                                  NO.    12252

      I N THE SUPREME C0UX.T O TKE STATE OF M N A A
                              F              OTN

                                      1972



CHESTER ASHTON,

                          P l a i n t i f f and A p p e l l a n t ,

      -vs   -
GERALD HARRIS,

                          Defendant and Respondent.



Appeal from:      D i s t r i c t Court o f t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
                  Honorable A . B e M a r t i n , Judge p r e s i d i n g .

Counsel of Record:

    For Appellant:

            Roland V. Colgrove a r g u e d , Miles C i t y , Montana.
            Kenneth R. Wil-son, Miles C i t y , Montana.

    F o r Respondent:

            K e e f e r and Roybal, B i l l i n g s , Montana.
            J. >Dwaine Roybal a r g u e d , B i l l i n g s , Montana.



                                                Submitted :           October 20, 1972

                                                   Decided : JflJnN      4    l?
                                                                               z
Mr. J u s t i c e Frank I . Haswell delivered the Opinion of t h e Court.
          This appeal by p l a i n t i f f is from a judgment on a jury verdict f o r
the defendant entered i n t h e d i s t r i c t court of the sixteenth judicial
d i s t r i c t , Custer County.   The case arose from personal i n j u r i e s sustained
by the p l a i n t i f f i n an automobile accident which occurred i n a shopping
center parking l o t .
          On December 13, 1969, s h o r t l y a f t e r noon, p l a i n t i f f was driving
h i s Vol kswagen Micro-bus on the Miles City Plaza parking l o t heading i n a
northwesterly direction towards a stop sign adjacent t o U . S. Highway 10.
There was no curbing separating the parking l o t from t h e highway, and a
stop sign was located midway along the parking l o t so c a r s could d r i v e by
i t on e i t h e r side.
          Defendant was driving along Highway 10 and turned off onto the
parking l o t before reaching the stop sign, heading i n a southwesterly d i r e c -
tion.    P l a i n t i f f ' s vehicle was traveling along the parking l o t toward the
highway and was approaching the s t o p sign.             The paths of both c a r s were a t
an angle t o each other and a t an angle t o the highway and intersected on
t h e l o t a t a point approximately 30 f e e t from the highway.              A t t h a t point
p l a i n t i f f ' s bus ran i n t o the l e f t s i d e of defendant's car.   P l a i n t i f f was
tossed about inside his vehicle .and received several bumps on his sku1 l                         .
He now s u f f e r s from subluxation of a cervical vertebra, more commonly known
as "whiplash".
          The driving conditions a t t h a t time were c l e a r and dry.              The s t o r e
buildings were q u i t e f a r back from the highway so the area where t h e c a r s
collided was generally used f o r access r a t h e r than f o r parking.                In f a c t ,
both p a r t i e s i n t h i s case were using the parking l o t as a thoroughfare.                     In
addition, the parking l o t did not have lanes of t r a f f i c marked although
p l a i n t i f f was heading i n the direction of the general flow of t r a f f i c leav-
ing t h e shopping center.         A t the point of impact, t h e l o t i t s e l f was wide
open, the nearest obstruction being a gas s t a t i o n approximately 734 f e e t
away. There were no other moving vehicles in the immediate vicinity, nor
were there any eyewitnesses to the collision itself except for the two
drivers involved.
        Expert testimony indicated that defendant should have traveled a
distance of about 45 feet between the point where he left the highway and
the point of impact in approximately one and one-half seconds, given his
speed as between 20 and 25 miles per hour. Plaintiff, who was slowing
down for the stop sign, testified that just prior to the collision he had
looked to his right--the direction from which defendant was approaching--
but did not see any traffic coming. He then looked to his left and while
still looking to the left felt the impact. Defendant did not see plaintiff's
vehicle until it was too late to avoid the collision.
        Plaintiff now appeals, raising two issues:
        (1 ) Sufficiency of the evidence to establ ish contributory negl igence
as a jury issue, and
        (2) Refusal of plaintiff's proposed instructions Nos. 9A and 10.
       With regard to the first issue the district court gave the following
instructions:
                             "INSTRUCTION NO. 10
        "Contributory negligence is negligence on the part of a
        claimant which contributed as a proximate cause to his
        injury. A person who is contributorily negl igent cannot
        recover for any injury or damage sustained by him."
                             "   INSTRUCT1ON NO. 1 1
        "You are instructed that with regard to the defense of
        contributory negl igence pl eaded by the defendants, you
        should note the following:
            "1. You are not to assume the existence of contribu-
        tory negligence in the absence of evidence, merely from
        its being p eaded
                   l     .
            "2. You are not to assume the existence of contributory
        negligence merely because you have been instructed on that
        subject.
            "3. The defendant has the burden of proving such
        defense by a preponderance of the evidence.
            "4. The degree of negligence, which must be estab-
        lished, must amount to an absence of ordinary care on
        Chester Ashton's part; and, in addition, must be a
        proximate cause of Chester Ashton's injuries.
            "5. If it is just as probable that Chester Ashton
        is free from negligence, or even if negligent, that his
        negligence was not a proximate cause of the injury, as
        it is that negligence on Chester Ashton's part was a
        proximate cause, then the defense of contributory negli-
        gence has not been established."
There is nothing objectionable about these instructions. The issue concerns
whether there was sufficient evidence to warrant the submission of the issue
of contributory negligence to the jury. That issue is governed by the follow
ing principles stated in Graham v. Rolandson, 150 Mont. 270, 283, 435 P.2d


       "Substantial credible evidence sufficient to warrant sub-
       mission of the issue of contributory negligence to the
       jury is governed by the same rules that are used in deter-
       mining the sufficiency of the evidence to support a ver-
       dict on that issue. Substantial credible evidence in
       that regard simply means such evidence as will convince
       reasonable men and on which such men may not reasonably
       differ as to whether it establishes the verdict on that
       issue; if all reasonable men must conclude that the evi-
       dence does not establish the verdict on that issue, then
       it is not substantial evidence. Morton v. Mooney, 97
       Mont. 1 , 33 P.2d 262; Adami v. Murphy, 118 Mont. 172,
       164 P.2d 150; Sands v. Superior Buildings Co., 136 Mont.
       531, 349 P.2d 314. A corollary of this rule is that
       whenever the surrounding circumstances make the story
       of a witness highly improbable or incredible, or whenever
       the testimony is inherently impossible, such evidence is
       not substantial and reversal should occur. Casey v.
       Northern Pacific Ry. Co., 60 Mont. 56, 198 P. 141;
       Sullivan v. Northern Pacific Ry. Co., 109 Mont. 93, 94
       P.2d 651."
At this point we note the duties of drivers on parking lots such as this are
governed by the general rules of negligence and not by the traffic laws of
the state. Collins v. Vansant,     Mont.     , 498 P.2d- 29 St.Rep. 341.
                                                       1192
Therefore neither vehicle in such a case has the right of way. Further, the
duty which attaches to both plaintiff and defendant is "to keep a lookout
and maintain such control as to make this lookout effective". Collins at p.
1200. True, this decision had not been announced at the time of trial of the
instant case, but such rule being based on general common law principles of
negligence applies here nonetheless.
        Thus, the question here is whether there is sufficient evidence to
warrant a finding by reasonable men that the plaintiff failed to act as a
reasonably prudent man would under the circumstances--i.e. whether he failed
to keep a proper lookout, and that such failure was a proximate cause of
the accident and plaintiff's resulting injuries.
        In the instant case there is ample evidence to warrant such finding
and require submission of the issue of contributory negligence to the jury.
The physical facts indicate that in the area where the accident occurred
the parking lot was wide open and vision was unobstructed. As defendant's
vehicle approached the point of impact from plaintiff's right, defendant's
vehicle was to the front and right of plaintiff. Even if it took but a
short time for defendant's vehicle to reach the point of impact after turn-
ing off the highway, the jury could conclude that had plaintiff kept a proper
lookout he would have seen defendant's vehicle in time to avoid the accident.
The jury could have reached this conclusion on either of two grounds:
        (1) That plaintiff looked but failed to see defendant's car which
was in his line of vision, or
        (2) That plaintiff failed to look to his right at all despite his
testimony at the trial to the contrary.
        However, plaintiff contends that any failure to keep a proper look-
out on his part could not have contributed as a proximate cause to the acci-
dent and his resulting injuries in any event. Plaintiff argues that there
was insufficient time to avoid the accident even had he seen defendant at
the time defendant turned into the parking lot from the highway. Plaintiff
points out that the distance from the point where defendant turned off the
highway into the parking lot to the point of impact was only about 45 feet;
that defendant's vehicle was traveling 20 to 25 miles an hour; that defend-
ant's car would travel that distance in 1% to 1% seconds; and that this amount
of time was insufficient to enable plaintiff to take evasive action to prevent
the accident.
        We note that the 45 foot distance between the point where defendant
turned off the highway and the point of impact was an approximation rather
than an exact figure. It was established by having defendant mark on a
scale drawing the point where he thought he left the highway and then cal-
culating the distance by the scale. Defendant testified in this respect as
follows:
           "Q. And as far as your testimony goes as to this partic-
           ular chart, you just turned some place between the A & W
           and the stop sign, is that correct? A. Yes, sir.
           "Q. Can you specifically say on that chart exactly where
           you turned? A. Not exactly, no.
           "Q. It was just some place in that area? A. Yes sir."
Thus the time it took defendant's car to travel from the point it left the
highway to the point where the accident occurred is incapable of precise
calculation and may have been somewhat greater than 1% seconds. In any
event, the evidence, viewed in the 1 ight most favorable to the prevailing
party (defendant), fails to establish an impossibility that plaintiff could
have avoided the accident had he seen defendant's approaching vehicle and
thus negate proximate cause as a matter of law.
        The fact that much of the evidence re1 ied on for the verdict was
presented by the plaintiff himself is of no consequence since in Collins we
clarified that even though the defendant has the burden of proving contribu-
tory negligence by a preponderance of the evidence, yet he may rely for this
                                               citing Blashfield Cyclopedia
on plaintiff's own evidence. Collins v. Vansant,' 498 P.2d 1197, 1200, /
of Automobile Law and Practice, Vol . 9C, g 6103. We note further that the
requirement of a preponderance of the evidence is satisfied when the evidence
that the plaintiff was contributorily negligent is stronger and more credible
than evidence that he was not, and does not require a showing that plaintiff
in fact was more negligent than defendant. The province of the Supreme Court
is to ascertain whether the evidence, viewed in the light most favorable to
the prevailing party, sustains the verdict. Batchoff v. Craney, 119 Mont.
157, 168, 172 P.2d 308. Since here we find ample evidence, the district
court properly submitted the issue to the jury.
        Regarding the second issue, plaintiff offered two instructions, both
 of which were denied. They were numbered plaintiff Is proposed instructions
Nos. 9A and 10, and read as follows:
                  "PLAINTIFF'S PROPOSED INSTRUCTION 9A
        "You are instructed that it was not necessary for plain-
        tiff to have determined which of the vehicles driving in
        a general westerly direction on Highway No. 10 might turn
        into the parking lot, His duty in this respect was per-
        formed when he looked to the right and saw no vehicles
        entering or about to enter the parking lot from that
        direction. The plaintiff was not required to look always
        to his right while approaching the stop sign as he had to
        avoid endangering traffic ahead of him or approaching
        from his left.11
                  "PLAINTIFF'S PROPOSED INSTRUCTION 10
        "You are instructed that the plaintiff was not required to
        look always to his right while approaching the stop sign as
        he had to avoid endangering traffic ahead of him or approach-
        ing from his left."
        These instructions were properly refused as comments upon the evi-
dence. See Thompson v. Yellowstone Livestock Commission, 133 Mont. 403, 324
P.2d 412. The general law embodied therein was adequately covered by general
instructions on the law of negligence and application of these principles
to plaintiff's theory of the case was properly left for jury argument.
        Plaintiff contends that the law contained in his proposed instructions
was taken from Jessen v. OIDaniel, 136 Mont. 513, 349 P.2d 107. There the
fol lowing instruction was given:
        "'It was not necessary for the plaintiff to have looked
        as far as his eyes could reach to his right before proceed-
        ing across the intersection. His duty in that respect was
        performed if he looked sufficiently far to his right to
        discover that there was no traffic approaching from that
        direction within a distance that would not be traversed by
        a vehicle driven at a speed permitted by law. He was not
        required to look always to his right while crossing or
        turning in the intersection as he had to avoid endangering
        traffic ahead of him or approaching from his left. ' '
                                                            I
That instruction was borrowed from the case of Taxicab Co. v. Ottenritter,
151 Md. 525, 135 A. 587, and was approved in Jessen.
          One major difference between this instruction and plaintiff's pro-
  posed instruction 9A is that in Jessen the jury was instructed that the
  duty was performed "if" the plaintiff looked sufficiently to the right,
  and not "when" he looked to the right as in the instant case, thus leav-
  ing the jury with the question of deciding whether in fact plaintiff did look
  sufficiently to his right, The use of the word "when" in the instant in-
  struction implies a finding by the court that plaintiff did in fact look
  sufficiently to his right to discharge his duty which was a hotly contested
  issue at the trial.
          Plaintiff's proposed instruction No. 10 would be misleading under
  the evidence in this case. It implies the existence of endangering traffic.
  It suggests that if plaintiff happened to be looking elsewhere in keeping
  a general lookout and failed to see defendant approaching from the right,
  plaintiff was within his rights. The situation here of approaching a stop
  sign in a parking lot is not comparable to the situation of crossing and
  turning in an intersection as in Jessen. For these reasons, the district
  court properly refused the offered instruction.
          The judgment o f the district court is affirmed.



                                                Associate Justice




  Mr. Justice John C. Harrison dissenting:
n         I, i ssent.
            d


/ ~ssjciateJustice                  - 8 -
