Garza v. Peppard

No. 84-42
IN TEE SUPREME COURT OF THE STATE OF MONTANA
1984
SARAH GARZA,
Petitioner and Respondent,
-vs-
DENISE E. PEPPARD,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable R. C. McDonough, Judge presiding.
COUNSEL OF ilECORD:
For Appellant:
McIntee & Whisenand, Williston, North Dakota
For Respondent :
Phillip N. Carter, Sidney, Montana
Submitted on Briefs: August 30, 1984
Decided: October 16, 1984-
Filed: OCT 1 :; 1984
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendant and appellant, Denise S. Peppa.rd appeals the
October 26, 1983, order of the Seventh Judicial District
Court of Montana, Richland County, granting plaintiff Sarah
Garza's motion, for judgment notwithstanding the verdict on
the issue of negligence and granting Garza a new trial on the
issues of proximate cause and damages. We affirm the order
of the District Court.
Sarah Garza was a passenger in a car driven by her
husband, Ascension Ga.rza, when it wa.s rearended by a truck
driven by Denise Peppard on January 24, 1981. Both vehicles
were proceeding north in a no passing zone on Fairview
Highway. As the Garza vehicle was turning right off the main
highway and onto the Garza's private road., the right front
portion of the Peppard vehicle struck the left rear portion
of the Garza vehicle. The Peppard vehicle was travelling
less than ten miles per hour at the time of the collision.
Sarah Garza filed suit against Peppard May 18, 1982, for
damages from injuries she allegedly received as a result of
that accident. A jury trial was held September 26 through
September 28, 1983. Testimony relevant to this appeal was
taken from the investigating highway patrol officer, James
Matthew Kinsey, the driver of both vehicles and plaintiff.
At the close of the evidence, plaintiff's attorney moved for
a directed verdict. The motion was denied, and the case
given to the jury, which found no negligence on the part of
defendant. Subsequently, Garza filed her motion for judgment
notwithstanding the verdict. That motion was granted October
26, 1983.
Appellant filed a notice of appeal on November 29, 1983.
The Clerk of the Supreme Court received the case record on
January 20, 1984, twelve days after the forty-day deadline
for transferral of record. See Rule 10 (c), M.R.App.Civ. P.
Pertinent portions of the transcript were omitted from the
record. Specifically, there was no transcription of Garza's
attorney's motion for a directed verdict nor of his motion in
limine to prohibit any reference to the theory of unavoidable
accident. For these reasons, Garza filed a motion to dismiss
the appeal on April 18, 1984. We summarily denied the motion
April 19, 1984, and Garza provided this Court with the
missing portions of transcript.
We reaffirm our order denying respondent's motion for
dismissal. An appeal need n.ot he automatically dismissed in
every instance where the Rules of Appellate Civil Procedure
have not been strictly followed. Only failure to timely file
the notice of appeal affects the validity of the appeal.
Other procedural violations are grounds only for such action
as we deem appropriate. Yetter v. Kennedy (19771, 175 Monte
The violations caused no substantive harm. There is no
evidence of any intention on the part of Peppard to mislead
this Court by failing to submit all. relevant portions of
transcript. Dismissal of this appeal is not appropriate.
The sole remaining issue is whether the trial court
erred in granting Garza's motion for judgment notwithstanding
the verdict. We find no error as Denise Peppard is guilty of
negligence as a matter of law for failing to keep a proper
"Under Montana law, a motorist has a duty to look
not only straight ahead but laterally ahead as well
and to see that which is in plain sight.
Furthermore, a motorist is presumed to see that
which he could see by looking, and he will not be
permitted to escape the penalty of his negligence
by saying that he did not see that which was in
plain view. Nissen v. Johnson (1959), 135 Mont.
329, 333, 339 P.2d 651, 653;
(1955), 129 Mont. 29, 281 P.2d 1028; Koppang - v.
Sevier (1938), 106 Mont. 79, 75 P.2d 790.
"Clearly, a person is negligent in either not
looking or looking but not seeing if he claims not
to have seen an object which is so clearly visible
that all reasonable minds would agree the person
must see the object if he were to look with
reasonable diligence. " Payne v. Sorenson (1979),
183 Nont. 323, 326-327, 599 P.2d 362, 364.
The evidence is undisputed that the view of the turn-off
from Fairview Highway onto Garza's private road is
unobstructed from the south for 900 feet, the direction from
which both vehicles were coming. Officer Kinsey testified
that skid marks indicating the application of brakes by
Peppard did not start until 168 feet south of the Garza
drive. Peppard herself testified that she did not notice the
Garza vehicle slowi-ng until she was practically upon it. The
road was dry and the weather clear and sunny. No
contributory negligence on the part of Ascension Garza or a
third individual was alleged or proved. The only reasonable
conclusion is that Peppard failed to keep a proper lookout.
Kudrna v . Comet Corporation (1.977), 175 Mont. 29, 572 P.2d
183.
This cause is remanded to the District Court for trial
on the issues of proximate c u e a n d
as--, damages.
We concur: