Hill v. Haller

While it is the general rule of law prevailing in this state that verdicts based upon conflicting evidence are binding upon the supreme court on appeal, there is an equally well-established exception to that rule, to the effect that the evidence referred to in the general rule must be credible evidence; and that when testimony is impeached by its inherent improbability and by the credible testimony of other witnesses unimpeached, such impeached testimony cannot be regarded as "evidence" and cannot furnish the foundation for a verdict. (First State Bank v. Larsen,65 Mont. 404, 211 P. 214; Whitney v. Bertoglio Mercantile Co.,65 Mont. 358, 211 P. 323; Jeffrey v. Trouse, 100 Mont. 538,50 P.2d 872; Casey v. Northern P. Ry. Co., 60 Mont. 56, 198 P. 141.) The rule that a verdict, based upon conflicting evidence will be sustained does not apply to conflicts within the testimony of a party. (Dunn v. Beck.80 Mont. 414, 260 P. 1047.) Plaintiff narrated an inherently improbable story. This is to be found in the testimony of five disinterested witnesses, — testimony "unimpeached by any of the modes known to law" and credible within itself. (First StateBank Case, supra.) This court has frequently announced the rule that if the testimony at the conclusion of the evidence is in such a condition as that a court would be legally required to grant a new trial if the verdict of a jury should be in favor of a plaintiff, an immediate failure of proof exists and a verdict should be directed in favor of a defendant. (Bean v. MissoulaLumber Co., 40 Mont. 31, 104 P. 869; McIntyre v. NorthernP. Ry. Co., 56 Mont. 43, 180 P. 971; Stiemke v.Jankovich, 72 Mont. 363, 233 P. 904; Boyd v. HarrisonState Bank, 102 Mont. 94, 56 P.2d 724.) The motion for a directed verdict certainly should have been granted.

Appellant is not foreclosed to raise the question of the sufficiency of the evidence by the fact that the trial court denied appellant's motion for a new trial. I refer to the case ofJeffrey v. Trouse, supra, wherein this court passed upon the sufficiency of the evidence and ordered a new trial; and the case of West v. Wilson, 90 Mont. 522, 4 P.2d 469, wherein it said: "Insufficiency of the evidence is a ground for a new trial (sec. 9397, subd. 6, Rev. Codes, 1921), ``and in passing upon the motion it is the duty of the trial court to weigh the evidence, and, if it is not sufficient to sustain the verdict, a new trial should be ordered (Mullen v. City of Butte, 37 Mont. 183,95 P. 597), and, if it is not, the appellate court must then determine whether there is substantial evidence to warrant the verdict and will not abdicate its authority in favor of the jury's findings. Jurors are subject to the ordinary infirmities of human nature, and cases are sometimes presented wherein justice would be denied if the courts failed to interfere.' (Casey v. Northern P. Ry. Co., 60 Mont. 56, 198 P. 141, 145.)"

The court gave five instructions to the jury over the objection of appellant, that it was improper to permit the jury to consider provisions of the state statutes relating to the operation of automobiles: that thereby, in effect, questions of negligence were presented which were without the issues presented by the complaint. This court has stated that pleadings should be reasonably certain in their allegations so as to fairly apprise the opposite party of the facts which the pleader expects to prove and so that the adverse party will be able to prepare his evidence to meet the alleged facts. (Kozasa v. Northern P.Ry. Co., 61 Mont. 233, 201 P. 682.)

The allegations of this complaint are unquestionably not certain enough to have indicated to appellant that respondent would seek to hold her liable because of any claim that she passed, "at a speed greater than six miles per hour," a street car which had stopped to receive and discharge passengers, nor that respondent woud seek to hold her because of a claimed failure to obey the mandate of the statute that at "corners and crossings vehicles must slow down and be under complete control." Counsel for respondent certainly must have been familiar with the rule announced by this court to the effect that state statutes with reference to automobile traffic are not applicable in instances wherein, by ordinance, cities have legislated upon the subject. (Carey v. Guest, 78 Mont. 415, 258 P. 236.) Having in mind the rule obtaining in this jurisdiction of certainty of pleading, and, as well, in view of decisions herein to be cited with reference to the necessities of pleading, when reliance is to be placed upon statutory provisions, curiosity may exist as to the reason for respondent's having alleged that the scene of the accident was upon "public streets and highways within the corporate limits of the city of Butte." Such an allegation certainly is not calculated to suggest reliance upon any statutory provisions of the state relating to traffic upon highways. It has long been a rule of pleading in this jurisdiction that it is sufficient, after stating the acts which were done or omitted, to charge that they were negligently done or omitted. (Johnson v. Herring, 89 Mont. 156, 295 P. 1100.) The complaint in this action was and is a typical and literally correct adaptation of this rule of pleading. The abstract rule of law as stated in the instructions is that if a statutory provision is violated that of itself amounts to negligence. It makes no difference whether a reasonably careful or prudent person would or would not have done the act, and, hence, the ordinary standard for determination of the question of negligence is immaterial. Accordingly, when respondent, in this case, alleged that certain acts were negligently done, rather than saying that the acts were done in violation of the statute, it became reasonably certain from the pleading that ordinary negligence was being relied upon.

When a party litigant seeks to rely upon the provisions of statute seeking a right where none before existed, such party must, by the allegations of his pleading, bring himself clearly and squarely within the provisions of the statute. (Kelly v.Northern P. Ry. Co., 35 Mont. 243, 88 P. 1009; Ball RanchCo. v. Hendrickson, 50 Mont. 220, 146 P. 278; Kirk v.Smith, 48 Mont. 489, 138 P. 1088; Ecclesine v. GreatNorthern Ry. Co., 58 Mont. 470, 194 P. 143.)

Counsel sought the advantage of the rule of negligence perse, but respondent did not by certain allegations predicate her claims of negligence upon violation of the statutes to which these instructions related. The only foundation for a claim that the pleading would permit reliance upon the statute would have to come from a contention (condemned by the case of West v.Wilson, supra), that the complaint was "a device to entrap" appellant. This is an appeal by defendant from a judgment entered on a verdict in favor of plaintiff. The action was one to recover damages for personal injuries sustained by plaintiff as a result of alleged negligence of the defendant in driving an automobile into and against her at a street intersection in Butte. Defendant contends that the evidence submitted by plaintiff was insufficient to justify submission of the case to the jury and to sustain the verdict and judgment. This question was raised by an offered instruction to find for defendant, and by motion for new trial. No motion for nonsuit was made.

Plaintiff's version of the accident was recounted by her as follows:

The collision occurred on West Park Street and at the intersection of that street and Jackson Street. The plaintiff at the time was employed as chambermaid at the Apex Hotel situated on the north side of Park Street, and a few feet east of the intersection of Park and Jackson Streets. She had finished working on September 3, 1936, about 4 o'clock in the afternoon, and intended to ride on a street car to her home. As she came out of the hotel, she said, the street car had come to a stop in front of the hotel east of Jackson Street, with the front end of the street car facing east and the back end at about the east crosswalk of Jackson Street, and that she customarily caught the street car at that point. She was carrying several bundles or packages at the time and proceeded westerly to the east crosswalk of Jackson Street and then proceeded on the crosswalk, intending to pass around the rear of the street car and board it on the south side and near the front end. A number of automobiles were parked in close formation on the north side of Park Street at an angle. The one nearest the Jackson Street crossing was a truck, and it was parked so that both front wheels were slightly west of a line drawn at right angles with the west side of the door to the Apex Hotel. As she was walking on the crosswalk toward the rear of the street car, she said she observed passengers in the process of getting on and off; that when she reached a point within six feet of the street car, she was struck by defendant's automobile which, she said, was traveling at a rate of speed of forty miles per hour, resulting in the injuries of which she complains; that she did not see the automobile until the moment it struck her; it passed through the space between the street car and the parked automobiles and was traveling westward. She said that the front of the automobile struck her on the left side. All of the injuries were to her left side, and her attending physician gave it as his opinion that the impact came from the left side. Plaintiff testified, and defendant conceded, that the latter did not sound the horn of the automobile or give any warning of its approach at the crossing.

Plaintiff contends that this evidence brought the case within subdivision 4 of section 1743, Revised Codes, reading: "No motor vehicle operating upon a public street or highway of this state shall pass on either side thereof a street-car which has stopped to receive or discharge passengers at a less distance than eight feet, nor at a speed greater than six miles per hour."

Defendant takes the view that this court should disregard[1] plaintiff's evidence. Her counsel contends that the case is controlled by the case of Casey v. Northern P. Ry. Co.,60 Mont. 56, 198 P. 141, 145, and others of like import. In theCasey Case this court said: "Whenever the surrounding circumstances make the story of a witness highly improbable or incredible, or whenever the testimony is inherently impossible, a new trial should be ordered. Physical conditions may point so unerringly to the truth as to leave no room for a contrary conclusion based on reason or common sense, and under such circumstances the physical facts are not affected by sworn testimony which in mere words conflicts with them."

The reason for the conclusion reached in the Casey Case was stated by the court as follows: "In his testimony given upon the trial of this case the plaintiff contradicted himself repeatedly; contradicted the allegations of his verified complaint; was contradicted by his previous statements, by the physical facts, by every one of defendant's witnesses, and by his own witness, Marchington. Some of his declarations are too transparent to be entitled to credence, are improbable upon any supposition short of actual mental imbecility."

Is plaintiff's evidence here open to the objections relied upon in the Casey Case? Plaintiff here did not repeatedly or at all contradict herself. She did not contradict the allegations of her complaint. She was not contradicted by previous statements made by her. Her testimony was not in conflict with the physical facts.

While defendant did not so contend, two of the members of this court in the dissenting opinion take the view that it would have been impossible for plaintiff to observe passengers getting on or off the street car from the point where she said she did. Had plaintiff been cross-examined on the point, she doubtless would have explained that she made that deduction from the fact that looking through the windows of the street car she saw people moving to and fro in the aisle. That is a deduction frequently made when people are seen moving to and fro in a standing train or bus.

It is also suggested in the dissenting opinion — and this, too, was not urged by defendant — that, since plaintiff testified that she heard the street car coming up the hill while she was coming down the stairs of the Apex Hotel, her entire testimony should be disregarded because, if the street car was coming up the hill when she was on the stairs, it could not have arrived and stopped at the place where she said it was after she reached the sidewalk in the brief time consumed by her in descending the stairs. As to this it is sufficient to say that at best it was simply her opinion as to where the street car was when she heard it. She doubtless was mistaken in supposing that it was coming up the hill when she heard it; that her guess or opinion in that regard may have been wrong is no reason for condemning all of her testimony. Moreover, where the street car was when she first heard it was a collateral matter and should not be the controlling point in the case. And, too, whether passengers were getting on or off the street car was likewise a collateral matter, admissible to prove that the street car had come to a stop before defendant had come to it, but that was not the only method of proving the fact. The motorman admitted that he stopped the street car intending to receive plaintiff as a passenger. Whether other passengers got on or off was not vital to plaintiff's right of recovery.

The gist of defendant's contention is that plaintiff's testimony that when the street car was standing in front of the Apex Hotel she walked in a direction away from rather than toward the point at which she could enter the street car, is contrary to the usual propensities of man and the course of human nature, and hence in conflict with the inference that may be drawn (sec. 10603, Rev. Codes) from the undisputed facts. She contends that the universal practice for those seeking transportation on a street car, and where departure is imminent, is to blindly run for the nearest entrance of the street car. If this inference is one that arises ordinarily, there were facts which make it improper to draw that inference here. There were cars parked in close formation in the path that plaintiff would have taken had she desired to travel the shortest route to the street car entrance if the street car was where she said it was, making it impossible, or at least difficult, for her to do so. But, in any event, we cannot say that it is entirely impossible or incredible that plaintiff did as she said.

We find no basis for condemning plaintiff's testimony as[2] unworthy of belief. It is true that on all essential matters it stood practically alone and was disputed by defendant's witnesses, some of whom were disinterested. But that simply presented a situation where there was a conflict in the evidence. Under well-established and familiar rules, where there is a conflict in the evidence the questions are for the jury. The testimony of one witness is sufficient to establish a fact regardless of the number of witnesses testifying to the contrary. (McQuay v. McQuay, 81 Mont. 311, 263 P. 683; Vesel v.Polich Trading Co., 96 Mont. 118, 28 P.2d 858.) The weight of the testimony and the credibility of witnesses is for the jury (sec. 10672, Rev. Codes), which has the advantage of personal observation of the witnesses.

It is contended that plaintiff's testimony that the automobile[3] was traveling forty miles per hour is unbelievable. Evidence of speed, excepting as to one who happens to be watching the speedometer, is essentially a matter of opinion. Plaintiff might have been mistaken. Defendant admitted that she was traveling eighteen or twenty miles per hour, and this was sufficient proof to establish negligence under subdivision 4 of section 1743, Revised Codes, so far as speed of the automobile was concerned.

Were this court, from the cold record, to determine in this case which of the witnesses told the truth and which did not, then we would be obliged to do so in every case where there is conflicting evidence, and we would retain in form only, but not in fact, what we now call our jury system.

Defendant contends that the court erred in denying her motion[4] for a new trial for insufficiency of the evidence to support the verdict, and that the verdict is against law. She argues that on motion for new trial this court may weigh the evidence. She places reliance upon the case of Jeffrey v.Trouse, 100 Mont. 538, 50 P.2d 872. In that case the jury found for defendants, and this court remanded the case for a new trial. It did so, however, because the evidence in behalf of defendants was not consistent with the physical facts. The case came within the principles announced in the Casey Case. Because the evidence for defendants was not consistent with the physical facts, there existed no actual conflict in the evidence. The court stated: "It is the rule that when the record presents a conflict in the evidence resolved by the jury in favor of a party, this court is precluded from disturbing the verdict." The plaintiff's evidence here not being inconsistent with the physical facts, and not being improbable or unreasonable, leaves the situation where there is a conflict in the evidence.

This court in a number of cases has held that an inference or presumption fades away in the face of uncontradicted, credible evidence so clear and convincing as to leave but one inference in the minds of reasonable men. (Monaghan v. Standard Motor Co.,96 Mont. 165, 29 P.2d 378; Nichols v. New York Life Ins.Co., 88 Mont. 132, 292 P. 253; Pankovich v. Little HornState Bank, 104 Mont. 394, 66 P.2d 765.) But here the evidence of defendant's witnesses was not uncontradicted. It was squarely contradicted by the testimony of plaintiff; and plaintiff's case does not rest upon an inference or presumption, but upon sworn testimony. Someone must pass upon the credibility of the witnesses. That function, under repeated decisions of this court, is for the jury in the first instance. There are cases holding that the trial court may on motion for new trial pass upon the question whether the verdict is against the weight of the evidence, but in those cases it has been held that the question is within the discretion of the trial court which has the advantage of seeing the witnesses and observing their conduct and demeanor, and that this court will not disturb the discretion of the trial court (Hamilton v. Nelson, 22 Mont. 539,57 P. 146), in the absence of abuse (Mullen v. City of Butte,37 Mont. 183, 95 P. 597), but will determine whether there is substantial evidence to warrant the verdict, and to warrant the action of the trial court in its ruling on the motion for new trial. (West v. Wilson, 90 Mont. 522, 4 P.2d 469.)

On the record we cannot say that there is not substantial evidence to support the jury's verdict and the court's denial of the motion for new trial. The testimony of plaintiff here was not subject to the infirmities pointed out by this court in the cases of McAllister v. McDonald, 40 Mont. 375, 106 P. 882; FirstState Bank of Thompson Falls v. Larsen, 65 Mont. 404,211 P. 214; Whitney v. Bertoglio Mercantile Co., 65 Mont. 358,211 P. 323; State v. Gunn, 85 Mont. 553, 281 P. 757;Boepple v. Mohalt, 101 Mont. 417, 54 P.2d 857, and others relied upon by defendant.

One other point must be considered. Under our statute (subd.[5] 1, sec. 1743, Rev. Codes), it is provided: "At all (turns) curves, corners, and crossings, and particularly where the view is in any manner obstructed both in cities and towns and in the country, vehicles must slow down and be under complete control," etc. The evidence is such that it was a jury question as to whether defendant acted as a reasonably prudent person would have acted under all the circumstances in traveling at the point of collision at the speed of eighteen or twenty miles per hour, as she admitted, even though the street car had not come to a full stop when defendant met it. At that speed she would travel thirty feet while plaintiff traveled eight or ten. Whether, in the exercise of reasonable care, she should have seen plaintiff in time to avoid the collision, was for the jury.

Defendant complains that the court instructed the jury as to[6] her duty and liability under section 1743, Revised Codes. Her counsel contends that the complaint is not sufficient to inform her that plaintiff was relying upon section 1743. This contention cannot prevail. The complaint alleged facts sufficient to bring the case within that section.

Other contentions have been considered and found without merit.

The judgment is accordingly affirmed.

MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICE ERICKSON concur.