Willis v. St. Peter's Hospital , 157 Mont. 417 ( 1971 )

MR. CHIEF JUSTICE JAMES T. HARRISON,

(dissenting):

I dissent.

I do not believe the district court was in error in granting the motion for a directed verdict at the .conclusion of plaintiff’s case.

Much is said in the majority opinion about the weather conditions in Helena on January 23, 1969, and there is no dispute in that respect. But of all the people who would be familiar with the weather conditions on that morning certainly a police officer in a patrol car, whose duties require that he be available at all times to carry out matters concerned with the public health and safety, would be one. With his knowledge of the weather conditions, he was at the time of the unfortunate occurrence transporting an elderly woman from one hospital to another in extremely cold weather.

The majority distinguishes our holding in Luebeck and while I concede there is a difference in the fact situation here and in Luebeck, yet as the author states in regard to Luebeck: “* % * We relied on the fact the dangerous condition was ‘obvious’.”

How the conditions, existing in and around Helena on January 23, 1969, could have been more “obvious” than they were in this instance is beyond me, and particularly when the “observant” is a police officer, driving his patrol car in the course of his employment, engaged in an errand requiring great care for the safety of his elderly passenger.

I would affirm the judgment.