No. 13572 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JOSEPHINE KUDRNA et al., 

Plaintiffs and Appellants, 

COMET CORPORATION et al., 

Defendants and Respondents. 

Appeal from: District Court of the Seventh Judicial District, 

Honorable L. C. Gulbrandson, Judge presiding. 

Counsel of Record: 

For Appellants: 

Gene Huntley argued, Baker, Montana 

Maurice R. Hunke, Dickinson, North Dakota 

For Respondents: 

Crowley, Haughey, Hanson, Gallagher & Toole, 

Billings, Montana 

Bruce Toole argued, Billings, Montana 

Anderson, Symmes, Forbes, Peete & Brown, Billings, 

Montana 

Weymouth Symmes argued, Billings, Montana 

Submitted: June 9, 1977 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

 his is an appeal from a judgment in favor of defendants 

in a survivorship and wrongful death action entered on a jury verdict 

in the ~istrict Court, Dawson County. Plaintiff further appeals 

from an order denying plaintiff's motion for a directed verdict, 

and from an order denying motion for judgment notwithstanding the 

verdict or in the alternative a new trial. 

Gilbert J. Kudrna was killed while riding as a rear seat passenger in a 1975 Dodge van owned by the McQuade Distributing Co., 

Inc., of Bismarck, North Dakota, and driven at the time of the collision by Gerard McQuade. McQuade was also killed. Two other passengers riding in the McQuade van were not injured. The collision 

was with a semi-truck and trailer leased by the Comet Corp. Gilbert 

Kudrna's widow, Josephine Kudrna, brought a survivorship action on 

behalf of her husband's estate and a wrongful death action on behalf 

of herself and four children. 

The events leading to the collision were: 

On February 7, 1975, Interstate 90 was closed between Laurel, 

Montana on the east and Livingston, Montana on the west because of 

winter storm conditions. 

On the following morning the highway was reopened for traffic 

in both directions. It was clear and sunny but very cold; the temperature was approximately five degrees below zero Fahrenheit. The 

surface of the highway in the general area where the collision occurred was snow packed and slippery; the pavement was covered and 

the center line obscured. The area where the collision occurred is 

approximately 6.5 miles west of Big Timber, Montana, on U.S. Highway 

10, which is, at this location, a two lane undivided asphalt paved 

highway that is a interconnecting portion of Interstate 90. 

At about 9 o'clock a.m. a semi-truck leased and operated by 
the defendant Mid-West Coast Company, driven by defendant James 

Kennely with defendant Richard Hendrick as codriver, left Livingston, 

Montana proceeding in an easterly direction on Interstate 90. It 

was followed a short time later by a semi-truck leased and operated 

by the defendant Comet Corp., driven by defendant Robert D. Hamblen, 

also traveling east on Interstate 90. 

Approximately 6.5 miles west of Big Timber, the first truck 

(Mid-West Coast) slowed to a stop in its eastbound lane of traffic. 

Its brakes had "frozen" and its driver was unable to release them. 

Because of snow kicked up at the rear of the vehicle as it traveled 

down the highway, the rear brake and clearance lights of the Mid-West 

Coast truck were completely covered by the time the truck began to 

slow. 

As the second truck (Comet) approached, at a speed of between 

40 and 50 miles per hour, its driver could see the Mid-West Coast 

truck from a distance of approximately 1700 feet. At some point 

between 100 and 500 feet behind Mid-West Coast's truck, the Comet 

driver realized Mid-West was not moving and that his truck could not 

be stopped in the distance separating them. Deciding to pass, 

rather than either going into the ditch or running into the rear of 

Mid-West Coast's trailer, Comet's driver turned into the westbound 

lane as he pulled out to get around the stationary vehicle. As he 

began his passing maneuver, Comet's driver looked up the westbound 

lane for oncoming traffic and saw the McQuade van approaching at a 

distance he estimated to be three quarters of a mile. 

Comet's semi-truck passed the Mid-West Coast truck and was 

completing the motion of returning to its proper lane, when the left 

front side of the McQuade van collided with the left side of comet's 

trailer at its rearmost axle, near the back end of the trailer. 

The exact point of impact on the highway could not be determined because of the snow cover on the surface of the road, but the 
highway patrol investigation found the impact to be "near" the 

center line of the highway. 

The driver of the McQuade van and Gilbert Mudrna were killed 

as a result of the collision. Two other van passengers were not 

injured. Neither the driver nor the codriver of the Comet semitruck was hurt. The trailer was damaged, its rear axle assembly 

torn loose by the impact of the collision. 

On July 8, 1975, the estate, widow and children of Gilbert 

J. Kudrna brought suit against Comet Corp. and its driver; Mid-West 

Coast Company and its two drivers; and McQuade Distributing Co., 

Inc., alleging that the death of Kudrna had been proximately caused 

by the negligence of the defendants. 

Trial of the cause began on the June 7, 1976. Plaintiffs 

and defendant McQuade Distributing Co., Inc., settled upon a covenant 

not to sue and the action against McQuade was ordered dismissed on 

June 8, 1976. On June 11, the jury found in favor of defendants. 

Judgment was entered on the verdict. Following the District Court's 

denial of plaintiffs' motion for judgment notwithstanding the verdict or alternatively, for a new trial, plaintiffs appealed. 

The issues raised for review are: 

(1) Whether the District Court's grant to defendants Comet 

Corp. and Mid-West Coast Company of a total of eight peremptory 

challenges constitutes reversible error? Defendants contend they 

had interests and defenses antagonistic in fact and thus were entitled 

to four peremptory challenges each. 

(2) Whether the District Court's refusal to admit an allegedly 

res gestae statement offered by plaintiffs is reversible error? 

(3) Whether the District Court should have directed a verdict 

of liability against Comet Corp., or should have granted plaintiffs' 

motion for judgment notwithstanding the verdict or for a new trial? 

Comet Corp. contends the issues of sudden emergency and proximate 
cause entitled the case to go to the jury. 

(4) Whether the District Court should have directed a verdict 

against Mid-West Coast Company or should have granted plaintiffs' 

motion for judgment notwithstanding the verdict or for a new trial 

as against Mid-West Coast? Mid-West Coast contends that, even assuming negligence for statutory safety regulations, the issue of 

proximate cause was a jury question. 

Issue (1). Montana's jury challenge statute, section 93-5010, 

R.c.M. 1947, provides in part: 

" * * * Challenges to individual jurors are for 

cause or peremptory. Each party is entitled to 

four peremptory challenges * * *." 

Plaintiffs rely on Mullery v. Great Northern Ry. Co., 50 

Mont. 408, 148 P. 323 (1915), and cases following Mullery, where 

this Court allowed a total of four peremptory jury challenges to 

multiple defendants. Plaintiffs contend both defendants in the present action together constitute a "party" and should have been allowed 

no more than four peremptory challenges between them. 

In a recent decision, Leary v. Kelly Pipe Co., 169 Mont. 511, 

549 P.2d 813, 816, 33 St.Rep. 413, 416 (1976), this Court stated: 

" * * * Mullery stands for the proposition that 

under our jury challenge statute * * * the words 

'each party' in reference to the permitted four 

peremptory challenges means 'each side' unless 

the positions of the codefendants are hostile to 

each other. The opinion suggests that hostility 

between nominal defendants may be shown 'by pleading, representation, or evidence.'" 

Leary expressly overruled an earlier decision, Ferron v. 

Intermountain Trans. Co., 115 Mont. 388, 143 P.2d 893 (1943), to the 

extent that Ferron may be interpreted as requiring a collective total 

of four peremptory challenges irrespective of the number making up 

either parties plaintiff or parties defendant. 

In Annotation - Jury: NUMBER OF PEREMPTORY CHALLENGES ALLOWABLE IN CIVIL CASE WHERE THERE ARE MORE THAN TWO PARTIES INVOLVED, 

32 ALR3d 747, 761, it is stated: 
"In the absence of a statutory provision expressly 

requiring parties to join in peremptory challenges, 

it has been held or recognized that where it is 

determined that the interests of multiple parties 

are diverse, or their respective defenses are different or hostile, each of the multiple parties 

is entitled to the full number of peremptory challenges allowed by law to a 'party'." 

From the earliest stages of this action, Comet Corp. and 

Mid-West Coast Company shared neither an identity of interest nor a 

common defense. Each was charged with a separate act of negligence 

alleged to have proximately caused the collision, and each presented 

a separate defense. In their respective answers, and in the pretrial 

order, Comet and Mid-West each maintained the other's negligence 

caused the collision. During trial, each defendant's case tended to 

place responsibility on the other. 

These defendants had interests and defenses antagonistic in 

fact. The District Court recognized this hostility and properly 

allowed each defendant four peremptory challenges. 

Issue (2). This issue questions the exclusion of a statement 

made between two and ten minutes before the collision by Hector 

Rogers, who was eastbound on Interstate 90 when he was passed by 

Comet's semi-truck. Immediately after he was passed, Rogers exclaimed 

to passengers in his vehicle, with respect to the Comet vehicle, 

"you wait and see; just a few miles down the road he'll either be 

in the ditch or have killed someone." This statement was ruled 

inadmissible by the District Court. Plaintiffs contend it tends 

to show that Comet's truck was traveling too fast at the time of the 

collision, and it should have been admitted as within the res gestae 

exception to otherwise objectionable testimony. 

Section 93-401-7, R.C.M. 1947, states: 

"Where, also, the declaration, act, or ommission 

forms part of a transaction, which is itself the 

fact in dispute, or evidence of that fact, such 

declaration, act, or ommission is evidence, as 

part of that transaction." 
This Court has held on several occasions that statements 

made from one to ten minutes after an accident may be admissible 

as part of the res gestae. In Blevins v. Weaver Const. Co., 150 

Mont. 158, 164, 432 P.2d 378 (1967), this Court stated: 

" * * * Declarations relative to a transaction * * * 

must be deemed competent when they are so connected 

with the main transaction as to form a part of it. 

Callahan v. Chicago, etc., R. Co., 47 Mont. 401, 133 

P. 687 [1913]; * * * Tanner v. Smith, 97 Mont. 229, 

33 P.2d 547 [1934]". 

Plaintiffs and Comet Corp. are in conflict with respect to 

whether Rogers' statement is sufficiently "connected with" the transaction involved in the present action to be within the res gestae 

exception. The District Court granted a motion in limine to prevent 

any reference to the statement during the trial. 

In Sullivan v. Metropolitan Life Ins. Co., 96 Mont. 254, 267, 

29 P.2d 1046 (1934), this Court stated: 

" * * * Whenever a question of fact arises upon 

conflicting evidence as to whether declarations 

are a part of the res gestae or depends upon contradictory inferences, either of which may fairly 

be drawn from such evidence, the solution of the 

question of admissibility of the evidence must 

in every case be left largely to the sound legal 

discretion of the trial court, subject to review 

only in the case of manifest abuse." 

While the collision occurred on a two lane portion of highway, 

the Rogers vehicle was passed by the Comet truck as the two vehicles 

were traveling on four lane Interstate 90. Rogers testified the 

statement was made at a point two miles from the scene of the collision. However, testimony of the investigating highway patrolman, 

indicated the collision occurred at least 6.5 miles east of the 

termination of the four lane portion of highway. Rogers would have 

been passed at least that far from the scene of the collision between 

the McQuade van and the Comet truck, on a portion of highway where 

driving conditions were different from those prevailing in the area 

of the collision. We cannot say the discretion of the District Court 

was abused; the testimony was properly excluded. 
Issue (3). Plaintiffs question whether the evidence shows 

Comet Corp. and its driver Robert D. Hamblen liable as a matter 

of law. Plaintiffs contend Gilbert Kudrna's injuries and death 

were proximately caused by these defendants' failure to observe 

highway traffic regulations, and therefore, the District Court 

should have directed verdicts of liability against them. 

Plaintiffs rely on a series of decisions where this Court 

held the following driver inrear.endcollision cases negligent as 

a matter of law for following too closely, in violation of section 

32-2160(a), R.C.M. 1947, which provides: 

"(a) The driver of a motor vehicle shall not follow 

another vehicle more closely than is reasonable 

and prudent, having due regard for the speed of 

such vehicles and the traffic upon and the condition of the highway. " 

Plaintiffs contend Comet Corp. would have been negligent 

per se had it collided with the Mid-West Coast truck, and argue that 

Comet should not escape responsibility for violating the duty imposed by this statute merely because it moved over into the oncoming 

lane rather than striking the Mid-West Coast truck. 

Plaintiffs also contend that when the Comet truck driver 

pulled over into the opposing lane of traffic without looking for 

oncoming traffic and assuring himself he could pass in safety, he 

violated section 32-2155, R.C.M. 1947. Comet Corp. contends any 

statutory violations were excused by a sudden emergency created by 

the immobilized Mid-West Coast truck, and, in any event, the proximate cause of Kudrna's death was not due to the negligence of the 

driver of the Comet truck. Comet contends the sole proximate cause 

of Kudrna's death was the negligence of the immobilized Mid-West 

Coast truck. 

Cases cited by plaintiffs involve various situations where 

liability was ultimately imposed as a matter of law or where statutory 

violations amounted to contributory negligence as a matter of law. 
However, none involve a consideration of the sudden emergency rule 

asserted in behalf of defendant Comet. 

In Custer Broadcasting Corp. v. Brewer, 163 Mont. 519, 522, 

515 P.2d 257 (1974), this Court held a driver who collided with the 

vehicle ahead negligent as a matter of law for following too closely. 

The defendant testified that as he was driving on the highway between 

Miles City and Billings, Montana, snow kicked up by other vehicles 

obscured his vision and he did not see plaintiffs' vehicle until the 

impact. There, as in the present case, the jury returned a verdict 

for the defendant. This Court reversed, and held that a directed 

verdict should have been granted in favor of the plaintiffs. 

This Court in Farris and Seneca1 v. Clark, 158 Mont. 33, 37, 

487 P.2d 1307 (1971) held the District Court properly granted the 

plaintiffs' motion for summary judgment on the issue of liability 

against the defendant, who collided with a vehicle he was attempting 

to pass. Defendant was held liable as a matter of law for following 

too closely. 

In Rader v. Nicholls, 140 Mont. 459, 462, 373 P.2d 312 (1962), 

this Court affirmed the District Court's grant of the defendants' 

motion for nonsuit, holding that plaintiff's conduct in pulling out 

to pass another vehicle within 100 feet of an intersection established 

contributory negligence as a matter of law. The controlling statute, 

section 32-2156, R.C.M. 1947, prohibits driving on the left side of 

the highway when approaching within 100 feet of an intersection. 

There, we stated: 

" * * * we have long been committed to the doctrine that the violation of a statute enacted 

for the safety of the public is negligence per - 

7 

se * * *." 140 Mont. 462. 

In Hurly v. Star Transfer Co., 141 Mont. 176, 182, 376 P.2d 

504 (1962), the driver of a semi-truck backed his rig onto the highway so that a portion of the trailer extended into the oncoming lane 

where it was struck by a vehicle driven by plaintiff's decedent. 
The trial court granted a directed verdict on liability for defendant's failure to keep its vehicle in its proper lane. This Court 

affirmed stating: 

"Since * * * defendant's driver was negligent as 

a matter of law, the case, as to those questions, 

presented only a question of law. When a case 

presents only a question of law a directed verdict 

is proper. Section 93-5205, R.C.M. 1947; Richardson 

v. Crone, 127 Mont. 200, 258 P.2d 970." 141 Mont. 

182, 183. 

While Comet Corp. does not argue with these cited cases, it 

contends they do not apply here because Comet truck driver's conduct 

was justified by a sudden emergency and, in any event, the jury was 

entitled to find that any statutory violations were not the proximate 

cause of Kudrna's death. To constitute negligence per se, a statutory violation must also be the proximate cause of the injuries 

sustained. However, we do not agree that the driver's conduct was 

justified by a sudden emergency. 

The evidence in this case shows that Comet's driver noticed 

the Mid-West Coast truck ahead of him near the the collision scene, 

from a distance of approximately 1700 feet. It was not until Comet 

was within four to five hundred feet of the Mid-West Coast truck, 

and closing the gap at a speed of forty to forty-five miles per hour, 

that Hamblen realized the truck ahead was stopped or moving only 

very slowly. He testified as to what occurred at that time: 

"Q. Do you recall seeing anything at all about 

the roadway ahead of [the Mid-West Coast truck] 

east and the half or three quarters of a mile 

east to the Mid-West Coast truck? A. No, sir. 

"Q. Do you think that you saw just a clear roadway then? A. I wasn't looking at the roadway, 

I mean as far as to see what was in it or if it 

was clear or not. 

"Q. What were you looking at? A. At the truck 

in front of me. 

"Q. Now, what did you do from that point when 

you were four to five hundred feet behind the Mid- 
West Coast truck and realized that it was 

stopped? What did you do next? A. When I 

realized that it was stopped you have to make 

a decision whether to ditch it or -- 

"Q. Decision about what? A. A decision; I 

first of all, I tapped my bralres and no way 

could I stop without colliding with the back 

end. 

"Q. Why not? A. I was too close at that point." 

It is clear the Comet truck driver paid no attention to the 

stalled Mid-West Coast truck until he was so close he could not 

stop without rear-ending it. It was then he made his choice to 

pull out into the opposite lane of traffic and attempt to pass the 

Mid-West Coast truck. Comet does not argue that it did not follow 

the Mid-West Coast truck too closely, but rather, that it should not 

be held negligent for following too closely because the unanticipated 

stop of the Mid-West Coast truck created a condition of sudden emergency. However, we hold the doctrine of sudden emergency does not 

apply in this situation. 

This Court has recognized the doctrine of sudden emergency, 

but a party asserting sudden emergency cannot obtain the benefit 

of that rule where the emergency itself has been created by the 

actor's own negligent or other tortious conduct. See: Erickson 

v. Perrett, 169 Mont. 167, 545 P.2d 1074, 33 St.Rep. 109 (1976); 

2 Restatement of Torts 2d 1[296, Comment d; Peabody v. Northern 

Pacific Railway Co., 80 Mont. 492, 497, 261 P. 261 (1927); Marsh 

v. Ayers, 80 Mont. 401, 260 P. 702 (1927); Maynard v. City of Helena, 

117 Mont. 402, 160 P.2d 484 (1945). In the present case, the Comet 

truck driver created his own emergency. 

Although the stalled Mid-West Coast truck did present an 

obstacle to the Comet truck's progress, it did not suddenly appear 

in front of the Comet truck. The situation confronting the Comet 

truck driver was "sudden" only with respect to his realization that 

the Mid-West Coast truck was not moving and that he was then too 
close behind it to avoid a collision, if he remained in the eastbound lane. 

Comet argues that its driver's failure to determine whether 

the Mid-West Coast truck was stopped or moving until a few hundred 

feet behind it, was the fault of Mid-West Coast. We disagree. The 

fact that Mid-West Coast's rear lights were not visible does not 

excuse the Comet truck driver's failure to follow the vehicle ahead 

at a safe distance. Sufficient distance separated the two trucks 

when Comet's driver first noted the Mid-West Coast truck near the 

collision scene on the highway ahead to enable him to approach 

safely. It was a clear and sunny day. Surely a motorist has a 

duty to see that which is in plain sight and he is presumed to see 

that which he could see by looking. Marsh v. Ayers, supra; Boepple 

v. Mohalt, 101 Mont. 417, 54 P.2d 857 (1936); Nissen v. Johnson, 

135 Mont. 329, 339 P.2d 651 (1959). At most, any negligence of MidWest Coast would have been a concurring proximate cause. 

In Transport Indemnity Company v. Page, Okl. 1963, 406 P.2d 

980 the court ruled in a similar case that sudden emergency did not 

apply. In the Oklahoma case the first in a string of three eastbound 

trucks stopped at the entrance of a narrow bridge to allow the oncoming plaintiff sufficient clearance to pass through. The second 

truck was able to stop behind the first, but the third could not; 

he attempted to pass and collided with the plaintiff's vehicle. The 

court rejected the contention of the passing truck that its maneuver 

was excused because of the sudden emergency caused by the stopping 

of the preceding trucks, stating: 

" * * * truck #3, by virtue of its own acts, i.e., 

following too closely, failing to maintain a 

proper lookout and failing to maintain a proper 

speed * * * had placed himself in a position 

where he could not stop within the assured clear 

distance ahead." 406 P.2d 983. 

The same can be said of the Comet truck driver's conduct in the 

present case. 
Also, in a similar casetothe present case, ~odriguez v. 

Savage Trans. Co., 77 C.A.2d 162, 175 P.2d 37 (1946), a string of 

traffic had to slow down; the third truck in the string did not 

signal to slow down; and, the fourth truck, not having time to slow 

down without rear-ending the third truck, pulled out into the opposite lane of traffic and struck the plaintiff who was coming from 

the other direction. The case was tried to the court and it found 

the third and fourth trucks were concurrently negligent in causing 

plaintiff's injuries. The third truck was negligent in not signalling to slow down and the fourth truck was negligent in following 

too close and in passing the third truck when it was not safe to do 

so. On appeal the fourth truck argued that the collision was excused by the unanticipated slowing down of the truck immediately 

ahead. In affirming judgment for plaintiff, the court stated: 

" * * * these defendants assume that [the driver 

of the following truck] was proceeding in a 

reasonable manner just prior to the accident. 

Based on this erroneous premise, they then argue 

that [the driver] was faced with a sudden peril 

and that his course of conduct was reasonable 

and prudent under the circumstances." 175 P.2d 41. 

Here, Comet also argues from an erroneous premise that it was proceeding in a reasonable manner just prior to the accident. The 

facts are to the contrary. 

While we do not reject the concept of sudden emergency, we 

emphasize that it has limited application in the law of negligence, 

and trial courts should be very cautious in instructing the jury on 

sudden emergency. In Finley v. Wiley, 103 N.J. Super. 95, 246 A.2d 

715 (1968), the court criticized the sudden emergency rule: 

"Further we entertain grave doubt whether a sudden 

emergency charge should ever be given in an ordinary 

automobile accident case. There is a modern view 

that it is argumentative, unnecessary, and confusing, 

and should be eliminated. * * * 

" * * * defendant was faced with no more than an 

everyday traffic problem for which he should have 

been prepared. The ordinary rules of negligence 

were applicable and afforded a sufficient gauge by 

which to appraise his conduct." (Emphasis added.) 
Further, this Court in Erickson v. Perrett, 169 Mont. 167, 

545 P.2d 1074, 33 St.Rep. 109 (1976) cited Prosser on Torts, 4th 

ed., p. 170, with approval as to the limited application of the 

rule: 

"A further qualification [to the sudden emergency rule] which must be made is that some 

'emergencies' must be anticipated, and the actor 

must be prepared to meet them when he engages in 

an activity in which they are likely to arise. 

Thus under present day traffic conditions, any 

driver of an automobile must be prepared for the 

sudden appearance of obstacles in the highway * * *." (Bracketed material added.) 

Clearly, the trial court was in error to instruct the jury 

on sudden emergency. As we discuss hereinafter, this instruction 

was ultimately prejudicial to Comet Corp. as well as to plaintiffs. 

Plaintiffs further contend that in addition to following 

too closely, the Comet truck failed to pass in safety, in violation 

of section 32-2155, R.C.M. 1947, which provides in pertinent part: 

"No vehicle shall be driven to the left side of the 

center of the roadway in overtaking and passing 

another vehicle proceeding in the same direction 

unless such left side is clearly visible and is free 

of oncoming traffic for a sufficient distance ahead 

to permit such overtaking and passing to be completely 

made without interfering with the safe operation of 

any vehicle approaching from the opposite direction 

or any vehicle overtaken. * * *". 

Comet Corp. argues its truck driver did not violate section 

32-2155, and further, that any statutory violation of the truck 

driver is also excused by the doctrine of sudden emergency. 

Testimony previously quoted, indicated the Comet truck 

driver did not look for approaching traffic as he drew near to the 

Mid-West Coast truck. At a point approximately four hundred feet 

behind the Mid-West Coast truck, he decided to pass, having determined his truck could not be stopped in the distance remaining between them. Comet's truck driver testified as to what occurred 

from the point he made his decision to pass: 
"Q. When you made that decision what did you 

do? Did you do anything to implement the decision that you made? A. I started turning 

out into the eastbound or -- correction, westbound lane. 

"Q. First you started turning out into the 

westbound lane, is that correct? A. Yes. 

"Q. And that means that you were crossing or 

had crossed the center line; is that also correct? 

A. Well, I started to at that point I started to 

cross the center line; yes, sir. 

"Q. How much of your rig had already crossed the 

center line at that point? A. I have no way of 

-- I mean -- 

"Q. But you definitely were partially into the 

westbound lane. Is that a fair statement? A. 

Yes, sir. 

"Q. What did you do next at that point? A. Well, 

I looked up the westbound lane to see if there was 

oncoming traffic. 

"Q. Was that the first time you looked for oncoming traffic? A. Yes, sir. 

"Q. You didn't look for oncoming traffic before 

you made your decision to pass? A. Well, at the 

same time you're pulling out you're looking 

ahead. 

"Q. But still you have just stated and you said 

two or three times you first made your decision 

to pass and then you pulled out into the westbound lane and then you looked for westbound 

traffic. A. This all happened in one motion." 

Comet Corp. argues that this "one motion" of its driver 

was not in violation of section 32-2155, since the driver thought 

he had ample distance between his truck and the McQuade van which 

he first noticed after he pulled out and was committed to passing 

the Mid-West Coast truck. Comet Corp. seeks to excuse the fact its 

truck driver did not determine whether the oncoming lane was clear 

before his passing maneuver began on the ground that he was confronted with the sudden emergency of the Mid-West Coast truck stopped 

on the highway ahead of him. We have heretofore disposed of the 

sudden emergency argument and also reject it here, for the same reasons. The driver's negligence created his own emergency. 
Comet Corp. is not relieved of responsibility to pass in 

safety. In McDonough v. Smith, 86 Mont. 545, 550, 551, 284 P. 542 

(1930), this Court stated: 

"The person passing is negligent if he so carelessly directs or manages his automobile that a 

collision results, or if he attempts to pass at 

a time or under conditions which are not reasonably 

safe. * * * 

" * * * It is also negligence on the part of one 

to drive at a rapid rate of speed so close to a 

car ahead that, if the driver of the latter slows 

down, it becomes necessary for him to turn to the 

left to avoid striking it, and particularly when 

in doing so he must turn in front of a vehicle 

coming from the opposite direction." 86 Mont. 550, 

551. 

To the same effect, see Cowden v. Crippen, 101 Mont. 187, 207, 53 

P.2d 98 (1936); State v. Biering, 111 Mont. 237, 240, 107 P.2d 876 

Comet Corp.'s last argument relating to the failure to obey 

the rule of assured clear distance ahead, and to the failure to pass 

in safety, is that even if there was negligence on the part of its 

driver, the jury could still reasonably find that the collision 

between the Comet Corp. truck and the McQuade van was not proximately 

caused by the violation of any highway traffic statutes. Accordingly, 

Comet Corp. argues, a directed verdict in plaintiffs' favor would 

be improper. We do not accept this argument. The facts of this 

case show negligence and proximate causation. 

Comet Corp. argues the jury was entitled to determine that 

the collision took place after the Comet truck completely passed the 

Mid-West Coast truck and had swung back in its own lane of traffic. 

The plain implication of its argument is that the jury was entitled 

to determine the McQuade van, at the last moment, veered over into 

the wrong lane of traffic and struck the rear trailer wheels of the 

Comet truck. Comet Corp.'s argument is based on the fact the highway patrolman could not find the precise point of impact in relation 
to the center line. The investigating highway patrolman could not 

rely on skid marks to reconstruct the event and pinpoint the impact 

with respect to the center line of the highway because the center 

line was not visible until the snow had been scraped away. 

The evidence is overwhelmingly against the jury making such 

a "reasonable" conclusion. The highway patrolman could only estimate 

the point of impact; he testified that it was "approximately at the 

center line of the highway." The driver of the Mid-West Coast truck 

could not see the impact as his view was shielded by Comet's trailer. 

However, he did testify that although the Comet truck had returned 

substantially to the eastbound lane when he heard the impact, the 

trailer's left rear wheels were still on the north (westbound) side 

of the center line when the impact occurred. The Comet truck's 

relief driver, Roy Huestess, who was riding in the cab at the time 

of the collision, testified that at the time of impact the trailer 

was not in a straight line with the tractor, that the left rear of 

the trailer was "one or two feet" farther north than the front of 

the trailer. 

The driver of the Comet truck , Hamblen, testified concerning 

his belief as to the point of impact: 

"Q. Do you, from the location of your trailer 

and the recollection you have of where the two 

vehicles were, where do you think the impact 

occurred with respect to the center of the road? 

"A. To the best of my knowledge it would be -- 

again you can't use center line -- it would be to 

the center of the road somewhat; I don't know 

exactly how you would say which side. There was 

no center line on the road as we know it. 

"Q. That is what you mean today when you say that 

you think it occurred at the center line? You don't 

mean to say that as an exact statement on your part? 

A. No. That is approximately. I don't know the 

exact center of the road. Like I say, we don't know 

where the center line was. 
"Q. Even though you don't know where it occurred 

then exactly you're satisfied that the McQuade van 

was in its proper driving lane at all times that -. - 

you observed it? A. When it was coming toward me, 

"Q. Until it passed your tractor? A. Yes, sir." 

(Emphasis added.) 

Victor Vetter, who was sitting in the right front passenger 

seat of the McQuade van at the time of the collision, testified that 

as the Comet Corp. rig came around Mid-West Coast, its trailer came 

to the tractor 

around at an angle/so that at the time of the collision, Comet's 

trailer was "mostly" in the westbound lane. Ernest Ibach, another 

passenger in the McQuade van, was sitting in the rear seat when the 

collision occurred. He testified the passing Comet truck was "way 

over on our side of the lane" and appeared to be jackknifing when 

the McQuade van and Comet's trailer collided. 

From this evidence we conclude that Comet Corp. and its 

driver, Robert D. Hamblen, were liable as a matter of law. The 

District Court should have granted a directed verdict against them. 

This negligence started when Comet's truck driver carelessly placed 

himself in a position of not being able to stop behind the Mid-West 

Coast truck without colliding with it, in violation of section 32- 

2160(a), R.C.M. 1947. It continued when the Comet truck driver, in 

an effort to avoid a rearend collision with the stalled Mid-West 

Coast truck, without first looking to see if he could pass safely, 

pulled into the westbound lane, in violation of section 32-2155. 

This negligence persisted right up to the moment of impact with the 

McQuade van. The evidence is overwhelming that the Comet Corp. 

truck was in the wrong lane of traffic at the time of impact. 

Even if we were to assume some negligence on the part of 

the driver of the McQuade van, this negligence could not be imputed 

to plaintiff's husband who was a passenger. Wolf v. O'Leary, Inc., 

132 Plont. 468, 318 P.2d 582 (1957). Moreover, any such negligence 

would at most be a concurring proximate cause of the accident and 
Comet Corp. and its driver would still be liable. Halsey v. Uithof, 

166 Mont. 319, 532 P.2d 686 (1975). 

Plaintiffs' final issue is whether Mid-West Coast was liable 

as a matter of law in failing to keep its brakes in proper working 

order in violation of section 32-21-143.3, R.C.M. 1947; in failing 

to keep its brakes from freezing; and, in failing to display brake 

lights and keep them free from snow. 

The trial court properly refused to grant a directed verdict 

in plaintiffs' favor on this issue. Even assuming the statutory 

violations as asserted by plaintiffs, whether such violations proximately caused Kudrna's death was a question of fact for the jury to 

determine. Sztaba v. Great Northern Ry., 147 Mont. 185, 411 P.2d 

In Halsey v. Uithof, supra, this Court stated as to proximate 

cause and intervening cause: 

"We agree with the proposition that where one has 

negligently caused a condition of danger, he is 

not relieved of responsibility for damage caused 

to another merely because the injury also involved 

the later misconduct of someone else. Eut, this 

is true only if both negligent acts are in fact 

concurring proximate causes of the injury; and it 

is not true if the later negligence is an independent, intervening sole cause of the incident. 

Boepple v. Mohalt, 101 Mont. 417, 54 P.2d 857. 

"In determining whether the negligence in creating 

a hazard (the truck stalled on the highway) was a 

proximate cause of the accident, this test is to 

be applied: Did the wrongful act, in a natural, 

continuous sequence of events, which might reasonably be expected to follow, produce the injury?" 

166 Mont. 327, 328. 

We cannot say as a matter of law that the stalled Mid-West 

Coast truck was a concurring proximate cause of the collision between 

the Comet Corp. truck and the McQuade van. Here there were intervening acts between any alleged statutory violations by the Mid-West 

Coast truck and the actual collision. Since the causal connection 

between Mid-West Coast's truck stopping on the highway and the subsequent collision between the other two vehicles was a question of 
fact, the trial court did not err in presenting the issue of MidWest Coast's liability to the jury. 

It was error, however, to instruct the jury on the sudden 

emergency doctrine in a manner which could have allowed the jury 

improperly to apply the doctrine to the conduct of Mid-West Coast. 

The court's Instruction No. 21 states: 

"You are instructed that when a person is faced 

with a sudden emergency which is not created by 

his own negligence, his conduct is to be tested 

by what an ordinarily prudent person would have 

done under the same or similar circumstances, and 

he is not chargeable with negligence for failing 

to adopt the most judicious course as disclosed 

by subsequent events." 

This instruction correctly states the sudden emergency doctrine as 

it has been adopted by this Court. See: Peabody v. Northern Pacific Railway Co., 80 Mont. 492, 261 P. 261 (1927); Maynard v. city of 

Helena, 117 Mont. 402, 160 P.2d 484 (1945). 

While correct as an abstract statement of the law, Instruction No. 21 as given fails to limit application of the doctrine to 

the question of Comet Corp.'s liability. This is further underscored 

by the giving court's Instruction No. 13: 

"Although there are several defendants in this 

action, it does not follow that if one is liable, 

all are liable. Each defendant is entitled to a 

fair consideration of his own defenses and is not 

to be prejudiced by any finding that you may make 

against the other. Except -- as otherwise indicated, 

all instructions given to you govern the case as 

to each defendant." (Emphasis supplied.) 

Plaintiffs' case against defendants Mid-West Coast Company 

and its drivers James Kennely and Richard Hendrick was not "governed" 

by the sudden emergency doctrine. These defendants neither asserted 

the doctrine applied to them nor relied upon it in any way. Under 

the above instructions, however, the jury could have been led to 

erroneously assume that Mid-West Coast's conduct was legally excusable. 

We have previously held that the trial court should have 

granted a directed verdict of liability against Comet Corp. and that 
it was improper to give Comet Corp.'s offered sudden emergency 

instruction. Here, there are parties defendant other than Comet 

Corp. and the question thus becomes whether the giving of this instruction without any indication that the doctrine's application 

must be confined to Comet Corp. constitutes reversible error as to 

the verdict and judgment in favor of these other defendants? 

We conclude that it does. In an action such as the present 

one, involving multiple defendants whose interests and theories of 

the case are antagonistic to each other as well as to the plaintiff, 

it is most important the jury instructions be accurate and precise. 

It is not enough that an instruction which might lead to one party 

being relieved of liability correctly states the law; the instruction should also state to which of the parties it properly may be 

applied. When, as here, there is no such limitation, and the jury 

therefore may be misled, its verdict and the judgment based thereon 

cannot stand. 

Plaintiffs are not the only parties who were prejudiced by 

the given sudden emergency instruction. Since we have held Comet 

Corp. and its driver, Robert Hamblen, liable as a matter of law, 

plaintiffs' eventual money recovery will be their responsibility. 

~ffirming the judgment relieving Mid-West Coast Company and its 

drivers of liability would result in Comet Corp. being solely respon 

sible for the entire amount found to be due plaintiffs, in spite of 

the fact that the issue of liability was improperly presented to the 

jury. 

We acknowledge that plaintiffs did not object at trial to the 

giving of the sudden emergency instruction on the grounds that the 

jury might misapply the instruction to Mid-West Coast Company; their 

objection was that Comet Corp., the party offering the instruction, 

was not entitled to it as a matter of law. It is also acknowledged 

that neither plaintiffs nor Comet Corp. specified the giving of this 
instruction as reversible error as to the judgment in favor of MidWest Coast Company. Under the narrow circumstances of this case, 

we do not think these facts preclude this Court's review of this 

issue on its own motion. 

The Supreme Court of Indiana, in Big Creek Stone Co. v. 

Seward, 144 Ind. 205, 43 N.E. 5 (1896), stated: 

" * * * If the court were limited to the arguments 

and reasoning of counsel in its decisions of cases, 

to the exclusion of its own observations, many cases 

would lead us far from what we understand to be the 

true object of the court." 

In a later case, the Indiana Supreme Court again addressed the question of whether it is proper for an appellate court to go beyond 

the issues as narrowly presented. In Cleveland, C.C. & St.L. Ry. 

Co. v. Moore, 170 Ind. 328, 84 N.E. 540 (1908), it stated: 

" * * * Where resort to the record is necessary, 

the case will be determined by the record, and in 

such a case the court will not regard itself as bound 

down to the conceptions of counsel on either side as 

to the nature of the controlling facts." 

To the same effect see Van Winkle v. Van Winkle, 124 1nd.App. 626, 

119 N.E.2d 328, 329 (1954). 

By this decision this Court is not repudiating the sound rules 

of practice which require timely, specific objections to instructions 

and the full presentation of issues for review on appeal. On the 

facts having carefully reviewed the entire record, we hold that a 

serious error which appears on the face of that record is reviewable, 

although not presented by the parties. The sudden emergency instruction should not have been given at all in this case. As given, it 

was too general and allowed the sudden emergency doctrine to be 

erroneously applied to parties defendant who neither offered the 

instruction nor relied on it at any stage of the proceedings. The 

instruction was prejudicial ultimately to two of the three sets of 

parties. Substantial injustice resulted from the giving of this 

instruction, an injustice which this Court cannot and will not ignore. 
Accordingly, the judgment in favor of Mid-West Coast Company 

and its drivers, James Kennely and Richard Hendrick, is reversed, 

and the cause remanded for a new trial on the issue of liability. 

The judgment in favor of Comet Corp. and its driver, Robert 

Hamblen, is reversed and the cause remanded to the District Court 

for trial on the issue of damages alone. 

We Concur: 

, ----F---7 

i ' \ Chief Justice /&(;?is&-- k 

Justices