McNair v. Berger

Appellant contends that respondent's own testimony discloses that he himself was guilty of negligence contributing to his injury by riding with appellant when he knew, or should have known, that the latter was under the influence of intoxicating liquor. Text-writers and the decisions of the courts are uniform in their declaration that one may not close his eyes to conditions which must have been manifest to an ordinarily careful and prudent person, but assumes the hazard of riding with one under the influence of intoxicating liquors and, having received injury, will not be allowed to recover. (Huddy on Automobiles, 8th ed., sec. 827; Blashfield's Cyc. of Auto Law, p. 1089; Blakemoor on Motor Cars, p. 1206; Berry on Automobiles, 4th ed., p. 549; Lynn v. Goodwin, 170 Cal. 112, L.R.A. 1915E, 588,148 P. 927; McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508;Shiflett's Admx. v. Virginia Ry. Power Co., 136 Va. 72,116 S.E. 500; Hemington v. Hemington, 221 Mich. 206,190 N.W. 683; Winston's Admr. v. City of Henderson, 179 Ky. 220,200 S.W. 330; Franco v. Vakares, 35 Ariz. 309, 277 P. 812;Wayson v. Rainier Taxi Co., 136 Wash. 274, 45 A.L.R. 290, 239 P. 559; Jones v. Pacific G. E. Co., 104 Cal. App. 47, 285 P. 709.)

The court erred in receiving evidence over appellant's objection as to the cost of an annuity for respondent and in giving instructions with reference to the subject of annuity costs. Appellant does not assume to claim that if an annuity table book has been shown to be of that "standard" quality which is characteristic of the American Table of Mortality, and of other recognized publications, the contents of which have been compiled as the result of computations and calculations of actuaries and which are shown to be generally accepted as authentic, evidence may not properly be given as to such results. The objection is that neither the witness Miller nor the book itself furnished any evidence that its contents were of such a character. (See 7 Encyclopedia of Evidence, p. 429; Bourke v.Butte Electric Power Co., 33 Mont. 267, 83 P. 470;Robinson v. Helena Light Ry. Co., 38 Mont. 222,99 P. 837; Moyse v. Northern P. Ry. Co., 41 Mont. 272,108 P. 1062; Cornell v. Great Northern Ry. Co., 57 Mont. 177,187 P. 902.)

That the evidence should have been excluded, under the testimony of Miller showing utter ignorance of the subject, is held by the cases of Banks v. Braman, 195 Mass. 97,80 N.E. 799, and McKenna v. Citizens Natural Gas Co., 198 Pa. 31,47 A. 990.)

Appellant's objection to the two photographs introduced in evidence was that they failed to disclose sufficient identity of conditions existing at the time of the accident to justify their introduction; that they did not tend to prove any matter material to the issues and that their effect would be to mislead and deceive the jury. Respondent's counsel stated that they would be "connected up later." Immediately after being received in evidence, and without any further testimony being introduced to connect them up, the pictures were exhibited to the jury over appellant's objection.

There is no question, of course, but that photographs, under proper circumstances, are admissible in evidence. "It cannot be questioned that a photograph is competent evidence to prove a condition which can be shown by a representation of that sort. (State v. Jones, 48 Mont. 505, 139 P. 441; Wigmore on Evidence, sec. 790.) It stands upon the same footing as a map, plan or model and, when shown by a competent witness to be correct, furnishes evidence of a high order of accuracy." (Stokes v. Long, 52 Mont. 470, 159 P. 28.)

However, "frequently photographs have been held inadmissible on the ground that they were taken at too remote a time and when conditions had changed. And in some cases where in view of the other evidence they seemed unnecessary or likely to give a wrong impression or to create undue sympathy or prejudice on the part of a jury." (Jones on Evidence, sec. 581.)

Appellant's objection to these photographs is predicated upon the claim that as this accident happened on a dark night the conditions which formed a part of the res gestae cannot "be shown by a representation of that sort," and that they were "likely to give a wrong impression" to the jury. Pictures taken in the daytime could never be of any aid to a jury in determining what the driver of an automobile at night could see with the aid of headlights.

If it be assumed that the evidence dealing with the question of proximate cause permits an inference that respondent's charge of negligence in the matter of high speed has been sufficiently established, yet this is not enough. Respondent's evidence must have disclosed, by a preponderance thereof, that this high speed was a proximate cause of the collision. Tested by the rules announced in Lundeen v. Livingston Electric Light Co.,17 Mont. 32, 41 P. 995, Mize v. Rocky Mountain Bell Tel. Co.,38 Mont. 521, 129 Am. St. Rep. 659, 16 Ann. Cas. 1189, 100 P. 971, and Burns v. Eminger, 84 Mont. 397, 276 P. 437, appellant insists that the speed at which he was driving cannot be fairly said to have been a or the proximate cause of the collision. His conduct was to be measured by the circumstances which confronted him as he drove along the highway. (Hornbeck v. Richards, 80 Mont. 27,257 P. 1025.) He was traveling, late at night, upon a fairly wide, paved highway, whereon there was but little traffic. Such traffic as he encountered was handled in an approved fashion. He had a right to assume that others using the highway would do so in a lawful fashion and in accordance with rules of the road and the statutes of the state of Montana (secs. 1743 and 1744, Rev. Codes 1921, as amended by Chap. 80, Laws 1927); he had a right to assume that they would be parked as far to the right as road conditions permitted, that traffic or vehicles in the direction of his travel would have a red light or tail-light exposed to view, that if and when he observed automobile headlights, such headlights indicated the approach of an automobile from an opposite direction to his line of travel on its proper side of the highway, or at least to assume that it was stationed upon its proper side of the highway. Such is the mandate of our statutes. (Sec. 1743, Rev. Codes 1921, as amended by Chap. 80, Laws 1927.)

Furthermore, the evidence is entirely lacking in proof, under the circumstances shown in this case, that if Berger had been traveling at any lesser rate of speed that might be admitted to be reasonable, the collision could have been avoided. In the case of Stroud v. Chicago etc. Ry. Co., 75 Mont. 384,243 P. 1089, this court had occasion to consider the question of proximate cause, when it was conceded that the defendant was chargeable with negligence because of failure to give statutory whistle signals of the approach of its train to a crossing. So much is therein said applicable to the situation of this case that its review by this court is respectfully urged.

However, if appellant be held wrong in his contention that his motion for a directed verdict should have been sustained, he asserts with renewed assurance that the court erred in giving its instruction No. 5 to the jury and in refusing instruction K as tendered by appellant. (See opinion.) Appellant complains of the instruction given on proximate cause upon the ground that it is peremptory and leaves out of consideration the matter of contributory negligence. Even should this be the effect of the instruction, the fact is that there was no evidence whatsoever of contributory negligence. That there is nothing to appellant's contention is shown by the fact that the instructions tendered by him upon contributory negligence were given and the jury were fully instructed in that regard by instructions Nos. 15 and 16, in which they are informed that if plaintiff was guilty of contributory negligence, their verdict must be for the defendant.

In this connection we would call the attention of the court to the fact that the exact wording of the instruction on proximate cause as given by the court in this case has been used by the supreme court of this state in defining proximate cause in the following cases: Kirby v. Oregon Short Line Ry. Co., 59 Mont. 425,197 P. 254; Wallace v. Chicago, M. St. P. P. Ry.Co., 48 Mont. 427, 138 P. 499; Mize v. Rocky Mountain BellTel. Co., 38 Mont. 521, 100 P. 971; McCloskey v. City ofButte, 78 Mont. 180, 253 P. 267; Stroud v. Chicago etc. Ry.Co., 75 Mont. 384, 243 P. 1089. Instruction (K) proposed by the defendant and rejected (see opinion) was a long involved affair which it is impossible for a person of ordinary understanding to comprehend.

There is a special duty imposed upon one driving an automobile in the night-time, and that is to operate his car at such a rate of speed that it may be brought to a stop within the distance in which objects may be disclosed by the rays of his headlights. Violation of this duty constitutes negligence as a matter of law. With reference to the duty of the defendant so to drive as to permit the timely discovery of any obstruction, see Phillips v.Davis, 3 F.2d 798, 799; Serfas v. Lehigh N.E.R. Co.,270 Pa. 306, 14 A.L.R. 791, 113 A. 370; Lauson v. Town of Fond Du Lac,141 Wis. 57, 135 Am. St. Rep. 30, 25 L.R.A. (n.s.) 40, 123 N.W. 629, 630;Fisher v. O'Brien, 99 Kan. 621, L.R.A. 1917F, 610, 162 P. 317. In the following cases it has been held that violation of this duty constitutes negligence "as a matter of law":Knoxville, etc., v. Vangilder, 132 Tenn. 487, L.R.A. 1916A, 1111, 178 S.W. 1117; Pietsch v. McCarthy, 159 Wis. 251,150 N.W. 482; Solomon v. Duncan, 194 Mo. App. 517, 185 S.W. 1141;O'Brien v. Alston, 61 Utah, 368, 213 P. 791; WestConstruction Co. v. White, 130 Tenn. 520, 172 S.W. 301;Haines v. Carroll, 126 Kan. 408, 267 P. 986; Ruth v.Vroom, 245 Mich. 88, 62 A.L.R. 1528, 222 N.W. 155; Clark v.Lawrence Baking Co., 240 Mich. 352, 215 N.W. 337; Hinchey v.J.P. Burroughs Son, 240 Mich. 273, 215 N.W. 346; Lett v.Summerfield Hecht, 239 Mich. 699, 214 N.W. 939; Frazier v.Hull, 157 Miss. 303, 127 So. 775; Roth v. Blomquist,117 Neb. 444, 58 A.L.R. 1473, 220 N.W. 572; Kliest v. Cohodas,195 Wis. 637, 219 N.W. 366.

When a motor vehicle is standing on the side of a highway, and there is ample room, as in this case, to pass without colliding with it, it is negligence, as a matter of law to drive into it. (3-4 Huddy's Cyclopedia of Automobile Law, p. 111; Collins v.Marsh, 176 Cal. 639, 169 P. 389; Mitchell v. Kramer, 211 Ill. App.? 563; Collins v. McMullin, 225 Ill. App. 430;Schevers v. American Ry. Exp. Co., 195 Iowa, 423,192 N.W. 255; Griffin v. McNeil, 198 Iowa, 1359, 201 N.W. 78; Odom v. Schmidt, 52 La. Ann. 2129, 28 So. 350 (which is a case of the horse and buggy days, shows that the rule herein invoked is older than the automobile); Woolner v. Perry, 265 Mass. 74,163 N.E. 750; Ruth v. Vroom, 245 Mich. 88, 62 A.L.R. 1528,222 N.W. 155; Bielecki v. United Trucking Service, 247 Mich. 661,226 N.W. 675; Denson v. McDonald Bros., 144 Minn. 252,175 N.W. 108; Albertson v. Ansbacher, 102 Misc. Rep. 527,169 N Y Supp. 188; Baum v. American Ry. Exp. Co., 177 N.Y. Supp. 156; Backus v. Severn, 224 A.D. 72, 229 N.Y. Supp. 376;Smoak v. Martin, 108 S.C. 472, 94 S.E. 869; Reincke v.Tacoma Ry. Power Co., 138 Wash. 304, 244 P. 577; Bergenthal v. StateGarage Trucking Co., 179 Wis. 42, 190 N.W. 901; Bauhofer v.Crawford, 16 Cal. App. 676, 117 P. 931; Johnson v.Herring, 89 Mont. 420, 300 P. 535; Billingsley v.McCormick Transfer Co., 58 N.D. 913, 228 N.W. 424.)

Appellant urges most earnestly that he was intoxicated at the time of leaving the Country Club, and that respondent knew it and was therefore guilty of contributory negligence in getting into the car. He urges that no other explanation can be found for appellant's conduct than that he was intoxicated. He cites numerous cases purporting to support his contention that a nonsuit or directed verdict should have been granted because of appellant's intoxication and respondent's knowledge thereof. We respectfully submit that an examination of these cases will disclose that even actual intoxication and knowledge thereof merely make a question for a jury as to whether the guest exercised reasonable care in entering and remaining in the automobile under such circumstances. In Fitzpatrick v.Cinitis, 107 Conn. 91, 139 A. 639, at 641, it is said: "A guest or a gratuitous passenger, however, is not negligent in riding with an intoxicated driver or one under the influence of intoxicating liquors, if he was unaware of such intoxication, and no fact had been noticed by him which would arouse the suspicions of one of ordinary prudence in relation thereto." (See 5-6 Huddy's Cyclopedia of Automobile Law, p. 261; Powell v.Berry, 143 Ga. 59, 84 S.E. 121.)

Admissibility of evidence relative to annuity and mortality tables: See Stevens v. Elliott, 36 Mont. 92; Lincoln v.Power, 151 U.S. 436, 38 L. Ed. 224, 14 Sup. Ct. Rep. 387;Nelson v. Bradford Lighting Water Co., 75 Conn. 548,54 A. 303; Southern P. Co. v. Devalle Da Costa, 190 Fed. 689, 111 C.C.A. 417; Scheffler v. Minneapolis St. L.R. Co.,32 Minn. 518, 21 N.W. 711; Marshall v. Marshall, 252 Ill. 568,96 N.E. 907; Borland v. Pacific Meat Packing Co.,153 Wash. 14, 279 P. 94. Independently of the knowledge of witness Miller as to how the various elements would enter into the making up of the cost of an annuity, this testimony was admissible under the principle of the admissibility of standard price lists, etc. This rule is laid down in Wigmore on Evidence, section 1704.

As to admissibility of photographs in evidence, see 22 C.J. 920. "Whether a photograph is sufficiently verified as a proper representation, and whether it is practically instructive, are preliminary questions to be determined by the judge presiding at the trial, who is invested with considerable discretion in determining as to the admissibility of the evidence, and whose action in the premises will not ordinarily be reviewed by an appellate court." (Id., p. 921.) Plaintiff sustained injuries on July 29, 1928, as the result of a Buick automobile, in which he was riding, being driven by the defendant into another automobile used as a wrecker, standing on the main highway between Butte and Anaconda. He brought this action to recover damages. The jury awarded him $30,000, for which judgment was entered. Defendant's motion for new trial was denied and he appealed from the judgment.

The complaint charges negligence on the part of defendant in driving at an excessive rate of speed, in failing to have the automobile under control, and in running it into and against the wrecker when there was ample room to pass by it in safety. The answer admits the collision and that as a result plaintiff sustained injuries, but otherwise amounts to a general denial. As an affirmative defense it pleads contributory negligence on the part of plaintiff. The affirmative allegations of the answer were put in issue by the reply.

The evidence, omitting unimportant details, discloses that plaintiff, defendant and Neill Wilson, upon invitation, together attended a dance at the Anaconda Country Club on the night of July 28, leaving there after midnight to return to Butte. Plaintiff was then twenty-five years of age. Plaintiff and Wilson had been schoolmates, but defendant was a stranger to plaintiff. In the evening of July 28 the three met in Butte and it was decided that they would go to the dance in defendant's car. Defendant had one or two drinks at a "soft-drink parlor" in Butte before they left for the dance, but plaintiff did not know what the drinks consisted of. He himself had no drinks. On the way to the dance, and before reaching Gregson Springs, defendant and Wilson drank from a small container which plaintiff guessed was a whisky bottle. They stopped at Gregson Springs before proceeding to the dance, where they engaged in gambling, and defendant and Wilson had some drinks there but plaintiff did not know whether it was intoxicating liquor or not. From there they went to the Anaconda Country Club. Defendant drove the car and did so at a reasonable speed and in a careful manner. There was evidence that plaintiff was reasonably assured that defendant had something to drink while at the Country Club but not to the extent that it had any effect on him, judging from his actions.

Before leaving the Country Club plaintiff, who said he was always nervous when riding in cars, and because he thought that defendant had some drinks, told Wilson to ask defendant if he wanted plaintiff to drive home. Wilson, instead, asked defendant if he, Wilson, should drive, and defendant replied that he could drive all right. Plaintiff, before getting into the car at the Country Club to return to Butte, looked at defendant carefully, and said that he appeared to be sober; that "he walked and talked all right, and I saw him dancing the same as any other person would dance. * * * He was not talkative or hilarious or anything of that kind so as to indicate that he had been drinking."

There was a dirt road from the Country Club to the main highway. This road was traversed by defendant in a careful manner. Upon reaching the main highway, which was paved, defendant accelerated his speed. Plaintiff's version of what then transpired is as follows: "When we got onto the pavement Mr. Berger accelerated his machine and we gathered speed to a point where I became nervous and I made a remark something to the effect of ``what is the hurry.' And he apparently paid no attention to that, but built up more speed, and I then told him that we had all night to get home in. And after one of those remarks the only reaction I got from him was that he rather smiled and stepped harder on the throttle. It was night and we were gaining momentum all the time and we passed several cars and I was very nervous. Then we came to these two little jogs in the road this side of where the accident occurred, and he went into those curves at an excessive rate of speed. I know on one of those curves he frightened me so that I stiffened out so that my trousers were off the cushion and my weight raised from my feet to the back of the seat, and I said, ``For Christ's sake slow down!' In going around those curves the car tilted, and I could hear the tires sing as they do when you go around a corner fast. After we came out of those curves he continued to go still faster. In going around these curves he did not stay on his side of the pavement, but rounded the curves; and at one of the curves I thought he was going to go off the pavement, but he managed to stay on. He continued to go still faster. I have always been nervous in a car and I was certainly nervous that night passing those cars and driving at such an excessive rate of speed, and for some distance I rode looking down into my lap and trying to get hold of myself, and as I was looking down I rather glanced up a little and saw the speedometer, and I could see that the needle was pointing at seventy miles an hour, and I looked up and saw some lights and we hit the wrecker. I did not know at that time just what it was we hit."

From the record it appears that the paved portion of the highway was eighteen feet wide and at that time there was a five-foot graveled shoulder on each side of the pavement. The wrecker was standing on the highway with its engine running and with both headlights, a spread light between them, a tail-light, and a working light, all lighted. The working light was focused on a Ford car in the ditch beside the road. Those in control of the wrecker were about to use it for the purpose of taking the Ford car from the ditch. There was a gradual curve in the road at the place where the wrecker stood. It stood on the right-hand side of the road going to Butte but was facing in the general direction of Anaconda. There was ample room on the paved part of the highway to allow cars to pass the wrecker. Both of the left wheels and, according to some of the evidence, the right rear wheel of the wrecker were off the paved portion of the highway. The right front wheel was on the pavement, thus placing the wrecker in an angling position across the right portion of the highway going towards Butte, so that the lights would not point directly up the pavement but in an angling direction toward the right side of the road going towards Anaconda. There is evidence that the wrecker weighed 4,500 pounds. It was standing between forty and fifty feet towards Anaconda from a certain culvert. The brakes on the wrecker were set at the time of the collision.

When the cars came to a stop after the impact the wrecker was facing Butte and was situated in the ditch beside the culvert upside down, and the Buick came down on its side on the pavement near the culvert and burst into flames. Wilson was killed as the result of the collision, and plaintiff sustained serious injuries which will be hereafter more fully explained.

Aside from the testimony of plaintiff there was evidence that[1-3] defendant's car, as it hit the wrecker, was moving at sixty miles per hour, or more. Defendant contends that the evidence is insufficient to show that his negligence as charged was the proximate cause of plaintiff's injuries. The question was raised on motion for a directed verdict.

The rule of law existing in this jurisdiction at the time the plaintiff was injured made it incumbent upon the driver of an automobile to use reasonable care for his guest's safety. (Liston v. Reynolds, 69 Mont. 480, 223 P. 507; Hornbeck v. Richards, 80 Mont. 27, 257 P. 1025.) By Chapter 195, Laws of 1931, the rule has been changed so that the driver is liable to his guest only in case of injury caused by his "grossly negligent and reckless operation." But Chapter 195 has no application to cases arising prior to its passage and approval.

Whether the injury sustained is the proximate consequence of defendant's wrongful act is ordinarily a question for the jury, and it is only where the court is able to see from the undisputed facts that the injury is a remote, and not the proximate, result of defendant's act that the question becomes one of law for the court. (Boyd v. Great Northern Ry. Co., 84 Mont. 84,274 P. 293.)

"In determining the proximate cause of an injury or accident, we must always look to the succession of events existing in every transaction, more or less dependent each upon the preceding event, and it is the province of the jury to look to such succession of events and ascertain whether they are naturally and probably connected with each other by a continuous sequence or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time. (Milwaukee etc. Ry. v. Kellogg, 94 U.S. 469, 24 L. Ed. 256.) If this sequence of events leads up to and results in the injury without intervening independent cause, it is the efficient and proximate cause." (Burns v. Eminger, 84 Mont. 397,276 P. 437.)

The wrecker was making a proper and necessary use of the[4] highway under the emergency existing. (Kastler v.Tures, 191 Wis. 120, 210 N.W. 415.) Its lights were properly lighted. There was no evidence of an intervening independent cause aside from defendant's negligence, which the jury could reasonably have said was the proximate cause of plaintiff's injuries, unless it was plaintiff's own contributory negligence, — a question which we shall discuss elsewhere herein.

If, as his counsel contends, defendant had a right, when he first saw or should have seen the lights on the wrecker, to assume that it was a car moving in the direction of Anaconda and which he was about to meet, still it was for the jury to say whether he should not have slackened the speed of his car upon approaching it.

The evidence was amply sufficient to warrant the jury in finding that defendant's negligence, as alleged, was the proximate cause of plaintiff's injuries.

Defendant assigns error in the refusal of the court to give[5] the following instruction offered by him: "You are instructed that it is another principle of law, or another rule, that even if you should believe that a man was negligent at a certain time or in a certain way, that is not enough; you must further determine that the negligence was what is called the proximate cause of a result. For instance, in this case plaintiff has charged that defendant was guilty of negligence in certain things; now even if you should believe that defendant was negligent, that would not be enough. You must further ask yourselves, was anything that you may believe defendant did negligently, the proximate cause of any injury which plaintiff has claimed and which you may believe he has suffered. This thing called ``proximate cause' is not easy to describe and may be hard to understand; but as the law defines it, it is this: If a person does something which an ordinarily careful and prudent person would or should figure would be liable to injure another, the way things usually go in this world, then the thing which is done may be said to be the proximate cause of whatever happens. On the other hand, if in the ordinary course of events, the thing which is done would not by itself alone be liable to produce injury and the resulting injury would not have happened except that someone else did something which the first person ought not reasonably to have expected he would do, then the latter thing is such a cause as prevents the former from being the proximate cause of the injury. If under this rule you shall believe that defendant did nothing which was the proximate cause of the collision, then your verdict must be for the defendant."

The court gave the following instruction on proximate cause: "The proximate cause of an injury is that cause which in a natural and continuous sequence, unbroken by any new and independent cause, produces the injury, and without which it would not have occurred. You are therefore instructed that if you find from the evidence that the negligence, if any, of the defendant was the proximate cause of the injuries, if any, sustained by the plaintiff, your verdict must be in favor of the plaintiff."

Defendant's offered instruction was properly refused. Conceding, without deciding, that the instruction was not erroneous, notwithstanding that it covered merely acts of commission on the part of the defendant and did not embrace acts of omission, it was so involved as to be quite as likely to confuse as to enlighten the jury, and for that reason was properly refused. The instruction given on proximate cause states the law as repeatedly announced by this court (Wallace v.Chicago, M. St. P. Ry. Co., 48 Mont. 427, 138 P. 499;Kirby v. Oregon Short Line R.R. Co., 59 Mont. 425,197 P. 254; Mize v. Rocky Mt. Bell Tel. Co., 38 Mont. 521, 129 Am. St. Rep. 659, 16 Ann. Cas. 1189, 100 P. 971; Stroud v.Chicago etc. Ry. Co., 75 Mont. 384, 243 P. 1089; McCloskey v. City of Butte, 78 Mont. 180, 253 P. 267), and was sufficient on the subject.

The next contention of counsel for defendant is that his[6] motion for a directed verdict should have been sustained on the ground of plaintiff's contributory negligence. Specifically he contends that under the evidence plaintiff knew that defendant was intoxicated when he left the Country Club and, therefore, that plaintiff took his own chances in riding with him. There is no direct evidence that he knew of the intoxication, if it existed. Defendant did not testify in his own behalf and neither did he offer any evidence to the effect that he was intoxicated. If he was intoxicated to plaintiff's knowledge, that fact must be ascertained from plaintiff's evidence. Careful reading of the evidence offered by plaintiff convinces us that it was for the jury to determine whether defendant was intoxicated at the time they left the Country Club and, if so, whether plaintiff knew it. The issue of contributory negligence was fairly submitted to the jury by the instructions and, since the jury found for plaintiff on substantial evidence, its finding will not be disturbed.

The next contention of defendant is that the court erred in[7, 8] receiving evidence, over his objection, of the cost of an annuity and in giving instructions on the subject. The particular point here urged is that there was not a proper foundation laid for the admission of such evidence. The evidence was introduced through the witness R.W. Miller, who for fifteen years had been an agent of the New York Life Insurance Company. Without objection he testified that plaintiff's expectancy of life, as shown by the American Mortality Tables, was 36.73 years; that the New York Life Insurance Company is a standard, old line company, and that it and other companies used the American Table of Mortality. He said he had the cost of purchasing straight annuities with his company, and that it is the rate book which he used for taking of applications for annuities, or any other type of insurance. He admitted that he was not familiar with the elements going to make up the cost of an annuity, other than the expectancy of life as determined by the mortality table, but that the cost of an annuity was found as part of the "American Table of Mortality."

The American Table of Mortality is a standard table, of the contents of which the courts will take judicial knowledge. (Mug v. Ostendorf, 49 Ind. App. 71, 96 N.E. 780; Gordon v.Tweedy, 74 Ala. 232, 49 Am. Rep. 813.) It being a standard table it was not necessary to make any further identification of it or to qualify the witness who gave its contents. (Stephens v. Elliott, 36 Mont. 92, 92 P. 45.) And the annuity tables which are a part of the mortality tables (Marshall v.Marshall, 252 Ill. 268, 96 N.E. 907), and so shown by the testimony of Miller, are subject to the same rules of admissibility. (Borland v. Pacific Meat Pack. Co.,153 Wash. 14, 279 P. 94.) The evidence complained of was properly admitted and the instructions on the subject were properly given.

If defendant were able to profit by evidence of the elements or factors used in computing the cost of an annuity, or if he could show that other reliable companies sold annuities at a lesser cost, it was incumbent upon him to produce such evidence. This he did not do. True, the court instructed the jury as follows: "Annuity costs and mortality tables have been introduced in evidence in this case. Such tables are not to be considered as absolute basis for your calculations but must be used by you as a guide only so far as the facts before you correspond to those from which such tables were computed." The only objection made to the instruction was that there was no competent evidence before the jury of the cost of purchasing an annuity. There was no specific objection upon the ground now urged: that there was no[9] evidence showing the facts from which the mortality table was computed. Under the circumstances defendant is in no position to question the propriety of the instruction or to complain that it covers a matter upon which there was no evidence, the contents of the table itself having been properly before the jury.

Error is predicated upon the admission in evidence, over[10, 11] defendant's objection, of two photographs taken about two years after the accident, exhibiting the highway at the place where the collision took place. One of them was taken with the camera 400 feet from the culvert towards Anaconda, and the other 300 feet therefrom in the same direction. Both pictures show the curve of the road and show an automobile standing beside the road at about the place where the wrecker stood. Evidence showed that between the time of the injury and the time the pictures were taken, the graveled shoulders of the road had been widened. The photographs were taken the same day that the engineer made plats. The plats were introduced without objection. The pavement was the same when the pictures were taken as when the accident occurred, and the general condition of the road was the same with the exception of the graveled shoulders, which was fully explained in the evidence. The general rule governing the admissibility of photographs is that they stand upon the same footing as a map or plat. (Stokes v. Long, 52 Mont. 470, 159 P. 28.) And "it is not even necessary that the situation or condition should be precisely the same, but it is sufficient if the situation is substantially unchanged, and even the fact that there have been changes in conditions, will not necessarily exclude a photograph where the changes can be and are explained, so that the photograph, as explained, will give a correct understanding of the condition existing at the time to which the controversy relates." (22 C.J. 920.) It was not error to admit the photographs in evidence.

Error is assigned in giving the following instruction: "The[12-14] statute laws of the state of Montana provide that at all turns, curves, corners and crossings, vehicles must slow down and be under complete control. You are therefore instructed that if you find from the evidence that the defendant violated this statute at the curve where this collision occurred, he was guilty of negligence as a matter of law." This is the law as declared in Chapter 80, Laws of 1927. The objection to the instruction was that there was no evidence that defendant knew, or should have known, that at the point where the collision took place there was such a curve as required slowing down and having his car under complete control, and that the statute imposes an unreasonable obligation upon drivers and for that reason is unenforceable.

As to the first of these objections it is sufficient to say that a person is presumed to see, and therefore know, that which he could see by keeping a lookout. (Autio v. Miller, ante, p. 150, 11 P.2d 1039.) Had he kept a lookout he would have seen the curve long before colliding with the wrecker. The obligation imposed by the statute is not an unreasonable one.

Defendant, in a proper case, would have the right to request an instruction defining the word "control" as used in the statute. There is no support in the evidence for such an instruction and no such instruction was offered. In Carruthers v. Campbell, 195 Iowa, 390, 28 A.L.R. 949, 192 N.W. 138, the court said: "The phrase ``having his car under control' does not necessarily mean ability to stop instanter under any and all circumstances. Such a rule would be impossible of observance. A car is ``under control' within the meaning of the law if it is moving at such a rate, and the driver has the mechanism and power under such control, that it can be brought to a stop with a reasonable degree of celerity." Other cases defining the word "control" are cited in the exhaustive note in 28 A.L.R., commencing on page 952. We need not in this case attempt to define its meaning. In any event, whether there be proper control in a given case depends largely upon the speed of the car. The number of fatalities daily occurring establish the fact that a speeding automobile is a dangerous instrumentality regardless of the skill of the driver in steering it. Control and speed are so inseparably connected that it is doubtful whether the former could ever be said to exist when the speed is excessive. The test usually applied in determining whether a car is under control is the ability to avoid colliding with another who is using the highway and exercising proper care and caution on his own part. (See cases cited in note in 28 A.L.R., p. 958.) The statute complained of is valid and, as against the objection made to it, the instruction was properly given.

The next and final contention is that the verdict is[15, 16] excessive. In considering this question we keep in mind the well-established rule that in personal injury actions there is no fixed measuring stick by which to determine the amount of damages, other than the intelligence of the jury; that the jury is allowed a wide latitude, and unless it appears that the amount awarded is so grossly out of proportion to the injury as to shock the conscience, this court will not substitute its judgment for that of the jury, especially where, as here, the trial court has approved the verdict by denying the motion for a new trial. (Sullivan v. City of Butte, 87 Mont. 98,285 P. 184; Staff v. Montana Petroleum Co., 88 Mont. 145,291 P. 1042; Autio v. Miller, supra.)

The evidence shows that at the time of the injury plaintiff was employed as a salesman by the Cellucotton Products Company, earning $360 per month, which consisted of $150 straight salary, $60 per month bonus, conditioned upon his working out a twelve-months period, and $150 per month for living expenses. He was also given an allowance for expenses in running an automobile. He expended $3,570 for medical and hospital expenses as a result of the injuries. From the time of the injury until the time of the trial (nearly three years) he had been totally incapacitated from performing any work. Both bones in his left leg were broken as the result of the collision. To bring about a partial cure it was necessary to effect a bone graft. He suffered excruciating pain for months while his leg was undergoing treatment in the hospital. There is a permanent disability in that the injured leg is shorter than the other and the muscles are smaller, and there is no free movement of the ankle joint. As a result the injured leg is much weaker than the other. There is evidence that in consequence plaintiff will not be able to carry on his previous occupation but must accept a less strenuous one. There is evidence that his future earning capacity will be limited to $150 per month. His actual loss of earnings for the three years elapsing from the time of the injury to the time of the trial amounted to more than $12,000. When to this is added the $3,570 medical and hospital expense, the remainder of the verdict is easily accounted for in the way of reasonable compensation for pain and suffering and loss of future earnings. We cannot say that the amount of the verdict indicates passion and prejudice on the part of the jury.

Plaintiff filed a supplemental transcript on appeal showing,[17] among other things, the verdict of the jury upon a former trial of this cause. In his brief he makes reference to this verdict and quotes from what purports to be the testimony of defendant Berger in the former trial, but which was not introduced in this trial. Defendant filed a motion to strike the entire brief, or if that be not proper, then in the alternative, that certain pages of the brief wherein reference is made to these matters be stricken therefrom. The matter complained of, not being part of the record of the trial resulting in the judgment appealed from, is not properly before us. The motion to strike those portions of the brief is sustained, but the motion to strike the entire brief is denied.

No error appearing, the judgment is affirmed.

MR. CHIEF JUSTICE CALLAWAY, MR. JUSTICE MATTHEWS, HONORABLE JEREMIAH J. LYNCH and HONORABLE JOHN HURLY, District Judges, sitting, respectively, in place of JUSTICES GALEN and FORD, disqualified, concur.