No. 87-202 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

DWIGHT DOUGLAS SMITH, 

Plaintiff and Appellant, 

-vsMARLENE RORVIK, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C.B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Channing J. Hartelius; Hartelius, Ferguson & Baker, 

Great Falls, Montana 

For Respondent: 

Robert Terrazas; Worden, Thane & Haines, Missoula, 

Montana 

Submitted on Briefs: Nov. 24, 1987 

Decided: March 9, 1988 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Dwight Douglas Smith appeals from a verdict and judgment 

in favor of defendant Marlene Rorvik in the District Court, 

Twentieth Judicial District, Lake County, arising out of a 

car-pedestrian collision which occurred on Airport Road, near 

St. Ignatius on June 13, 1984. 

On consideration, we reverse and remand for a new trial. 

We examine the following issues on appeal: 

1. The propriety of the opinion evidence of the highway 

patrol officer. 

2. Proper jury instructions on the statutory duty of a 

driver relating to pedestrians. 

3. Proper instructions respecting warning devices for 

disabled vehicles. 

4. Whether counsel may argue to the jury on the legal 

effect of the application of the comparative negligence 

statute. 

On June 13, 1984, plaintiff Smith was operating a 

front-end loader on a public highway. Because the engine of 

the loader overheated, he parked the vehicle on the right 

side of the east bound lane of the roadway so that he could 

obtain water from a nearby irrigation ditch. As parked, his 

loader occupied 7 feet 6 inches of the 22 foot total paved 

width of the roadway. 

Randy Monroe was following Smith in a truck. He pulled 

his truck off to the right side of the roadway and came to a 

stop behind the loader. Monroe activated his emergency 

flashers and then attempted to assist Smith. Neither Smith 

nor Monroe placed any emergency warning devices on the 

roadway. Smith climbed up on the loader's tire in order to 
pour two pop bottles of water into the radiator of the 

vehicle. He was injured shortly thereafter. 

Marlene Rorvik was driving an automobile east on the 

same roadway. She testified that she saw the loader and the 

truck parked on the right side of the roadway. She did not 

see any flashing lights but she did see a man on the loader. 

As she was passing, her vehicle struck Smith, who was then on 

the pavement. 

Rorvik testified that Smith jumped from the loader tire 

onto the roadway. Smith contended that he was struck as he 

walked from behind the loader. Under either version, Smith 

was on the roadway when struck. 

A Montana highway patrol officer investigated the 

accident, arriving at the accident scene approximately 20 

minutes after the occurrence. Smith had already been 

transported to the hospital in an ambulance, and Monroe had 

moved the truck, located behind the loader. No citations for 

criminal traffic violations were issued by the highway 

patrolman to either party. 

Smith filed an action against the defendant driver in 

the Lake County District Court, seeking damages for the 

personal injuries he sustained as a result of a 

pedestrian-car collision. 

THE TESTIMONY OF THE HIGHWAY PATROLMAN 

Far in advance of the trial, the highway patrolman was 

interviewed and deposed by counsel for Smith. The patrolman 

was also interviewed by defendant's counsel and the patrolman 

accompanied counsel for the defendant to the scene of the 

occurrence prior to the trial. The patrolman was named as a 

witness by both parties but he was not named as an expert 

witness by Rorvik's counsel in response to Smith's 

interrogatories. Smith contends it was reversible error for 
the trial court to permit the patrolman to testify as an 

expert in that situation. 

The patrolman testified that he was notified of the 

accident at 7:00 p.m. on that date and reached the scene 

about 20 minutes later. As he came to the accident scene, he 

passed an ambulance which was already transporting Smith to 

the hospital in St. Ignatius. He observed the loader in the 

eastbound half of the highway with all four wheels on the 

pavement. He measured the loader and determined the distance 

that it projected into the roadway. 

The patrolman interviewed Marlene Rorvik at the scene. 

She told him she had begun to proceed around the loader on 

the road when a person jumped from the loader and was struck 

by her car. The patrolman talked to other witnesses at the 

scene. Randy Monroe said he had not seen the accident since 

he had his back turned. Monroe was in a field looking for a 

container for water. The patrolman also talked to Lynn 

Birthmark and Steve Weingart, the driver and passenger in a 

vehicle following Marlene Rorvik, who told him that they had 

been traveling at approximately 35 miles per hour. They did 

not tell him anything about her speed, the point of impact, 

or the point of the highway where Smith landed after the 

collision. The patrolman noted on his investigation report 

that the speed limit at the time of the accident would have 

been 55 miles per hour. (The actual speed limit is disputed; 

it was probably 35 miles per hour, though no witness, 

including the highway patrolman, saw any signs respecting 

that speed limit. A county road supervisor testified that to 

his knowledge such 35 miles per hour signs were posted on the 

date of the accident. ) 

In direct examination, the patrolman stated that he had 

been a highway patrolman for 16 years and that he 

investigated approximately 1600 accidents in that time. He 
had attended approximately 80 hours of classroom training on 

accident investigation. He had testified as an opinion 

witness about the cause of accidents in other cases. 

The patrolman testified that on arriving at the accident 

scene, he observed the position of the loader parked on the 

highway, measured its bucket which extended 7 feet 6 inches 

into the highway surface, measured the total width of the 

highway, and talked to Marlene Rorvik and witnesses Lynn 

Birthmark and Steve Weingard as well as Randy Monroe. He did 

not ever talk to the plaintiff Dwight Smith. He determined 

that there were no flares or other warning devices set out 

behind or in front of the Smith vehicle. He determined what 

Smith had done prior to the impact by the statements he 

received from Marlene Rorvik. Before the patrolman arrived, 

Randy Monroe had moved the truck from its position behind the 

loader. The patrolman did not learn of the presence of the 

truck behind the loader until days later. 

On cross-examination, the patrolman admitted that he 

assumed the speed limit was 55 miles per hour because no 

speed limit sign was posted; it was his opinion that Smith 

did not properly display flags and flares at the scene, and 

that he had failed to yield the right of way to a vehicle as 

a pedestrian; and he did not know when he formed his opinion 

that a truck had been parked behind the front end loader so 

that Rorvik had to pass the truck before she could pass the 

loader. It also developed on cross-examination that the 

patrolman had thought, from the position of the shovel on the 

loader, that it was going in the other direction and was 

parked on the wrong side of the road. There were no 

skidmarks and the patrolman did not determine the stopping 

distance of the Rorvik vehicle from the point of impact with 

the pedestrian to the place where the vehicle had stopped; he 

did not determine nor measure the distance that Smith had 
been thrown by the impact from the vehicle from the point of 

impact to the place where he came to rest; his discussions 

with Randy Monroe and Lynn Birthmark were brief, and he 

stated that they did not volunteer any information to him. 

He testified that the damage to the Rorvik vehicle was as 

portrayed in Exhibit C, a photograph which shows scuff marks 

of some sort on the bumper below and to the right of the left 

headlight and some scuff marks on the front part of the 

bonnet or hood of the Rorvik vehicle. 

In his direct examination, the patrolman testified as 

follows: 

Q. Now, Officer, based upon your investigation of 

the accident, why didn't you cite Ms. Rorvik for 

speeding? A. I had no evidence to support the 

fact that she was speeding. 

Q. Why didn't you cite her for careless driving? 

A. I had no evidence to prove she was driving 

carelessly. 

Q. Why didn't you cite her for driving in an 

unsafe and imprudent manner? A. I felt she was 

driving safe at the time. 

9. Why didn' t you cite her for failure to reduce 

her speed in the face of a potentially hazardous 

situation? A. I feel she did. 

Q. Why didn't you cite her for failing to pass 

safely? A. I feel she was passing safely. 

Q. Why didn't you cite her for failing to exercise 

due care to avoid colliding with a pedestrian? A. 

I feel that she did. 

Q. Why didn't you cite her for being negligent or 

for violation of a basic rule? A. She was not 

negligent and she violated no basic rule. 

MR. RYAN: Your Honor, excuse me, I'm going to move 

to strike the witness' answer--the witness1 answer 

he volunteered about negligence--on the grounds 
it's a legal conclusion, speculative and should not 

have been given that way. 

THE COURT: Overruled, the answer will stand. 

Those questions and the answers given constitute 

prejudicial error against the plaintiff Smith. The trial 

court should have sustained the objection to the reference 

about negligence. The questions were objectionable, even 

though the patrolman was testifying as an expert. The 

questions were objectionable at least on the following 

grounds : 1) they were irrelevant; 2) they were 

argumentative in form; 3) they described as crimes things 

which are not crimes; 4) they called not for objective 

evidence but for the mental conclusions of the witness; and, 

5) they were hearsay. 

Though of first impression in this state (but see 

O'Brien, infra) , it is clear in the law that admitting 

testimony of an officer that he made no arrest following a 

collision is error. Danner v. Walters (Neb. 1951), 48 N.W.2d 

635. Admitting such testimony is prejudicial error. Allen 

v. Ellis (Kan. 1963), 380 P.2d 408. In Ferreira v. General 

Motors Corporation (Hawaii App. 1983), 657 P.2d 1066, 1069, 

it is stated: "If evidence of an acquittal is inadmissible, 

a fortiori, evidence of the issuance or nonissuance of a 

traffic citation is likewise inadmissible." In Underwood v. 

Butler (Ga. App. 1983), 304 S.E.2d 729, 166 Ga. App. 527, 

Judge Birdsong noted: 

. . . That the officer did not issue appellant a 

criminal citation is no more relevant and 

admissible in a civil trial than it would be if the 

citation had been issued and the appellant found 

not guilty. The elements of proof in civil and 

criminal trials are decidedly different. (Citing a 

case.) Evidence that the officer did not issue a 

criminal citation to the appellant is generally 

irrelevant to the question of negligence in a civil 
trial. This rule is not changed by the fact that 

the officer had earlier, without objection by the 

appellant, been permitted to express his opinion as 

to her negligence. 

304 S.E.2d at 731. 

In this case, the plaintiff had moved - in limine for an 

order preventing the patrolman from testifying as an expert 

since he was not listed by the defendant as an expert in 

pretrial discovery. The District Court denied this motion. 

The motion, however, was not denied until the afternoon of 

the first day of trial after the jury had been selected on 

March 30, 1987. Smith's counsel had taken the deposition of 

the patrolman on November 8, 1985. At that time, the 

patrolman testified that he did not consider himself an 

accident reconstruction expert, and that the opinions he was 

rendering in the deposition were from a criminal standpoint 

and not from a civil standpoint. Upon proper requests by 

Smith through interrogatories that Rorvik identify any expert 

witnesses, it became the duty of Rorvik to identify those 

witnesses, including the highway patrolman before trial. 

Sanders v. Mt. Haggin Livestock Company (19721, 160 Mont. 73, 

500 P.2d 397; Smith v. Babcock (1971), 157 Mont. 81, 482 P.2d 

1014. (A proper disclosure by Rorvik of the intention to 

call the patrolman as an expert on civil liability would have 

warned Smith and led to probable further motions to the court 

respecting the foundation for the patrolman's testimony as an 

expert.) In this case, the patrolman had spoken only to 

Rorvik, and at trial announced that he had based his opinion 

on what Rorvik had told him, plus what he had learned from 

other witnesses at the time of his investigation. However, 

no other eye witness at the scene could identify how the 

collision occurred. The only two witnesses to the actual 

circumstances of the collision were Rorvik on the one hand 
and Smith on the other. If the information obtained by the 

patrolman through his investigation were insufficient for him 

to form an opinion as an expert, the lack of foundation to 

qualify him for his opinion would be an issue for 

determination. See Tacke v. Vermeer Mfg. (Mont. 1986), 713 

P.2d 527, 43 St.Rep. 123. We have held that where the 

patrolman had inadequate information to form an opinion as to 

speed, that he should not be asked to testify thereon, 

O'Brien v. Great Northern Railway (1965), 145 Mont. 13, 400 

P.2d 634: 

On direct and cross-examination the witness 

admitted that he was not an eye witness to the 

accident, having arrived some five minutes 

thereafter; that due to the impact, there was no 

way to determine the speed of the vehicle from the 

skidmarks on the highway; and, that he was not 

familiar with stopping distances in terms of speed. 

Shortly thereafter, in response to a question of 

whether there was any evidence of violation of the 

speed limit by the decedent, he replied, over 

appellant's objection, "I don't know whether I 

could judge and give a conclusive answer to that or 

not. In my own mind, I don't think the man was 

exceeding the speed limit." We think that the 

witness' answer was predicated on pure speculation 

and conjecture; the appellant's objection that the 

question was without proper foundation and called 

for a conclusion was valid and should have been 

sustained. In view of the fact that the witness 

was a highway patrolman testifying as an expert 

witness, the testimony given by him might have been 

accorded considerable weight by the jury, and, 

inasmuch as it tended to establish the freedom of 

the decedent from contributory negligence, it was 

unduly prejudicial to the appellant's case and 

therefore reversible error to admit it. 

145 Mont. at 19-20, 400 P.2d at 638. 

INSTRUCTIONS RELATING TO VEHICLE-PEDESTRIAN COLLISION 

On the subject of the relative duties between a 

pedestrian on a highway and a driver approaching such a 
pedestrian, the District Court gave the following 

instructions: 

INSTRUCTION NO. 18 

A Montana statute provides a person operating 

or driving a vehicle of any character on a public 

highway of this state shall drive it in a careful 

and prudent manner, and at a rate of speed no 

greater than is reasonable and proper under the 

conditions existing at the point of operation, 

taking into account the amount and character of 

traffic, weight of vehicle, grade and width of 

highway, condition of surface, and freedom of 

obstruction to view ahead, and he shall drive it so 

as not to unduly or unreasonable [sic] endanger the 

life, limb, property, or other rights of a person 

entitled to the use of the street or highway. 

INSTRUCTION NO. 19 

A Montana statute provides that a person 

operating or driving a vehicle of any character on 

a public highway of this state shall drive it in a 

careful and prudent manner so as not to unduly or 

unreasonably endanger the life, limb, property, or 

other rights of a person entitled to the use of the 

street or highway. 

INSTRUCTION NO. 20 

A Montana statute provides that every 

pedestrian crossing a roadway at any point other 

than within a marked crosswalk or within an 

unmarked crosswalk at an intersection shall yield 

the right-of-way to all vehicles upon the roadway. 

Notwithstanding the foregoing provision, every 

driver of a vehicle shall exercise due care to 

avoid colliding with any pedestrian upon any 

roadway and shall give warning by sounding the horn 

when necessary. 

INSTRUCTION NO. 22 

It is the duty of every person using a public 

street or highway, whether as a pedestrian or as a 

driver of a vehicle, to exercise ordinary care at 

all times to avoid placing himself or others in 
danger and to use like care to avoid an accident 

from which an injury might result. 

In addition, Smith's counsel requested the District 

Court to give the following instruction: 

A Montana statute provides that a driver of a 

vehicle shall drive at an appropriate reduced speed 

when a special hazard exists with respect to 

pedestrians. 

The proposed instruction is based upon S 61-8-303 (5) , MCA. 

The District Court denied the proposed instruction on 

two grounds: (1) that the statute does not apply to 

pedestrians not in a crosswalk; and, (2) under the evidence 

of the case, the driver, prior to the accident, did not 

perceive any special hazard with respect to a pedestrian. 

However, the statute applies to all pedestrians, whether or 

not in a crosswalk, and the second reason given by the 

district judge was an issue for determination by the jury. 

Although the other instructions given by the District 

Court relate to the several duties between a driver and a 

pedestrian on a public highway, none of those instructions 

told the jury that when a special hazard exists with respect 

to a pedestrian, the driver must reduce his speed. This was 

an important part of the theory of the plaintiff in this 

case. It is reversible error to refuse to instruct on an 

important part of a party's theory of a case. Northwestern 

Union Trust Company v. Worm (Mont. 1983), 663 P.2d 325, 327, 

40 St.Rep. 758, 761. 

INSTRUCTIONS RELATING TO THE DUTY OF PLACING 

FLARES OR OTHER WARNINGS BY DISABLED VEHICLES 

The District Court instructed the jury that Smith had a 

duty in this case to display two red flags upon the roadway 

in the lane of traffic occupied by his disabled vehicle, one 

at a distance of approximately 100 feet in advance of the 
vehicle; and one at approximately a distance of 100 feet to 

the rear of the vehicle. Section 61-9-412 (4), MCA. Smith 

objects to the giving of this instruction upon the ground 

that since the truck behind the disabled vehicle was 

exhibiting its flashing emergency lights, there was no need 

for the flags to be placed behind the disabled vehicle. With 

this, we cannot agree. There is a statutory duty regarding 

warning flags placed upon drivers of disabled vehicles left 

upon the travelled portion of the highway, and defendant had 

the same right for instructions on her theory of the case as 

did the plaintiff, discussed foregoing. 

ARGUMENT OF THE EFFECT OF COMPARATIVE NEGLIGENCE 

Smith on appeal argues that the District Court erred in 

refusing to permit arguments by counsel to the jury as to the 

legal effect of comparative negligence, when the negligence 

of the plaintiff exceeds that of the defendant. Section 

27-1-702, MCA. 

The District Court did rule and admonish counsel that 

the court did not want any argument to the jury relating to 

the effect of varying percentages of fault that the jury may 

find as between the plaintiff and the defendant. Defendant 

did object to this ruling, but the objection was more pro 

-- forma than substantive. 

No instructions on comparative negligence in this case 

were offered by the plaintiff or the defendant, or given by 

the court. Whether we accept Rorvik's version--that Smith 

jumped into her path, or Smith's version--that he was struck 

as he came from behind the loader into the highway area--it 

is obvious that comparative negligence was an issue, and that 

on remand, instructions on comparative negligence should be 

given to the jury. 

Although no instructions were given to the jury on 

comparative negligence in this case, special verdict forms 
were submitted which indicated, by the composition of the 

questions, that if the jury found negligence on the part of 

Rorvik which contributed to plaintiff's injuries, it must 

thereafter determine whether Smith was contributorily 

negligent, and then make a comparison of their negligence. 

However, the jury in this case determined that although 

Rorvik was negligent, her negligence was not a proximate 

cause of the injuries sustained by Smith. It is difficult to 

understand under the instructions given by the court how 

Rorvik could have been negligent and yet that negligence 

should not be a proximate cause of the injuries sustained by 

Smith. It is quite evident that the jury was confused by the 

concept of proximate cause because it sent four questions on 

that subject out to the District Court during the time the 

jury was deliberating on the case. 

On retrial, the District Court should instruct the jury 

on comparative negligence in order that the jury may 

understand the effect of the related questions in the special 

verdict, if the jury should come to that. The District Court 

may not restrict argument of counsel as to the effect of 

findings under comparative negligence. Under B 25-7-301(6), 

MCA, counsel in arguing the case to the jury, may argue and 

comment upon the law of the case as given in the instructions 

of the court, as well as the evidence of the case. 

The judgment is reversed and the cause remanded for new 

trial. 

We Concur: 

Chief Justice 
Justices 

Mr. Justice L. C. Gulbrandson, specially concurring. 

I concur with the result expressed in the majority 

opinion but I do not concur with all that is stated therein. 

I specifically do not concur with the comments that the 

verbatim questions to the investigating patrolman, and his 

answers thereto, constitute prejudicial error against the 

plaintiff. Although the questions may have been 

objectionable, no objection was made by plaintiff's counsel 

to any of the questions. I would not treat the motion to 

strike the witness's answer as an objection to the question 

asked. 

specia 

Mr. Chief Justice J. 

.1 concurrence of Just 

Turnage joins in the foregoing