No. 84-42 

IN TEE SUPREME COURT OF THE STATE OF MONTANA 

1984 

SARAH GARZA, 

Petitioner and Respondent, 

-vsDENISE E. PEPPARD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable R. C. McDonough, Judge presiding. 

COUNSEL OF ilECORD: 

For Appellant: 

McIntee & Whisenand, Williston, North Dakota 

For Respondent : 

Phillip N. Carter, Sidney, Montana 

Submitted on Briefs: August 30, 1984 

Decided: October 16, 1984- 

Filed: OCT 1 :; 1984 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Defendant and appellant, Denise S. Peppa.rd appeals the 

October 26, 1983, order of the Seventh Judicial District 

Court of Montana, Richland County, granting plaintiff Sarah 

Garza's motion, for judgment notwithstanding the verdict on 

the issue of negligence and granting Garza a new trial on the 

issues of proximate cause and damages. We affirm the order 

of the District Court. 

Sarah Garza was a passenger in a car driven by her 

husband, Ascension Ga.rza, when it wa.s rearended by a truck 

driven by Denise Peppard on January 24, 1981. Both vehicles 

were proceeding north in a no passing zone on Fairview 

Highway. As the Garza vehicle was turning right off the main 

highway and onto the Garza's private road., the right front 

portion of the Peppard vehicle struck the left rear portion 

of the Garza vehicle. The Peppard vehicle was travelling 

less than ten miles per hour at the time of the collision. 

Sarah Garza filed suit against Peppard May 18, 1982, for 

damages from injuries she allegedly received as a result of 

that accident. A jury trial was held September 26 through 

September 28, 1983. Testimony relevant to this appeal was 

taken from the investigating highway patrol officer, James 

Matthew Kinsey, the driver of both vehicles and plaintiff. 

At the close of the evidence, plaintiff's attorney moved for 

a directed verdict. The motion was denied, and the case 

given to the jury, which found no negligence on the part of 

defendant. Subsequently, Garza filed her motion for judgment 

notwithstanding the verdict. That motion was granted October 

26, 1983. 

Appellant filed a notice of appeal on November 29, 1983. 

The Clerk of the Supreme Court received the case record on 

January 20, 1984, twelve days after the forty-day deadline 

for transferral of record. See Rule 10 (c) , M.R.App.Civ. P. 
Pertinent portions of the transcript were omitted from the 

record. Specifically, there was no transcription of Garza's 

attorney's motion for a directed verdict nor of his motion in 

limine to prohibit any reference to the theory of unavoidable 

accident. For these reasons, Garza filed a motion to dismiss 

the appeal on April 18, 1984. We summarily denied the motion 

April 19, 1984, and Garza provided this Court with the 

missing portions of transcript. 

We reaffirm our order denying respondent's motion for 

dismissal. An appeal need n.ot he automatically dismissed in 

every instance where the Rules of Appellate Civil Procedure 

have not been strictly followed. Only failure to timely file 

the notice of appeal affects the validity of the appeal. 

Other procedural violations are grounds only for such action 

as we deem appropriate. Yetter v. Kennedy (19771, 175 Monte 

The violations caused no substantive harm. There is no 

evidence of any intention on the part of Peppard to mislead 

this Court by failing to submit all. relevant portions of 

transcript. Dismissal of this appeal is not appropriate. 

The sole remaining issue is whether the trial court 

erred in granting Garza's motion for judgment notwithstanding 

the verdict. We find no error as Denise Peppard is guilty of 

negligence as a matter of law for failing to keep a proper 

"Under Montana law, a motorist has a duty to look 

not only straight ahead but laterally ahead as well 

and to see that which is in plain sight. 

Furthermore, a motorist is presumed to see that 

which he could see by looking, and he will not be 

permitted to escape the penalty of his negligence 

by saying that he did not see that which was in 

plain view. Nissen v. Johnson (1959), 135 Mont. 

329, 333, 339 P.2d 651, 653; 

(1955), 129 Mont. 29, 281 P.2d 1028; Koppang - v. 

Sevier (1938), 106 Mont. 79, 75 P.2d 790. 

"Clearly, a person is negligent in either not 

looking or looking but not seeing if he claims not 

to have seen an object which is so clearly visible 
that all reasonable minds would agree the person 

must see the object if he were to look with 

reasonable diligence. " Payne v. Sorenson (1979) , 183 Nont. 323, 326-327, 599 P.2d 362, 364. 

The evidence is undisputed that the view of the turn-off 

from Fairview Highway onto Garza's private road is 

unobstructed from the south for 900 feet, the direction from 

which both vehicles were coming. Officer Kinsey testified 

that skid marks indicating the application of brakes by 

Peppard did not start until 168 feet south of the Garza 

drive. Peppard herself testified that she did not notice the 

Garza vehicle slowi-ng until she was practically upon it. The 

road was dry and the weather clear and sunny. No 

contributory negligence on the part of Ascension Garza or a 

third individual was alleged or proved. The only reasonable 

conclusion is that Peppard failed to keep a proper lookout. 

Kudrna v. Comet Corporation (1.977), 175 Mont. 29, 572 P.2d 

183. 

This cause is remanded to the District Court for trial 

on the issues of proximate cause-a-n,d damages. 

We concur: