### No. 12994 

### INTHE SUPREME COlJRT OF 

### THE STATE OF MONTANA 1976

CLINTON SWEET, Plaintiff and Appellant,


### -vs

# - KENNETH EDMONDS, Defendant and Respondent.
Appeal from: District Court of the Thirteenth Judicial District, Honorable 

### C. 

### B. Sande, Judge presiding. Counsel 

### of Record 

### : For Appellant: 

### Joseph 

### P. Hennessey argued, Billings, Montana For Respondent: Crowley, Kilbourne, Haughey, Hanson and Gallagher,

Billings, Montana Ronald R. 

### Lodders argued, Billings, Montana

Submitted

### : September 10, 1976 Decided

### :

## fi

# ci: j 

### Filed:Mr. 

### Justice John Conway Harrison delivered the Opinion of the Court. This is 

### an appeal by plaintiff Clinton Sweet from a judgment of thedistrictcourt granting defendant Kenneth Edmonds' motion for a directed verdict. Plaintiff 

### was injured when his automobilewas struck by another automobile driven by defendant. Plaintiff's subsequent negligence action against defendant 

### was tried inJanuary 1975before a jury inYellowstone County. At

### theclose of plaintiff's case inchief, defendant moved for 

### a directed verdict on the grounds plaintiff was contributorily negligent and the proof was insufficient to show that any negligence on the part of defendant was a proximate
cause of the collision. The districtcourt granted defendant's motion. After careful examination of the record, 

### we hold the districtcourt should have allowed the case togo tothe jury. The collisionoccurred in the earlymorning hours 

### at the intersectionof Sixth StreetWest and Broadwater Avenue inBillings, Montana. At

### thatpoint Broadwater 

### was a four lane through streetand therewas 

### a stop sign on Sixth. The posted speed 

### limitwas twenty-five miles per hour. The street was dry, the weather was clear, and the intersectionwas lit 

### by a 

### street lighton the corner. Plaintiff testified atthe trialthat he approached Broadwater from the south, stopped atthe stop sign on Sixth, and looked inboth directions for traffic. He 

### said he was turning right onto Broadwater when he was hit from behind by defendant's automobile which was proceeding easton Broadwater inthe farright hand lane. Plaintiff conceded he had a clear view to the west 

### of about one cityblock when stopped at

### the intersection, but maintained he never saw defendant's automobile. Defendant testified he was driving about thirtymiles per hour and saw plaintiff's automobile only a second beforethe collision. Defendant argues plaintiff violated the right-of-way rule established by section 32-2172, R.C.M. 1947, and was contributorily negligent asa matter of law 

### by entering Broad

### water when defendant's automobile 

### was so close astoconstitute
an immediate hazard. The defense of contributory negligence, by definition, requires proof of both negligence and proximate
cause. Grabs v. Missoula Cartage Co., Mont. 

## , 545 P.2d 1079, 33 St.Rep. 154; Gilleard v. Draine, 159 Mont. 167, 171, 496 P.2d 83. We said inErickson v. Perrett, Mont

# . I 545 P.2d 1074, 1077, 33 St.Rep. 109: "We note that the

### mere happening of an accident is insufficient evidence of negligence. Flansberg v. Montana Power Co., 154 Mont. 53, 58, 460 P.2d 263; Fries v. Shaughnessy, 159 Mont. 307, 310, 496 P.2d 1159. Further when the breach of 

### a statutory duty 

### is alleged, that duty required by statutemust be the efficient or proximate cause of the damages for negligence tobe predicated on the violation of the statute. Joki v. McBride, 150Mont. 378, 436 P.2d 78; Rauh 

### v. Jensen, 161Mont. 443, 445, 507 P.2d 520." Defendant has computed from testimony in the record concerning the point of impact and the respective speeds of the two vehi

### cles that he 

### was only about ninety-six feet away when plaintiff began turning onto Broadwater. Asplaintiff testified he had
a 

### clear 

### view tothe west of about one cityblock, defendant concludes plaintiff was negligent innot seeing him and in the alternative that if plaintiff did see defendant's automobile he
was negligent in turning onto Broadwater inthe face of obvious danger. On the other hand, plaintiff testified he stopped atthe intersection, looked to thewest, and did not 

### see defendant's automobile. In Jessen v. O'Daniel, 136Mont. 513, 523, 349 P.2d 107, 

### we said:" 

## * 

## * * A motorist isnot required to look for 

### milesup a road inorder toascertain that there areno vehicles approaching. Allthat is required of him is that he look sufficiently far tobe sure that there areno approaching vehicles which, inthe mind of a reasonably prudent person, would be likely tocause an accident if he proceeded into the intersection." It isundisputed that defendant was driving in excess of the legal speed 

### limit, a factwhich plaintiff 

### was not bound to anticipate. Grabs 

### v. Missoula Cartage Co., Mont

# . I 545 P.2d 1079, 33 St.Rep. 154. Defendant also testified he did not see plaintiff's automobile until immediately before the collision. A favored driver cannot rely absolutely on his right-of-way; he must act reasonably and maintain a proper lookout. Flynn v. Helena Cab & Bus Co., 94 Mont. 204, 215, 21P.2d

In McGuire 

### v. Nelson, 167 Mont. 188, 195, 536 P.2d 768, 32 St.Rep. 600, we said: "Ithas long been held by this Court that the 

### lawdoes not favor directed verdicts and the evidence therefore

### willbe viewed inthe light most favorable toappellants, 

### as having proved what 

### it tends toprove. Johnson 

### v. Chicago, M. & St. P. R. Co., 71Mont. 390, 394, 230 P. 52. This Court has also long held that cases should not be withdrawn from a jury unless reasonable and fair-minded men could reach only one conclusion from the facts. In re Estate of Hall v. Milkovich, 158 Mont. 438, 492 P.2d 1388." The facts here do not dictate that plaintiff was contributorily negligent. Wecannot say defendant's automobile 

### was so close to the intersectionwhen plaintiff turned onto Broadwater asto create an immediate hazard as a matter of law. Whether plaintiff could reasonably expect tocomplete the turn safely was a question for the jury. The jury should also have been allowed todetermine whether plaintiff's actionswere the proximate cause of the collisionrather than defendant's excessive speed or his failure tokeep a proper lookout. Similarly, the directed verdict should not have been

### granted on the basis that plaintiff failed to prove a causal relationship between defendant's acts and the collision. The evidence was undisputed that: (1)defendant was driving in
excess of the legal speed limit; (2)

### he had been drinking prior to the collision; and (3) 

### he did not see plaintiff's automobile until immediately before the collision. When viewed in a light most favorable to plaintiff, this evidence is sufficient to enable a jury to reasonably find defendant's conductwas the proximate cause of the collision. The judgment is reversed and the cause is remanded for
a new trial.

We concur: f,- I



### Chief Justice 

### 'U

Justice