No. 12994 

IN THE 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 

Dec ided : fi c i : 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 the district court granting defendant Kenneth 

Edmonds' motion for a directed verdict. Plaintiff was injured 

when his automobile was struck by another automobile driven by 

defendant. Plaintiff's subsequent negligence action against 

defendant was tried in January 1975 before a jury in Yellowstone 

County. At the close of plaintiff's case in chief, 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 district court granted defendant's 

motion. After careful examination of the record, we hold the 

district court should have allowed the case to go to the jury. 

The collision occurred in the early morning hours at 

the intersection of Sixth Street West and Broadwater Avenue 

in Billings, Montana. At that point Broadwater was a four lane 

through street and there was a stop sign on Sixth. The posted 

speed limit was twenty-five miles per hour. The street was dry, 

the weather was clear, and the intersection was lit by a street 

light on the corner. 

Plaintiff testified at the trial that he approached 

Broadwater from the south, stopped at the stop sign on Sixth, 

and looked in both directions for traffic. He said he was 

turning right onto Broadwater when he was hit from behind by 

defendant's automobile which was proceeding east on Broadwater 

in the far right hand lane. Plaintiff conceded he had a clear 

view to the west of about one city block when stopped at the 

intersection, but maintained he never saw defendant's automobile. Defendant testified he was driving about thirty miles 

per hour and saw plaintiff's automobile only a second before 
the collision. 

Defendant argues plaintiff violated the right-of-way 

rule established by section 32-2172, R.C.M. 1947, and was contributorily negligent as a matter of law by entering Broadwater when defendant's automobile was so close as to constitute 

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 in Erickson 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 

statute must be the efficient or proximate 

cause of the damages for negligence to be 

predicated on the violation of the statute. 

Joki v. McBride, 150 Mont. 378, 436 P.2d 78; 

Rauh v. Jensen, 161 Mont. 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 vehicles that he was only about ninety-six feet away when plaintiff 

began turning onto Broadwater. As plaintiff testified he had 

a clear view to the west of about one city block, defendant 

concludes plaintiff was negligent in not seeing him and in the 

alternative that if plaintiff did see defendant's automobile he 

was negligent in turning onto Broadwater in the face of obvious 

danger. 

On the other hand, plaintiff testified he stopped at the 

intersection, looked to the west, and did not see defendant's 

automobile. In Jessen v. O'Daniel, 136 Mont. 513, 523, 349 

P.2d 107, we said: 
" * * * A motorist is not required to look for 

miles up a road in order to ascertain that there 

are no vehicles approaching. All that is required 

of him is that he look sufficiently far to be 

sure that there are no approaching vehicles which, 

in the mind of a reasonably prudent person, would 

be likely to cause an accident if he proceeded 

into the intersection." 

It is undisputed that defendant was driving in excess of the 

legal speed limit, a fact which 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, 21 P.2d 

In McGuire v. Nelson, 167 Mont. 188, 195, 536 P.2d 768, 

32 St.Rep. 600, we said: 

"It has long been held by this Court that the 

law does not favor directed verdicts and the 

evidence therefore will be viewed in the light 

most favorable to appellants, as having proved 

what it tends to prove. Johnson v. Chicago, 

M. & St. P. R. Co., 71 Mont. 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. We cannot say defendant's automobile was so close to 

the intersection when plaintiff turned onto Broadwater as to 

create an immediate hazard as a matter of law. Whether plaintiff 

could reasonably expect to complete the turn safely was a question 

for the jury. The jury should also have been allowed to determine whether plaintiff's actions were the proximate cause of the 

collision rather than defendant's excessive speed or his failure 

to keep 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 conduct was 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