No. 13014 

IN THE SUPRLTVIE COURT OF THE STATE OF MONTANA 

19 75 

TYYRA J. ERICKSON and 

NILS G. ERICKSON, 

Plaintiffs and Appellant, 

LUELL J. PERRETT, 

Defendant and Respondent. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable E. Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Appellant : 

Boone, Karlberg & Haddon, Missoula, Montana 

Sam E. Haddon argued, Missoula, Montana 

For Respondent : 

Worden, Thane, Haines and Williams, Missoula, 

Montana 

Shelton C. Williams argued, Missoula, Montana 

i 

Filed: -I 

Submitted: November 5, 1975 

Decided: ;)h~~ 3 ibl 1 
7.k. .Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment for defendant entered 

in the district court, Missoula County. Plaintiffs seek review 

of a jury verdict for defendant in a personal injury and property 

damage action. T.lotions by plaintiffs pursuant to Montana Rule 

of Civil Procedure 50(b), for a new trial or in the alternative 

for judgment notwithstanding the verdict were denied. 

The instant case grew out of an automobile accident 

which occurred on December 4, 1972, near the intersection of 

Brooks Street and South Avenue in Missoula under extremely icy 

conditions. An automobile driven by defendant Luell J. Perrett 

collided with the rear of a car driven by plaintiff Nils G. 

Erickson in which his wife plaintiff Tyyra J. Erickson was riding. 

At the time of the collision plaintiff rick sons' vehicle 

was headed south on Brooks and was stopped in the right-hand 

traffic lane behind other stopped vehicles waiting for the traffic 

signal at the intersection of Brooks and South to turn from red 

to green. Defendant Perrett's car was also proceeding south on 

Brooks in the right-hand lane, attempting to turn left into the 

middle lane. After moving two-thirds of the way into the middle 

lane, defendant's vehicle turned back into the right lane because 

a panel truck had entered the middle lane in front of him. Even 

though defendant was traveling slowly, about ten miles per hour, 

the icy street conditions prevented him from stopping before he hit 

plaintiffs1 vehicle. Property damage to defendant's and plaintiffs' 

vehicles as a result of the accident was $78 and $94.84, respectively. 

Action was brought for property damage to plaintiffs1 

automobile; for medical and hospital expenses, lost wages, pain 

and suffering and general damages from injuries to plaintiff Mrs. 

Erickson; and for damages for lost employment to Mr. Erickson 

while he was caring for his wife. 
The matter came on for trial on November 25, 1974. 

plaintiffs' motion for a directed verdict at the close of the 

evidence was denied and the jury found for defendant on the 

issue of liability. Subsequently plaintiffs moved, pursuant to 

Rule 50(b), M.R.Civ.P., for a new trial or judgment notwithstanding 

the verdict. The district court denied plaintiffs' motions and 

they appeal. 

Presented for review is the correctness of the district 

court's rulings on plaintiffs' motions, as well as whether the 

evidence was sufficient to uphold the verdict. 

While the tests for directing judgment notwithstanding 

the verdict or a new trial are dissimilar, we consider the denial 

of both Rule 50(b) motions together, in view of the discretion 

granted to the district court and this Court by Rule 50(b). This 

discussion in 5A ~oore's Federal Practice Para. 50.11, p.2363, 

supports that discretion: 

"Rule 50 (b) provides for three possible dispositions 

of a motion made thereunder. If there is evidence to 

support the verdict, the trial court must enter judgment in accordance with the verdict; it cannot order 

a new trial. If the evidence is insufficient to permit 

a verdict to stand under the rigid tests heretofore 

described, the trial court is given a discretionary 

power either to order judgment for the moving party, to 

grant a new trial, or to order dismissal without prejudice under Rule 41. y: y: ik" 

Cases from the United States Supreme Court have held 

this discretion in Federal Rule 50 (b) , which ~ontana's rule is 

patterned after, also applies to review by appellate courts. 

Bryan v. United'States, 338 U.S. 552, 70 S.Ct. 317, 94 L ed 335, 

cited with approval in Neely v. Martin K. Eby Construction Co., 

386 U.S. 317, 322, 87 S.Ct. 1072, 18 L ed 2d 75. 

Appellants argue that there is insufficient evidence to 

support the verdict in view of the respondent's breach of duty 

established by these Montana statutes: 
Section 32-2144, R.C.M. 1947: 

"(a) 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, 

condition of brakes, 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 unreasonably endanger the life, limb, property, 

mother rights of a person entitled to the use of the 

street or highway. 

"(c) The driver of a vehicle shall, consistent with 

paragraph (a), drive at an appropriate reduced speed when 

approaching and crossing an intersection or railway grade 

crossing, when approaching and going around a curve, when 

approaching a hill crest, when traveling upon a narrow or 

winding roadway, and when a special hazard exists with 

respect to pedestrians or other 'traffic or by reason of 

weather or highway condition. I I 

Section 32-2153, R.C.M. 1947: 

"The following rules shall govern the overtaking and 

passing of vehicles proceeding in the same direction, 

subject to those limitations, exceptions, and special 

rules hereinafter stated: 

"(a) The driver of a vehicle overtaking another vehicle 

proceeding in the same direction shall pass to the left 

thereof at a safe distance and shall not again drive to 

the right side of the roadway until safely clear of the 

overtaken veh3.c le. 

"(b) Except when overtaking and passing on the right 

is permitted, the driver of an overtaken vehicle shall 

give way to the right in favor of the overtaking vehicle 

on audible signal and shall not increase the speed of 

his vehicle &ti1 completely passed by the ove;taking 

vehicle. I I 

Section 32-2159(a), R.C.M. 1947: 

"Whenever any roadway has been divided into two (2) or 

more clearly marked lanes for traffic the following 

rules in addition to all others consistent herewith shall 

apply 

"(a) A vehicle shall be driven as nearly as practicable 

entirely within a single lane and shall not be moved from 

such lane until the driver has first ascertained that 

such movement can be made with safety. I I 

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

"(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. I I 
Appellants argue breach of duty established by these 

statutes is conclusive as to the issue of negligence and could 

not be overlooked by a jury. Respondent submits that there is 

substantial evidence to support the jury verdict. However, we 

reverse the district court. 

We note that the mere happening of an accident is insufficient evidence of negligence. Flansberg v. Montana Power 

Co., 154 Iqont. 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. IJlcBri.de, 

150 Mont. 378, 436 P.2d 78; Rauh v. Jensa, 161 Mont. 443, 445, 507 

P.2d 520. 

In the instant case the above statutes do contemplate 

protection of drivers who are stopped waiting for traffic signals 

to change. ~espondent's unsuccessful attempt to change lanes 

and his failure to stop because of the icy road conditions involved 

breaches of the duties imposed by the statutes which led proximately 

to the accident. 

These Montana cases where the defendant claimed that a 

factor over which he lacked control excused his conduct--Custer 

Broadcasting Corp. v. Brewer, 163 Mont. 519, 518 P.2d 257 (swirling 

snow), Farris v. Clarlc, 158 Mont. 33, 487 P.2d 1307 (failure of 

power steering), and 14cDonough v. Smith, 86 Mont. 545, 284 P. 

542 (oncoming vehicle)---are applicable to the instant case. Thus 

through failure to control his vehicle negligence per se was 

established on the part of respondent which the jury could not 

overloolc, McNair v. Eerger, 92 Mont. 441, 15 P.2d 834; Burns v. 

Fisher, 132 Fiont. 26, 313 P.2d 1044; Williams v. E'laley, 150 Idont. 

261, 434 P.2d 398. 
Still respondent argues that there was a sufficient basis 

for the jury to find no negligence on his part because of the 

intervening negligence of a panel truclc which allegedly suddenly 

entered the middle lane in front of him. This mysterious panel 

truck, which could not be located nor its driver produced at 

trial, is also the basis for the injection of the doctrine of 

sudden emergency as support for the jury verdict. No sudden 

emergency instruction was given the jury in this case. Thus it 

was not the law of the case and reliance on it as support for the 

verdict is ill-founded. 

With regard to respondent's assertion of intervening 

negligence, we must find that there was sufficient evidence to 

establish that a new, independent, and unforeseeable cause produced 

the accident in order to affirm the jury verdict. Plize v. Roclcy 

Itfountain Bell Telephone Co., 35 Mont. 521, 532, 100 P. 971; 

Cowden et a1.v. Crippen, 101 Mont. 187, 206, 53 P.2d 98; 2 Restatement of Torts 2d, 55 440,442. 

In the instant case the evidence was not sufficient to 

establish such a superceding cause. Respondent was traveling on 

a busy, icy street, approaching a traffic signal where cars 

continually change lanes to get into the proper position for their 

intended direction of travel at the intersection. It was not 

shown to be unforeseeable that a car or truck would swerve in 

front of respondent as he was attempting to change lanes. Nor was 

this mysterious panel truck shown to be an independent cause of 

the accident given the.inability of respondent to stop his own 

vehicle on the icy street. Because there was insufficient proof 

of an intervening cause of the accident respondent must be held 

legally responsible for the established negligence. 

Only through application of the doctrine of sudden 

emergency could a jury in this case determine that the respondent 

was not liable for his conduct which proximately caused property 
damage. Since the jury was not instructed on sudden emergency, 

there was an insufficient legal basis for the verdict. Accordingly, 

it was error for the district court not to set aside the verdict 

and deny the Rule 50 (b) motions. 

Since we have set aside the district court's judgment 

because of the negligence established at trial, this Court, in 

the exercise of sound discretion provided for in Rule 50(b), 

M.R.Civ.P., must determine whether to direct judgment for appellants or to order a new trial. United States v. Weiler, 385 

F.2d 63, 66; Bryan v. United States, supra; Neely v. Martin I<. 

Eby Construction Co,, supra. 

This Court is of the opinion that a new trial in the 

instant case would better serve the ends of justice. Here, there 

is one appellant with a complex medical history dating from a 

time prior to the accident and existing at the time of the accident. For the jury to clearly comprehend the extent of the 

injuries and other damages resulting proximately from this accident, the complete case should be before it. 

Even though property damages were small, the proof of them 

was clear and not disputed. The substantial damages, if any, 

were related to the alleged injuries and the alleged consequential 

damages arising therefrom. Thus, for a jury to ignore both proof 

of negligence and proof of property damages arising therefrom 

necessitates a new trial. By the same token, for the jury to fully 

appreciate the entire alleged damage situation, a new trial rather 

than a directed verdict on the issue of liability only is required. 

Finally, in view of our decision to grant a new trial 

and respondent's assertion of the doctrine of sudden emergency, 

we feel further discussion of propriety of such an instruction 

in the instant case necessary. On review of the record we emphasize 

chat the district court properly refused the sudden emergency instruction. Such an instruction is not available to those whose 
negligence has produced the emergency. Peabody v. Northern Pacific 

itai.lway Co., 80 Mont. 492, 497,498, 261 P. 261; 2 Restatement of 

Torts 2d $296. It is also improper where the emergency is anticipated or foreseeable. Peabody v. Northern Pacific Railway Co. , supra. 

Foreseeability of emergencies on highways is discussed in Prosser 

on Torts, 4th ed. p. 170: 

"A further qualification 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 

or of other vehicles at intersections, just as 

one who sees a child on the curb may be required 

to anticipate its sudden dash into the street, and 

his failure to act properly when they appear may 

be found to amount to negligence." 

If the district court is presented a similar record on 

retrial, sudden emergency instructions should be refused. 

Judgment is reversed and the cause is remanded to the 

district court with orders to grant a new trial. 

Justice /y 
21:. Justice ''ra~ilc I-. ia~~eLi, J~s~e~~cir~g. 

I would affirm the judglilent based on ~11r jury veidl~i. 

Chis case involves an appeal from (1) an order denying 

~J-dzlc~irs a new trial, (2) an order denying entry of judgment 

~~irtwithstanding the verdict, and (3) the judgment. 

The district court's order denying plaintiffs ' motion 

izoi -i riew trial is clearly correct. The motion was defective in 

railing 110 state the grounds with particularity. Halsey v. Uithof, 

Nor are plaintiffs entitled to entry of judgment notw~~hsrdnding the verdict for the reasons stated in the majority 

 pinion. 

The majority concludes that the evidence is insufficient to 

juppurt the jury verdict because defendant's negligence is estabI-ished as a matter of law and failure of proof of intervening negligence on the part of the driver of the panel truck. In my 

view these are both jury questions decided adversely to plaintiffs. 

A jury could well conclude that the accident here was 

nirc caused by negligent driving. The evidence viewed in the light 

ruost favorable to the prevailing party shows that defendant was 

driving at a speed of ten miles an hour on an icy street and was 

able to stop the forward motion of his car without impact, but 

chat it slid or skidded sideways when the forward momentum ceased 

;iriking the rear of plaintiffs' car. 

Nor do I believe that proximate cause is established as 

i ndcier of law. This is patently a jury question resolved against 

plaintiffs. 

For the foregoing reasons, I dissent. 

Justice.