict is supported by substantial credible evidence. A great deal of evidence indicated thatwhileVender entered the intersectionwith a green light, the lightmay have changedwhileVender was stopped in the intersection waiting for four or fivenorthbound cars to go by before he could attempt a left turn. The jury was not compelled to believe plaintiffIs testimony. The jury viewed the evidence,heard and viewed the witnesses, and entered itsverdict. Topermit theundoing 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."

(Emphasisadded.) 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. /- 

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# -JJJustice

Justice Fred J. Weber and Justice R.C. McDonough join in the foregoing dissent of Justice Diane G. Barz.