Haney v. Mutual Creamery Co. , 67 Mont. 278 ( 1923 )

MR. CHIEF COMMISSIONER FELT

prepared the opinion for the court.

The plaintiff in this action, brought by Mrs. Margaret Buckley, his guardian ad litem, recovered judgment in the court below against the defendant for personal injuries sustained in a collision between the plaintiff’s motorcycle and the defendant’s autotruck, driven by an employee. The plaintiff offered evidence in support of the allegations of the complaint. Both parties then rested. The defendant then moved the court to instruct the jury to return a verdict in favor of the defendant and against the plaintiff. This motion was denied. The cause was thereafter submitted to the jury and verdict rendered against the defendant in the sum of $750. Upon this verdict, judgment was duly entered. The defendant then moved for a new trial, which motion was overruled. The appeal is from the judgment.

The defendant seeks to obtain a reversal of the judgment upon two grounds: First, that the testimony offered by the plaintiff shows that the injury and damage sustained by him were due to his own contributing fault and negligence; second, that there is a fatal variance between the complaint and proof. ¥e will consider these in order.

The injury complained of occurred on Montana Street in the city of Butte on September 19, 1920. This street runs north and south. At the point in question it is about seventy-two feet in width and has a street-car track running in the same direction along its center. Immediately prior to his injury the plaintiff, being then a little past sixteen years of age, was riding a motorcycle, proceeding north, on the right-hand side of the street named: His motorcycle was equipped with a tandem seat, which was occupied at the time by two companions. As they were about a half block south of the Mutual Creamery Company’s plant they observed the truck coming out on to Montana Street from the south side of the creamery. It ci’ossed over to the right-hand side of the street and turned north ahead of the motorcycle, being then about thirty feet in advance. The truck was then traveling about eight miles an hour and the motorcycle about twelve or fourteen. The former proceeded parallel to and about five or six feet to the right of the street-car track. The plaintiff directed the course of his motorcycle in such a manner that he would pass to the left of the truck, between it and the streetcar track. "When about eighteen feet in rear of the truck he sounded three blasts on the Klaxon push-down horn, with which his motorcycle was equipped. The third blast was sounded as the front of the motorcycle was about even with the l’ear of the truck, which just at that instant, without any warning by extending the arm or otherwise, suddenly turned to the left directly in the path of the plaintiff. The latter applied his brake, but was unable to avoid a collision. The handle-bars of the motorcycle came in contact with the left rear fender of the truck. The plaintiff was thereby thrown across the street-ear track and received the injuries forming the basis of his action.

The plaintiff seeks to establish liability by showing compliance with the statutory traffic regulations on his own part and a failure to observe the same on the part of the defendant. These are contained in subdivisions 1 and 2 of section 1743 of.the Revised Codes of 1921. We will quote only the portions of each that apply to this case. The first prescribes the duty which was on the plaintiff at the time, and is> as follows: “Traffic must everywhere and at all times keep to the right. Vehicles moving in opposite directions must pass each other by turning to the right. Vehicles moving in the same direction must pass by turning to the left on the part of the one passing, and turning to the right on the part of the one being passed.” The second prescribes the duty of defendant before turning to the left: ‘ ‘ The operator or driver of any vehicle desiring for any reason, either at or between street crossings, to turn to the left, must warn all following by extending his arm full from the shoulder for a period of not less than two seconds, and sufficiently in advance of turning to enable anyone following to stop or make the necessary change in course.”

The defendant did not plead contributory negligence, and offered no evidence to prove that or any other fact in the case. However, it is contended that the plaintiff’s own ease presents evidence which makes out prima facie contributory negligence to such an extent that, in the absence of further evidence exculpating him, he cannot recover. That such may be the law in a proper case has been held by this court in Harrington v. Butte A. & P. Ry. Co., 37 Mont. 169, 16 L. R. A. (n. s.) 395, 95 Pac. 8, and in numerous other eases. It is conceded that plaintiff was sui juris and capable of contributory negligence. However, it is a rare case that the acts of the plaintiff may be held by the court to constitute contributory negligence as a matter of law. The facts must be such that reasonable men can reach no other conclusion than that the plaintiff’s negligence was the proximate cause of the injury. “As a general rule, the issue of negligence and contributory negligence must be decided by the jury under appropriate instructions.” (Puckett v. Sherman & Reed, 62 Mont. 395, 205 Pac. 250.)

In this case the plaintiff was where he had a right to be at the time of the injury. He had a right to assume that the defendant would not turn to the left without giving the warning that the statute requires. He allowed sufficient room to pass to the left of the truck. He could have allowed more room. Bnt it was not negligence for him to expect the defendant to observe the law and allow only sufficient room to pass. The evidence did not show that the plaintiff had time to have stopped or changed his course so as to avoid the injury after the defendant began to make the turn. Hence the case is not controlled by the rule announced in Casey v. Northern Pac. Ry. Co., 60 Mont. 56, 198 Pac. 141, or Keith v. Great Northern Ry. Co., 60 Mont. 505, 199 Pac. 718. The ease was properly submitted to the jury, and their verdict is conclusive.

The appellant contends that there was a fatal variance between the proof and the following allegations of the complaint: ‘ ‘ The said defendant, through its agent and servant aforesaid, negligently and carelessly turned the said truck of defendant in a northwesterly direction without warning plaintiff of his intention so to do and did thereby carelessly and negligently and violently run said truck into and against the motorcycle then being operated by plaintiff, with the result that plaintiff and said motorcycle were hurled to the ground, receiving injuries hereinafter complained of.”

The contention is made that the proof showed that the motorcycle ran into the truck, 'and not the truck into the motorcycle, as alleged. We doubt whether anyone could have told exactly how the contact was made. The plaintiff and his companions testified that the truck ran into the motorcycle. We cannot say that, as a matter of law, the testimony of these witnesses- was contradicted by the physical facts proved. The evidence was sufficient to sustain the allegations of the complaint.

We recommend that the judgment be affirmed.

Per Curiam: : For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.

Affirmed.