                                      No. 12243

       IM THE SUPREME COURT OF THE STATE OF MONTAEA
                                          1972



MARILYN J. DP,WE,

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



R. REX DALLEY, and t h e M N A A H I G H SCHOOL
                                 OTN
ASSOCIATION, a c o r p o r a t i o n ,

                              Defendants and Respondents.



Appeal from:        D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
                    Honorable Gordon R. B e n n e t t , Judge p r e s i d i n g .

Counsel o f Record:

    For A p p e l l a n t :

            Hughes, B e n n e t t and Alan F. C a i n , Helena, Montana.
            George T. B e n n e t t a r g u e d , l ? e l e n a , Montana.
            Kli-ne and N i k l a s , Helena, Montana.
            John R. K l i n e a r g u e d , H e l e n a , Montana.

    F o r Respondents:

            Gough, Booth, Shanahan and Johnson, Helena, Montana.
            Ward A . Shanahan and Ronald F. Waterman a r g u e d ,
             Helena, Montana.



                                                      Submitted:          O c t o b e r 26, 1972

                                                         Dec i-ded : DEC 2 6 1%
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
       This is an appeal by the plaintiff, Marilyn J. Dawe,
from an adverse jury verdict rendered in the district court of
Lewis and Clark County.
       The basis of Mrs. Dawe's claim for relief was an auto-
mobile accident, which occurred on February 27, 1970.    The lo-
cation of the accident was on the south or descending side of
Boulder Hill on Highway 91 in Jefferson County.    Both parties
were traveling to Butte, Montana on the day of the accident and
the road was icy and snowpacked. The Dalley vehicle first came
upon the Dawe vehicle on the north or ascending side of the hill.
Following the Dawe vehicle for approximately three-fourths of a
mile Dalley was able to see that Mr. Dawe was having difficulty
negotiating the hill.     The car would slow down, then speed up
again and was fishtailing. Dalley passed the Dawe vehicle but he
had to stop at the top of the hill to clear a windshield wiper.
At this point the Dawe vehicle passed the Dalley vehicle and both
proceeded down the hill.    Dalley was again able to determine
that Dawe was having trouble controlling his car.    Both drivers
testified that they were traveling no faster than 15 miles per
hour with Dalley testifying that he was trying to keep between
50 to 75 feet behind the Dawe vehicle.    Upon reaching a sharp
righthand curve the Dawe vehicle went out of control with the
front wheels colliding with the snow bank on the right side of
the road first and the rear end of the car sliding around to
hit the bank.   At this point Dalley first tried to turn to the
left to go around the car but was unable to do so because of
oncoming traffic.   Dalley then applied the brakes and slid into
the Dawe vehicle.   It is this impact that Mrs. Dawe contends
caused her injuries.    The physical damage to each car was slight
as they were both able to leave the scene of the accident under
their own power.
         There are three issues in this case for our consideration.
The first is whether it was proper for the trial court to instruct
the jury on "sudden emergency".
         In considering this issue we must determine if this was
a proper case for the use of the Usudden emergency" instruction.
Instruction No. 17 given by the trial court was as follows:
         "A sudden emergency exists when the driver of a motor
         vehicle is suddenly placed in a position of imminent
         peril, great mental stress, or danger, which situation
         has not been brought about by his own negligence, but
         in which instant action is necessary to avoid a
         threatened danger. But the driver must use that care
         which the ordinary prudent person would exercise under
         like or similar circumstances. One suddenly con-
         fronted with a peril through no fault of his own,
         who in attempting to escape does not choose the best
         or safest way should not be held negligent because
         of such choice, unless it was so hazardous that an
         ordinary prudent person would not have made (it)
         under similar circumstances."
         On reviewing such an instruction we must determine whether
it was error in light of the evidence contained in the record
which supports the instruction.       "The instruction must be taken
in connection with the evidence bearing on the matter referred
to   * * *."    Burns v. United States, 274 U.S. 328, 331, 71 L.Ed
1077, 47 S.Ct. 650.       The other requirement is that a party is
entitled to an instruction on       its   theory of the case and in
Gran v. Dasovic, 275 Minn. 415, 147 N.W.2d 576, 579, it is stated:
         "We are also of the opinion that the court did
         not err in instructing the jury with reference to
         the emergency doctrine. An instruction on this
         theory should also be given where it is consistent
         with the theory of one of the parties to the action
         and where the evidence submitted by such party would
         sustain a finding that he had been confronted with
         a sudden peril or emergency and acted under its
         stress."
The record in this case amply supports the instruction on both
grounds.       Dalley was following a car at a safe distance for the
 speed his car was traveling.    The Dawe vehicle suddenly went out
of control causing Dalley to take emergency action.     Also the
record clearly shows this was the theory of the defense in the
trial.     Following our own Montana rule as stated in Peabody v.
Northern Pacific Ry. Co., 80 Mont. 492, 498, 261 P. 261, on the
giving of the sudden emergency instruction, it should have been
given ;
       "If the evidence in this case were sufficient
     to warrant a reasonable conclusion that at the
     time in question the defendant Siege1 was con-
     fronted with a 'sudden emergency,' or that 'there
     was want of time in which to form a judgment,'
     under the circumstances, as they appeared to
     him, the court should have given the offered
     instruction." Emphasis supplied.
The second issue is whether the court should have allowed a
pharmacist to testify regarding the effects of taking a pain
killing drug by the plaintiff.
         During the trial of the cause the defense used the testi-
mony of a local pharmacist.     The purpose of the testimony was
to have an expert opinion on the dffect to a person of taking a
particular pain killing drug.    This expert testimony was object-
ed to by Mrs. Dawe's attorney on the ground that a pharmacist
was not a qualified expert to give such an opinion.
          It appeared that Mrs. Dawe suffered from back pain prior
to the accident and she testified that she occasionally took
Darvon 65 to relieve pain prior to February 27, 1970.    It further
appeared that Mrs. Dawe received a prescription on January 12,
1970 for 100 capsules of Darvon 65 and these had been mostly used
up so on the day of the accident the prescription had been re-
filled.    Medical testimony indicated Darvon 65 was a pain killer
with greater strength than aspirin but less than codine.
         The pharmacist called by the defense testified as to his
general background which included working for Eli Lilly and
Company, the manufacturers of Darvon 65, and he was asked about
the normal dosage of the drug and testified that the average
dosage was one capsule three or four times daily, which would be
every six to eight hours.     Mrs. Dawe's prescription was for
Darvon once every three hours, or twice the average dosage.
         Plaintiff claims that as a result of this testimony con-
cerning the effects of taking an overdose of the pain killing
drug prescribed for her prior to the time of the accident the
defense was allowed to argue to the jury that Mrs. Dawe's in-
juries were the result of that overdose.     However, in our read-
ing of the transcript, it becomes apparent the damaging testimony
was brought out by plaintiff on cross-examination.      She cannot
now come in and complain of this when the adverse result was of
her own making.      In a Montana case, Hogan v. Shuart, 11 Mont.
498, 504, 28 P. 969, where the party insisted the witness answer
the question and then claimed error because he did so, this Court
held :
         "We are unable to see any reason for complaint
         upon the part of the appellants, because they
         insisted upon their right to have the question
         propounded, and the answer is responsive to the
         same. "
We find no error here.
         The last issue concerns the alleged misconduct of de-
fendants' counsel.
         During the course of the trial the plaintiff wished to
use the deposition of Dr. Swenson of Salt Lake City, Utah.
Shanahan, counsel for Dalley, noted that there existed "no rea-
son   * * *   right now for offering it except as a grandstand."    Fur-
ther during cross-examination of plaintiff's expert witness by
Shanahan it was brought out that the witness and plaintiff's
counsel had worked together on the sales tax proposal.     Both of
these instances are charged by plaintiff as being misconduct
on the part of defendants' attorney.
      We do not agree with the contention that the actions of
defendants' counsel at the time of offering of the deposition
or in the cross-examination of plaintiff's witness are of a
character to constitute miscon    requiring a new
       The judgment is affirme
