No. 12243 

### IM THE SUPREME COURT OF THE STATE OF MONTAEA 1972

MARILYN J. DP,WE, Plaintiff and Appellant,

R. REX DALLEY, and theMONTANA HIGH SCHOOL ASSOCIATION, a corporation, Defendants and Respondents.

Appeal from: District Court of theFirstJudicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Hughes, Bennett and Alan F. Cain, Helena, Montana. George T. Bennett argued, l?elena,Montana. Kli-neand Niklas, Helena, Montana. John R. Kline argued, Helena, Montana. For Respondents: Gough, Booth, Shanahan and Johnson, Helena, Montana. Ward A. Shanahan and Ronald F. Waterman argued,

Helena, Montana.

Submitted: October 26, 1972 Deci-ded: 

### DEC

### 2

### 61%Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is an appeal by the plaintiff, Marilyn J. Dawe, from an adverse jury verdict rendered in the district court of Lewis and Clark County. The basis of Mrs. Dawe's claim for relief was an automobile accident,which occurred on February 27, 1970. The location of the accidentwas on the south or descending side of Boulder Hill on Highway 91 in JeffersonCounty. Both parties

were traveling to Butte,Montana on the day of the accident and the road was icy and snowpacked. The Dalleyvehicle first came upon the Dawe vehicle on the north or ascending side of the hill. Following the Dawe vehicle for approximately three-fourths of a mile Dalley was able to see that Mr. Dawewas having difficulty negotiating the hill. The car would slow down, then speed up again and was fishtailing. Dalley passed the Dawe vehicle but he had to stop at the top of the hill to clear a windshield wiper. At this point the Dawe vehicle passed the Dalley vehicle and both proceeded down the hill. Dalleywas again able to determine that Dawe was having trouble controllinghis car. Both drivers testified that they were traveling no faster than 15miles per hour with Dalley testifying thathe was trying to keepbetween 50 to 75 feet behind the Dawe vehicle. Upon reaching a sharp righthand curve the Dawe vehicle went out of controlwith the frontwheels colliding with the snowbank on the right side of the road first and the rear end of the car sliding around to hit the bank. At this point Dalley first tried to turn to the left to go around the car but was unable to do so because of oncoming traffic. Dalley then applied the brakes and slid into the Dawevehicle. It is this impact thatMrs. Dawe contends caused her injuries. The physical damage to each car was slightas they were both able to leave the scene of the accidentunder their own power. There are three issues in this case for our consideration. The first is whether itwas proper for the trial court to instruct the jury on "suddenemergency". In considering this issuewe must determine if this was

a proper case for the use of the Usuddenemergency" instruction. InstructionNo. 17 givenby the trial courtwas as follows: "A sudden emergency exists when the driver of amotor vehicle is suddenlyplaced in a position of imminent peril, greatmental stress, or danger,which situation has not been brought about by his own negligence,but inwhich instant action is necessary to avoid a threatened danger. But the driver must use that care which the ordinary prudent person would exercise under like or similar circumstances. One suddenly confronted with a peril through no fault of his own, who in attempting to escape does not choose the best or safestway should not be held negligent because of such choice,unless itwas so hazardous that an ordinary prudent person would not have made (it) under similar circumstances." On reviewing such an instructionwe must determinewhether it was error in light of the evidence contained in the record which supports the instruction. "The instructionmust be taken in connectionwith the evidence bearing on thematter referred to

## * * *." Burns v. United States, 274 U.S. 328, 331, 71L.Ed 1077, 47 S.Ct. 650. The other requirement is that a party is entitled to an instruction on its theory of the case and in Gran v. Dasovic, 275 Minn. 415, 147N.W.2d 576, 579, it is stated: "We are also of the opinion that the courtdid not err in instructing the jurywith reference to the emergency doctrine. An instructionon this theory should also be givenwhere it is consistent with the theory of one of the parties to the action and where the evidence submitted by suchparty would sustaina finding that he had been confrontedwith a suddenperil or emergency and acted under its stress.

### " The record in this case amply supports the instructionon both grounds. Dalleywas following a car at a safedistance for thespeed his car was traveling. The Dawevehicle suddenlywent out of control causing Dalley to take emergency action. Also the record clearly shows thiswas the theory of the defense in the trial. Following our ownMontana rule as stated in Peabodyv. Northern Pacific Ry. Co., 80Mont. 492, 498, 261 P. 261,on the giving of the sudden emergency instruction, it should have been given ; "If the evidence in this case were sufficient towarrant a reasonable conclusion that at the time in question the defendant Siege1was confronted with a 'sudden emergency,' or that 'there was want of time inwhich to form a judgment,' under the circumstances,as they appeared to him, the court should have given the offered instruction." Emphasis supplied. The second issue iswhether the court should have allowed a pharmacist to testify regarding the effects of taking a pain killing drug by the plaintiff. During the trial of the cause the defenseused the testimony of 

### a localpharmacist. Thepurpose of the testimonywas to have an expert opinion on the dffect to a person of taking a particular pain killingdrug. This expert testimonywas objected to by Mrs. Dawe's attorney on the ground that a pharmacist

was not a qualified expert to give such an opinion. Itappeared thatMrs. Dawe suffered fromback pain prior to the accident and she testified that she occasionally took Darvon 65 to relievepain prior to February 27, 1970. It further appeared thatMrs. Dawe received a prescription on January 12, 1970 for 100 capsules of Darvon 65 and these had been mostly used up so on the day of the accident the prescription had been refilled. Medical testimony indicated Darvon 65was a pain killer with greater strength than aspirin but less than codine. The pharmacist called by the defense testified as to his general background which includedworking for Eli Lilly andCompany, the manufacturers of Darvon 65,and he was asked about the normal dosage of the drug and testified that the average dosage was one capsule three or four times daily, which would be every six to eight hours. Mrs. Dawe's prescription was for Darvon once every three hours, or twice the average dosage. Plaintiff claims that as a result of this testimony concerning the effects of taking an overdose of the pain killing drug prescribed for her prior to the time of the accident the defensewas allowed to argue to the jury that Mrs. Dawe's injuries were the result of that overdose. However, in our reading of the transcript, it becomes apparent the damaging testimony

was brought out by plaintiff on cross-examination. She cannot

now come in and complain of this when the adverse result was of her ownmaking. In a Montana case,Hogan v. Shuart, 11Mont. 498, 504, 28 P. 969,where the party insisted the witness answer the question and then claimed error because he did so, this Court held: "Weare unable to see any reason for complaint upon thepart of the appellants,because they insisted upon their right to have the question propounded, and the answer is responsive to the same.

### " We find no error here. The last issue concerns the allegedmisconduct of defendants' counsel. During the course of the trial the plaintiff wished to

use the deposition of Dr. Swenson of Salt Lake City,Utah. Shanahan, counsel for Dalley,noted that there existed "no reason

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## * rightnow for offering it except as a grandstand." Further during cross-examination of plaintiff's expert witness by Shanahan it was brought out that the witness and plaintiff's counselhad worked together on the sales tax proposal. Both ofthese instances are charged by plaintiff as being misconduct

on the part of defendants' attorney. We do not agree with the contention that the actions of defendants' counsel at the time of offering of the deposition

or in the cross-examinationofplaintiff's witness are of a character to constitute miscon requiring a new The judgment is affirme