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 9,1977Mr. JusticeDaniel J. Shea delivered the Opinion of the Court.



### his is an appeal from a judgment in favor of defendants in a survivorshipand 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 orderdenying motion for judgment notwithstanding the verdict or in the alternative a new trial. Gilbert J. Kudrnawas killed while riding as a rear seatpassenger 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 collisionwere: On February 

### 7, 1975, Interstate 90 was closed between Laurel, Montana on the east and Livingston, Montana on thewest because of winter storm conditions. On the following morning the highway was reopened for traffic in both directions. Itwas clear and sunnybut 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 snowpacked and slippery; the pavementwas 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 bythe 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 driverwas unable to release them. Because of snowkicked 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 feetbehind Mid-West Coast's truck, the Comet driver realizedMid-West was notmoving 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 thewestbound lane as he pulled out to get around the stationaryvehicle. 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 amile. 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 collidedwith the left side of comet's trailer at its rearmost axle,near the back end of the trailer. The exactpoint of impact on the highway could not be determined because of the snow cover on the surface of the road,but thehighway patrol investigation found the impact to be "near" the center line of the highway. The driver of theMcQuade 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 trailerwas 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 itsdriver;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 causebegan on the June 7, 1976. Plaintiffs and defendantMcQuade Distributing Co., Inc., settled upon a covenant not to sue and the action against McQuadewas ordered dismissed on June 8, 1976. On June 11, the jury found in favorof defendants. Judgmentwas entered on theverdict. Following the DistrictCourt'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 defendantsComet Corp. and Mid-West Coast Company of a total of eightperemptory challenges constitutes reversible error? Defendants contend they had interestsand defenses antagonistic in fact and thus were entitled to four peremptory challengeseach. (2)Whether the DistrictCourt'srefusal 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 againstCometCorp., 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 proximatecause entitled the case to go to the jury. (4)Whether the DistrictCourt should have directed a verdict against Mid-West Coast Company or should have granted plaintiffs' motion for judgmentnotwithstanding 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 causewas a jury question. Issue (1). Montana's jury challenge statute, section 93-5010, R.c.M. 1947,provides inpart: 

### " 

## * 

## * * Challenges to individual jurors are for cause or peremptory. Eachparty is entitled to fourperemptory challenges

## * 

## * *." Plaintiffs rely onMullery v. Great Northern Ry. Co., 50 Mont. 408, 148 P. 323 (1915),and cases following Mullery,where this Court allowed a total of fourperemptory 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 fourperemptory challenges between them. In a recent decision, Leary v. Kelly PipeCo., 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

## * * * thewords

'eachparty' in reference to the permitted four peremptory challenges means 'each side' unless the positions of the codefendantsare hostile to each other. The opinion suggests that hostility between nominal defendantsmay be shown 'bypleading, representation, or evidence.'" Leary expressly overruled an earlier decision, Ferronv. IntermountainTrans. Co., 115 Mont. 388, 143 P.2d 893 (1943),to the extent that Ferronmay be interpreted as requiring a collective total of fourperemptory challenges irrespectiveof the number making up either parties plaintiff or parties defendant. InAnnotation 

### - Jury: NUMBER OF PEREMPTORY CHALLENGES ALLOWABLE IN CIVIL CASE WHERE THEREARE MORE THAN TWO PARTIES INVOLVED, 32 ALR3d 747, 761, it is stated:"Inthe absence of a statutoryprovision expressly requiring parties to join in peremptory challenges, ithas been held or recognized thatwhere it is determined that the interestsof multiple parties are diverse, or their respective defenses are different or hostile, each of themultiple parties is entitled to the fullnumber 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 separatedefense. In their respective answers,and in the pretrial order,Comet and Mid-West eachmaintained the other's negligence caused the collision. During trial, each defendant's case tended to place responsibilityon the other. These defendants had interestsand defenses antagonistic in fact. The District Court recognized this hostility and properly allowed each defendant fourperemptory challenges. Issue (2). This issue questions the exclusion of a statement made between two and tenminutes before the collisionby Hector Rogers,who was eastbound on Interstate 90when he was passed by Comet's semi-truck. Immediatelyafter he was passed, Rogers exclaimed to passengers inhis vehicle,with respect to the Comet vehicle, "youwait and see; just a fewmiles down the road he'll either be in the ditch or have killed someone." This statementwas ruled inadmissibleby the DistrictCourt. 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 aswithin the res gestae exception to otherwise objectionable testimony. Section 93-401-7,R.C.M. 1947, states: "Where,also, the declaration, act, or ommission formspart of a transaction, which is itself the fact indispute, 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 tenminutes after an accidentmay be admissible as part of the res gestae. InBlevins 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 transactionas to form a part of it. Callahan v. Chicago, etc., R. Co., 47Mont. 401, 133 P. 687 [1913];

## * * * Tanner v. Smith, 97Mont. 229, 33 P.2d 547 [1934]". Plaintiffs and Comet Corp. are in conflictwith respect to whether Rogers' statement is sufficiently "connectedwith" the transaction involved in the present action to be within the res gestae exception. The District Court granted amotion in limine to prevent any reference to the statementduring the trial. In Sullivanv. 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 resgestae or dependsupon contradictory inferences,either of whichmay fairly be drawn from such evidence, the solution of the question of admissibility of the evidencemust 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 statementwasmade at a point twomiles from the scene of the collision. However, testimony of the investigatinghighway patrolman, indicated the collision occurred at least 6.5 miles east of the termination of the four laneportion 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 highwaywhere driving conditions were different from thoseprevailing in the area of the collision. We cannot say the discretion of the District Court

was abused; the testimonywas properly excluded.Issue (3). Plaintiffs question whether the evidence shows Comet Corp. and its driver Robert D. Hamblen liable as amatter 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 DistrictCourt should have directed verdicts of liability against them. Plaintiffs rely on a series of decisions where this Court held the following driver inrear.endcollisioncasesnegligent as

amatter of law for following too closely, in violation of section 32-2160(a), R.C.M. 1947, which provides: "(a)The driver of amotor 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 collidedwith the Mid-West Coast truck, and argue that Comet should not escape responsibility for violating the duty imposed by this statutemerely because itmoved 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 statutoryviolations were excused by a sudden emergency created by the immobilized Mid-West Coast truck, and, in any event, the proximate cause of Kudrna'sdeath was not due to the negligence of the driver of the Comet truck. Comet contends the soleproximate cause of Kudrna's death was the negligence of the immobilized Mid-West Coast truck. Cases cited by plaintiffs involve various situationswhere liabilitywas ultimately imposed as amatter of law or where statutory violations amounted to contributory negligence as amatter of law.However, none involve a considerationof the sudden emergency rule asserted in behalf of defendant Comet. InCuster Broadcasting Corp. 

### v. Brewer, 163Mont. 519, 522, 515 P.2d 257 (1974),this Court held a driver who collided with the vehicle ahead negligent as amatter 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 othervehicles 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 Seneca1v. Clark, 158Mont. 33, 37, 487 P.2d 1307 (1971)held the District Courtproperly granted the plaintiffs' motion for summary judgmenton the issue of liability against the defendant,who collided with a vehicle he was attempting to pass. Defendantwas held liable as amatter of law for following too closely. InRader v. Nicholls, 140Mont. 459, 462, 373 P.2d 312 (1962), this Court affirmed the DistrictCourt'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 amatter 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 isnegligenceper 

### - se

## * * 

## *." 140Mont. 462.

7 InHurly v. Star Transfer Co., 141Mont. 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 itsproper lane. This Court affirmed stating: "Since

## * * * defendant'sdriver was negligent as amatter of law, the case, as to those questions, presented only a question of law. When a case presents only a question of law a directedverdict isproper. Section 93-5205,R.C.M. 1947;Richardson v. Crone, 127Mont. 200, 258 P.2d 970." 141Mont. 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 jurywas entitled to find that any statutoryviolations were not the proximate cause of Kudrna'sdeath. To constitute negligence per se, a statutoryviolationmust also be the proximate cause of the injuries sustained. However,we do not agree that the driver's conductwas justified by a sudden emergency. The evidence in this case shows that Comet'sdriver noticed the Mid-West Coast truck ahead of him near the the collision scene, from a distance of approximately 1700 feet. Itwas not until Comet

waswithin four to five hundred feet of the Mid-West Coast truck, and closing the gap at a speed of forty to forty-fivemiles 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. Doyou recall seeing anything at all about the roadway ahead of [the Mid-West Coast truck] east and the half or three quarters of amile east to the Mid-West Coast truck? A. No, sir. "Q. Doyou think thatyou saw just a clear roadway then? A. Iwasn't looking at the roadway, Imean 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 youwere four to five hundred feetbehind the Mid-West Coast truck and realized that it was stopped? What did you do next? A. When I realized that itwas stoppedyou have to make a decision whether to ditch it or 

### -- "Q. Decision about what? A. A decision; I first of all, 

### I tappedmy bralres and noway could 

### I stop without colliding with the back end. "Q. Why not? A. Iwas too close at thatpoint." It is clear the Comet truck driverpaid no attention to the stalled Mid-West Coast truck until he was so closehe could not stopwithout rear-ending it. Itwas then he made his choice to pull out into the opposite lane of traffic and attempt to pass the Mid-West Coast truck. Comet doesnot 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 emergencydoes 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, 169Mont. 167, 545 P.2d 1074, 33 St.Rep. 109 (1976); 2 Restatement of Torts 2d 1[296,Comment d;Peabodyv. Northern Pacific Railway Co., 80Mont. 492, 497, 261 P. 261 (1927); Marsh

v. Ayers, 80 Mont. 401, 260 P. 702 (1927);Maynard v. City of Helena, 117Mont. 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, itdid not suddenly appear in front of the Comet truck. The situation confronting the Comet truck driverwas "sudden" only with respect to his realization that the Mid-West Coast truck was notmoving and that he was then tooclose 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 ormoving until a fewhundred feet behind it,was the fault of Mid-West Coast. We disagree. The fact that Mid-West Coast's rear lightswere 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 theMid-West Coast truck near the collision scene on the highway ahead to enable him to approach safely. Itwas a clear and sunny day. Surely amotorist has a duty to see that which is inplain sight and he ispresumed to see thatwhich he could seeby looking. Marsh v. Ayers, supra;Boepple



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

### v. Johnson, 135 Mont. 329, 339 P.2d 651 (1959). At most, any negligence of MidWest Coastwould have been a concurring proximate cause. InTransport Indemnity Companyv. 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 collidedwith the plaintiff's vehicle. The court rejected the contention of the passing truck that itsmaneuver

was excused because of the sudden emergency caused by the stopping of thepreceding trucks, stating: 

### " 

## * * * truck #3, by virtue of its own acts, i.e., following too closely, failing tomaintain a proper lookout and failing to maintain aproper 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 casetothepresent case, ~odriguez v. SavageTrans. Co., 77 C.A.2d 162, 175 P.2d 37 (1946),a string of traffic had to slowdown; the third truck in the string did not signal to slowdown; 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 casewas tried to the court and it found the third and fourth truckswere 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 inpassing the third truck when itwas not safe to do

so. On appeal the fourth truck argued that the collisionwas 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 justprior 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 conductwas reasonable and prudent under the circumstances." 175 P.2d 41. Here, Comet also argues from an erroneous premise that itwas proceeding in a reasonablemanner 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. InFinley 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 amodern view that it is argumentative, unnecessary, and confusing, and should be eliminated.

## * * * " 

### * 

## * * defendantwas 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." (Emphasisadded.)Further, this Court in Ericksonv. 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 [tothe sudden emergency rule] which must be made is that some

'emergencies'must be anticipated,and the actor must be prepared tomeet themwhen 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 

## * * 

## *." (Bracketedmaterial 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, inviolation of section 32-2155,R.C.M. 1947,which provides inpertinent part: "Novehicle shallbe 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 clearlyvisible 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 statutoryviolation of the truck driver is also excused by the doctrine of sudden emergency. Testimonypreviously 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 youmade that decision what did you do? Did you do anything to implement the decision thatyoumade? 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. Howmuch of your rig had already crossed the center line at thatpoint? A. I have no way of 

### -- Imean 

### -- "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 thatpoint? A. Well, I looked up thewestbound 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 timeyou'repulling out you're looking ahead. "Q. But stillyou have just stated and you said two or three timesyou first made your decision to pass and thenyoupulled out into the westbound lane and then you looked for westbound traffic. A. This all happened in onemotion." Comet Corp. argues that this "onemotion" of its driver

was not in violation of section 32-2155, since the driver thought he had ample distance between his truck and theMcQuade 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 determinewhether the oncoming lane was clear before his passing maneuver began on the ground that he was confrontedwith 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 ithere, for the same reasons. The driver'snegligence created his own emergency.Comet Corp. is not relieved of responsibility to pass in safety. InMcDonough 

### v. Smith, 86 Mont. 545, 550, 551, 284 P. 542 (1930),this Court stated: "Theperson 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, itbecomes 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 oppositedirection." 86 Mont. 550, 551. To the same effect, seeCowden v. Crippen, 101Mont. 187, 207, 53 P.2d 98 (1936);State v. Biering, 111Mont. 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 inplaintiffs' favorwould be improper. We do not accept this argument. The facts of this case show negligence and proximate causation. Comet Corp. argues the jurywas entitled to determine that the collision took place after the Comet truck completelypassed 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 relationto 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 linewas not visible until the snowhad been scraped away. The evidence is overwhelmingly against the jurymaking such

a "reasonable"conclusion. The highway patrolman could only estimate the point of impact;he testified that it was "approximatelyat the center line of the highway." The driver of theMid-West Coast truck could not see the impact as his viewwas shielded by Comet's trailer. However, he did testify that although the Comet truck had returned substantially to the eastbound lanewhen he heard the impact, the trailer's left rear wheels were still on the north (westbound) side of the center linewhen 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 linewith the tractor, that the left rear of the trailerwas "oneor 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 locationof your trailer and the recollectionyou have of where the two vehicleswere,where do you think the impact occurred with respect to the center of the road?

"A. To the best of my knowledge itwould be 

### -- again you can't use center line 

### -- itwould be to the center of the road somewhat; Idon't know exactly how youwould saywhich side. Therewas no center line on the road as we know it.

"Q. That iswhat youmean todaywhen you say that you think it occurred at the center line? You don't mean to say that as an exact statement onyour part? A. No. That is approximately. 

### Idon't know the exact center of the road. Like 

### I say,we don't know where the center linewas."Q. Even though you don't knowwhere it occurred then exactly you're satisfied that the McQuade van was in itsproper driving lane at all times that -. - you observed it? A. When itwas coming towardme, "Q. Until itpassed your tractor? A. Yes, sir." (Emphasisadded.) Victor Vetter, who was sitting in the right frontpassenger seat of the McQuade van at the time of the collision, testified that

as the Comet Corp. rig came aroundMid-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 collisionoccurred. He testified the passing Comet truck was "way

over on our side of the lane" and appeared to be jackknifingwhen 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 amatter of law. The District Court should have granted a directed verdict against them. This negligence startedwhen Comet's truck driver carelesslyplaced himself in a position of not being able to stop behind theMid-West Coast truck without colliding with it, inviolation of section 32- 2160(a), R.C.M. 1947. Itcontinued when the Comet truck driver, in

an effort to avoid a rearend collision with the stalledMid-West Coast truck, without first looking to see if he could pass safely, pulled into the westbound lane, inviolation of section 32-2155. This negligencepersisted right up to themoment 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'shusband who was a passenger. Wolf v. O'Leary, Inc., 132 Plont. 468, 318 P.2d 582 (1957). Moreover, any such negligence would atmost be a concurring proximate cause of the accident andComet Corp. and its driverwould 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 deathwas a question of fact for the jury to determine. Sztabav. Great Northern Ry., 147Mont. 185, 411 P.2d

InHalsey v. Uithof, supra, this Court stated as to proximate

cause and intervening cause: "Weagree with the proposition that where one has negligently caused a condition of danger, he is not relieved of responsibility for damage caused to anothermerely because the injury also involved the latermisconduct of someone else. Eut, this is true only if both negligent acts are in fact concurringproximate 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, 101Mont. 417, 54 P.2d 857. "Indetermining whether the negligence in creating a hazard (thetruck 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 sequenceof 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 stalledMid-West Coast truck was a concurring proximate cause of the collision between the Comet Corp. truck and theMcQuade van. Here therewere 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 collisionbetween the other two vehicleswas a question offact, the trial courtdid not err inpresenting 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 InstructionNo. 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 personwould have done under the same or similar circumstances,and he is not chargeable with negligence for failing to adopt themost judicious course as disclosed by subsequent events." This instructioncorrectly states the sudden emergency doctrine as it has been adopted by this Court. See: Peabody v. Northern Pacific Railway Co., 80Mont. 492, 261 P. 261 (1927); Maynard v. city of Helena, 117Mont. 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 furtherunderscored by the giving court's InstructionNo. 13: "Althoughthere 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 considerationof his own defenses and is not to be prejudiced by any finding thatyoumay make against the other. Except--as otherwise indicated, all instructions given to you govern the case as to each defendant." (Emphasissupplied.) Plaintiffs' case against defendantsMid-West Coast Company and its drivers James Kennely and Richard Hendrickwas 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 thatit 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 instructionwithout 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 itdoes. In an action such as the present one, involvingmultiple defendants whose interestsand theories of the case are antagonistic to each other as well as to the plaintiff, it ismost important the jury instructionsbe 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 itproperly may be applied. When, as here, there is no such limitation,and the jury therefore may be misled, its verdict and the judgmentbased thereon cannot stand. Plaintiffs are not the only parties who were prejudiced by the given sudden emergency instruction. Sincewe have held Comet Corp. and its driver, Robert Hamblen, liable as a matter of law, plaintiffs' eventualmoney 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 liabilitywas improperlypresented to the jury. We acknowledge that plaintiffsdid not object at trial to the giving of the sudden emergency instructionon the grounds that the jurymight misapply the instruction to Mid-West Coast Company; their objectionwas thatComet 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 thisinstruction 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 ownmotion. The Supreme Court of Indiana, in Big Creek Stone Co. v. Seward, 144 Ind. 205, 43N.E. 5 (1896),stated: 

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## * 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 isproper 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, 84N.E. 540 (1908),it stated: 

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## * * * Where resort to the record is necessary, the case will be determined by the record,and in such a case the courtwill 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 seeVan 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 theparties. 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 defendantwho neither offered the instruction nor relied on it at any stage of the proceedings. The instructionwas prejudicialultimately to two of the three sets of parties. Substantial injustice resulted from the giving of this instruction, an injusticewhich this Court cannotand 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 theDistrict Court for trial on the issue of damages alone.

We Concur:

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Justices