Nissen v. Johnson ( 1959 )

THE HONORABLE VICTOR H. FALL, District Judge

(sitting in place of MR. JUSTICE ANGSTMAN):

The subject matter of the action here involved is a claim for damages brought by plaintiff’s guardian ad litem for injuries received by the ward, Christine Nissen, a minor, who on the date of the accident, April 24, 1955, was five years of age. The injuries were the result of her being struck by an automobile driven by the defendant along Tenth Street in the City of Havre, Montana. The evidence discloses that the plaintiff, Christine Nissen, was standing along the edge of Tenth Street, across from, a playground, as the defendant was driving his car in a westerly direction and as he approached the place where the little girl was standing, she ran across the road in front of- him with the result that she was struck and injured. The appeal is by the plaintiff from a judgment in favor of the defendant entered after sustaining defendant’s motion for nonsuit made at the conclusion of the plaintiff’s case.

The only negligence charged against the defendant was that he, “John S. Johnson carelessly, negligently, unlawfully, recklessly and at an excessive rate of speed, drove, managed and operated his automobile to-wit # * The sole question before the court is whether a prima facie case was made out on behalf of plaintiff against the defendant on this one charge of negligence..

The statutes in Montana, in force at the time of the áceident, relating to speed were as follows:

Section 32-1101. “Speed regulations. Every person operating or driving a vehicle of any character on a public highway of this state shall drive the same 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 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 so as not to unduly or unreasonably endanger the life, limb, property, or other rights of any person entitled to the use of the street or highway; provided, however, that cities and towns may, by ordinance, regulate speed and traffic upon the streets within the incorporated limits.” and

Seetion 31-107. ‘ ‘ Speed limits — establishment of speed zones and penalties. No person shall drive a motor vehicle on a public highway of this state at. a speed greater or less than is reasonable and prudent to conditions then existing.”

The former section was amended by the enactment of Chapter 263 of the Laws of 1955, which became effective July 1 of that year and hence our present statute was not in effect at the time of the accident. However, in this connection it should be pointed out that the opening paragraph of seetion 41, Chapter 263 of .the Laws of 1955, at page 639, now section 32-2144, the present statute, is identical with the opening paragraph of section 32-1101, quoted above, so that insofar as this appeal is concerned we are confronted with the same statutory law.

It will be seen from an examination of the foregoing statutes that the actual.miles per hour a person is driving is not, determinative of whether the motorist is negligent, but rather the question is one of fact as to whether he was driving as a reasonable and prudent person would drive under the conditions existing and with a due regard for the “life, limb,-property, and other rights of any person” entitled to the use of the highway.

,The evidence introduced at the trial was rather brief. From the record made, we learn that about 4:30 p.m., April 24, 1955, the defendant, a locomotive engineer, was driving his 1951 DeSoto automobile westerly on Tenth street in Havre, Montana. Tenth street, in the area surrounding the scene of the accident, passes through “prairie” and “there’s nothing to mar the view of a person driving an automobile up that highway. There’s no obstruction at all.” The defendant, when testifying, stated, among other things, “I could see the highway plainly,” and “when I was approaching I had a clear view.” The defendant’s ear was in good condition and he stated “the brakes were perfect.” He was not “speeding” in the ordinary sense of the word. He saw the little girl standing by the south side of the highway when he was “maybe 100 or 150 feet” away. At that time he thinks he was driving about 22 miles per hour. Upon observing the little girl he “did slow down from the speed I was going at that time.” She ran across the highway in front of him, and the defendant was unable to stop in time to avoid striking her. The car left “quite visible” skid marks which measured 29 feet. Immediately to the north, across the highway from where the defendant first saw the little girl, is a playground. As a result of being struck the child suffered a fractured femur and multiple bruises. The femur break proved to be rather serious, necessitating an operation; and she was in the hospital some 25 days. However, there was’ complete recovery and no residual disability was either claimed or proved. The doctor bill amounted to $375, and the hospital bill was $428.75.

It is recognized that the mere fact that the defendant’s auto-mobile struck and injured the little girl .does not of itself show negligence or contributory negligence. Johnson v. Herring, 89 Mont. 420, 300 Pac. 535; Autio v. Miller, 92 Mont. 150, 11 Pac. (2d) 1039; Cowden v. Crippen, 101 Mont. 187, 53 Pac. (2d) 98.

It is the law in Montana that a person is presumed to see that which he could see by looking. Autio v. Miller, supra. Further, it is the duty of a motorist to look not only straight ahead but laterally ahead and to keep a lookout and see that which is in plain sight. Johnson v. Herring, supra; West v. Wilson, 90 Mont. 522, 4 Pac. (2d) 469; Autio v. Miller, supra; McNair v. Berger, 92 Mont. 441, 15 Pac. (2d) 834; Marinkovich v. Tierney, 93 Mont. 72, 17 Pac. (2d) 93; Sorrells v. Ryan, 129 Mont. 29, 281 Pac. (2d) 1028.

If a motorist does not keep a proper lookout a jury may find that he was negligent.

No case should be taken from a jury on a motion for non- suit where there is substantial evidence to support the complaint but only where from the undisputed facts it appears as a matter of law that recovery cannot be had on any reasonable view of the established facts. This rule of law is established in Montana and some of the cases supporting it are: Cain v. Gold Mountain Mining Co., 27 Mont. 529, 71 Pac. 1004; Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; Conway v. Monidah Trust, 52 Mont. 244, 157 Pac. 178; McIntyre v. Northern Pac. R. Co., 56 Mont. 43, 180 Pac. 971; Stevens v. Hines, 63 Mont. 94, 206 Pac. 441; Johnson v. Herring, supra; Autio v. Miller, supra; Miller Ins. Agency v. Home Fire etc., Ins. Co., 100 Mont. 551, 51 Pac. (2d) 628; Wilcox v. Smith, 103 Mont. 182, 62 Pac. (2d) 237; Lewis v. New York Life Ins. Co., 113 Mont. 151, 124 Pac. (2d) 579; Hage v. Orton, 119 Mont. 419, 175 Pac. (2d) 174; Donathan v. McConnell, 121 Mont. 230, 193 Pac. (2d) 819.

From the record made here the jury might have concluded that the defendant was negligent in not having his car under such control that he could have stopped in time to avoid striking the little girl. He saw her alongside a highway across from a playground toward which she may well have been going. He saw her in sufficient time that, according to the testimony, he could have stopped his ear without difficulty and without leaving any skid marks. Whether under the circumstances present the- defendant was negligent appears to be a fact question. and fact questions must be submitted to' a jury under appropriate instructions. Nothing herein said is.to be construed as any indication that this court feels that plaintiff, herein should recover damages, and a jury may well, absolve the defendant from any liability but it does appear that plaintiff is entitled to have his case go to a jury.

The judgment is reversed and a new trial granted.

MR. JUSTICES ADAIR and BOTTOMLY, concur.