                            No.   89-306
          IN THE SUPREME COURT OF THE STATE OF MONTANA




ART VENDER and MARY VENDER,
     plaintiffs and Appellants,                                                 .
-VS-                                                   T"                      CB
KEVIN D. STONE and ST. PAUL FIRE AND MARINE    INSURANCES
                                                        -
                                                        L
                                                                               C)

     Defendants and Respondents.                       2-. z
                                                       .
                                                       ,
                                                       -.              -
                                                                       J
                                                                                        71
                                                       ,       ,               w ;
                                                                                        v1
                                                                   -           7 3 w
APPEAL FROM:   District Court of the Eighth Judicial ~istki&,
               In and for the County of Cacade,       , , : 1-~            t


               The Honorable Joel Roth, Judge presidin~.,..--                       I
                                                                                    -

                                                           (                    4



COUNSEL OF RECORD:
          For Appellant:
               Richard F. Gallagher, Church, Harris, Johnson                                 &
               Williams, Great Falls, Montana
          For Respondent:
               Robert J. Emmons, Emmons    &   Coder, Great Falls,
               Montana
               Kevin D. Stone, Great Falls, Montana (Pro Se)

                                    Submitted:   September 20, 1990
                                      ~ecided: November 9, 1990
Filed:
Justice John C. Sheehy delivered the Opinion of the Court.


     This action arises out of a 1984 automobile accident in Great
Falls, Montana, involving vehicles driven by the plaintiff, Art
Vender, and the defendant, Kevin Stone.     The jury verdict in the
Eighth Judicial District Court, Cascade County, concluded that Art
Vender was damaged in the amount of $3,313.90, Mary Vender incurred
no damages, and Art Vender and Kevin Stone were each 50% negligent.
The Venders filed a motion for new trial. When the District Court
did not rule on the motion within the prescribed time, the Venders
appealed.    We reverse and remand for a new trial.
     Appellants present two issues for review:
     1.     Did the District Court err in instructing the jury on
comparative negligence?
     2.     Did the District Court err by disallowing oral testimony
of Art Vender's educational expenses and instructing the jury to
disregard Vender's previously admitted oral testimony of those
expenses?
     The collision occurred at the intersection of Twentieth Street
and Tenth Avenue South in Great Falls, Montana, on April 18, 1984,
at approximately 9:00 a.m.     Vender, alone in his station wagon,
approached the intersection traveling south on Twentieth Street.
The intersection is controlled by a traffic light.      When Vender
approached the intersection, the light was red, and one car ahead
of him was stopped waiting for the light to change. When the light
changed, Vender pulled into the intersection, following the car
ahead of him.   Vender intended to make a left turn east on Tenth
Avenue South.    Here is the testimony from Vender as to what
occurred:
     Q.  What did you see when you approached the intersection
     of Twentieth Street South and Tenth Avenue South? A.
     There was a red light for me at the time I approached the
     intersection, and a car was stopped ahead of me so I
     stopped..  ..
     A. (Witness steps down from the witness stand and uses
     pointer for counsel.) I was stopped with the front of
     my car approximately back here because of the car ahead
     of me. Then when the light turned green, I proceeded out
     with my car where I was stopped in this area because the
     first car made a left turn and the car from the south-
     -the first car there turned also, and then the other cars
     that were coming from the south, they were coming
     straight through, approximately three cars.
     Q. Alright. Stop there. Did you then have to wait for
     those cars coming straight through before you completed
     your turn?   A.    Yes.   I was stopped right in here
     approximately waiting for those other cars to go straight
     through so that I could eventually make a left turn.


     Q. Alright. Then three cars cleared and then what did
     you do? A. I was going to make a left hand turn but
     then that's when I was hit broadside from Mr. Stone.
     Q. From what direction were you hit?    A.   He was coming
     from the east. He was in this lane.
     At the time of this incident, Tenth Avenue South was laned for
two lines of traffic in each direction.     Defendant, Kevin Stone,
was driving a GMC four-wheel pickup west on Tenth Avenue South on
the inside lane of traffic.   He drove into the intersection, and
struck the stopped Vender vehicle on the driver's side.     Here is
his testimony respecting the accident:

    Q-   You have heard Mr. Vender's testimony of what
    happened on April 18, 1984, and how the accident
    occurred.  I would like you to tell the jury your
version, if you would, please, of what happened. A. I
was going down Tenth in the left lane west, and when
approaching the intersection I didn't see the light and
when I did look around, he was sitting in the middle of
the intersection and I turned and tried and looked beside
me to see if I could get over and it was kinda too late
and I was skidding--and skidded out into the intersection
and hit him in the left rear side.


Q. Was there anything in your windshield or on your dash
that obstructed your view of the road in front of you as
you were going west in the left lane? A. No.
Q.   Was there traffic in your lane of travel?    A.   No.

Q.   Between you and the intersection? A.   No.
Q. You had a clear view of the intersection; is that
correct? A. Yes.
Q. Now you told the jury you didn't see the light but
that you did skid so you must have seen the light at some
point and put on your brakes, is that correct? A. No.
I saw Mr. Vender.
Q. You never did see the light? A. No. I was trying-
-I was looking beside me and I was looking at him. I was
going to try to miss him. I never did look at the light.
Q. Did you see any other cars at the intersection or
stopped at the intersection. A. On Tenth Avenue going
west there was none  ...
Q.  Were there any cars any other place that you noticed?
A.  Only one I noticed was the green station wagon in the
intersection and it was--when I looked and made sure
there was nobody beside me that I could go around him,
it was too late and that was the only one I saw in the
intersection  ...
Q. I take it from your testimony that you didn't see the
red light that was in your lane of traffic. A. I didn't
see any light, no.
Q. You didn't know if the light was green, yellow or
red, is that true? A. True.
     Q. Well, clear that up for me then. A. I said I looked
     to the right with my foot on the brakes already. I was
     on the brakes as soon as I seen him.
     Q. Alright. A. And I looked to the right and looked
     back around at his car and it was just too late to move
     over. I had to hit him no matter what and if there had
     been somebody beside me, I would have hit them too.
     Q. Okay. You didn't have time to stop or to maneuver
     out so that you wouldn't hit him? A . There was no time
     to stop. There was no time to stop.
     Over   Vender's     objections,   the   District   Court   by   its
instructions, submitted to the jury the issue of the comparative
negligence of both Vender and Stone.          As a result, the jury
returned a special verdict and attributed 50% of the cause of the
accident to the negligence of Stone and 50% attributable to Art
Vender.
     There was other evidence in the case that the traffic light
controlling the intersection, insofar as Twentieth Street was
concerned, had sensors buried at the approaches to the intersection
which triggered a change of light for traffic on Twentieth Street
from red to green.     The testimony indicated that regardless of the
number of vehicles that may have come to a stop waiting on
Twentieth Street to cross the intersection, the maximum green time
for that crossing would be 27 seconds plus 3 seconds for the amber
light.
     There is no direct evidence in the record as to whether the
traffic light facing Stone was red or green when he entered the
intersection. The effect of Vender's testimony is that he entered
the intersection on Twentieth Street on a favorable green light and
that he did not see if the light changed before the moment of
collision. Stone argues that Vender's light must have changed from
green to amber to red before the collision, based on the testimony
that the traffic light facing Vender would be green for no longer
than 27 seconds, with an amber light of 3 seconds. Vender's
argument assumes without other evidence that the number of vehicles
on Twentieth Street could not cross the intersection in that period
of time.
     It is our view of the law, however, when applied to the facts
of this case, that Vender was lawfully in the intersection, and
that Stone, even if the traffic light had turned green in his favor
at the time he entered the intersection, had a duty to keep a
lookout so as to see and observe the traffic lights and the stopped
car of Vender in the intersection, and to control his speed in such
manner as to be able to avoid colliding with the Vender vehicle.
On that basis, as a matter of law, Stone was solely responsible for
the accident.    An examination of the statutes, and the law
applicable thereto will explain why.
     The key statute to be looked at is 5 61-8-207, MCA.         It
provides :
     61-8-207.   Traffic-control sisnal lesend.     Whenever
     traffic is controlled by traffic-control signals   . ..
     the following colors  ...   shall indicate and apply to
     drivers of vehicles and pedestrians as follows:
     (1) Green alone or "Gow:

     (a) Vehicular traffic facing the signal may proceed
     straight through or turn left or right unless a sign at
     such place prohibits either such turn. But vehicular
     traffic, includins vehicles turnins risht or left, shall
     yield the risht-of-way to other vehicles  ...   lawfully
     within the intersection ...   at the time such signal is
     exhibited. (Emphasis added.)
     Applying the foregoing statute to the facts of this case, Art
Vender,      traveling   south   on   Twentieth    Street,   entered   the
intersection when the light turned green, relying on the statute
that he could proceed straight through or turn left.              He was
required to yield the right-of-way to other vehicles lawfully
within the intersection.
     Stone, on the other hand, if the light had turned green when
he had entered the intersection, was obliged to yield the riqht-
of-way nevertheless to all other vehicles lawfully within the
intersection.
     A further statute required Vender, intending to make a left
turn within the intersection, to yield the right-of-way to vehicles
coming from the opposite direction.               Section 61-8-340, MCA,
provides :
     61-8-340. Vehicle turnins left at intersection. The
     driver of the vehicle within an intersection intending
     to turn to the left shall yield the riqht-of-way to any
     vehicle approachins from the opposite direction which is
     within the intersection or so close thereto as to
     constitute an immediate hazard, but said driver, having
     so yielded and having given a signal when and as required
     by this chapter, may make such left turn, and the drivers
     of all other vehicles approaching the intersection from
     said opposite direction shall yield the right-of-way to
     the vehicle making the left turn. (Emphasis added.)
     When Art Vender entered the intersection driving south, he was
faced with at least four vehicles also entering the intersection
from the opposite direction, three of which were proceeding
straight north.     Because Vender intended to turn to the left, it
was his duty under 5 61-8-340, to yield the right-of-way to those
vehicles in the intersection or approaching so closely so as to be
an immediate hazard.   All of this, under the facts of this case,
Art Vender properly performed.
     Moreover, Art Vender had properly stopped his automobile in
the intersection under the facts of this case.    Section 61-8-354,
MCA, provides:
     61-8-354. Stoppins, standinq   or parkins prohibited in
     specified places-exceptions.   (1) No person shall stop
     ...    a vehicle, except ...    (2) . . .when necessarv
     to avoid conflict with other   traffic    . . .   (Emphasis
     added. )
     Vender entered the intersection and intended to make a left -
hand turn, which he had a right to do.        He was prevented from
proceeding immediately through his left-hand turn by the approach
of vehicles coming in the opposite direction on Twentieth Street.
It was I1necessary to avoid conflict with other traffic" that he
stop in the intersection.    He was, therefore, lawfully in the
intersection when he was struck broadside by the oncoming vehicle
driven by Kevin Stone. Vender testified that he did not see Stone
before the collision or his vehicle, but Vender's right to stop in
the intersection in the circumstances is undoubted under the law.
     The driver of an automobile which enters an intersection
     on the green light ordinarily is entitled to continue
     until he clears the intersection, even though the green
     changes to amber and the amber to red before he completes
     the crossing, while traffic awaiting on intersecting
     streets the change of lights must ascertain whether the
     intersection is clear before starting to cross.
Blashfield, Automobile Law and Practice, Vol. 3, p. 96, 5     114.42



     Even if Stone had a green light in his favor as he entered the
intersection, he was still required under 5 61-8-207, MCA, to yield
the   right-of-way      to   other      vehicles   lawfully        within   the
intersection. As the Washington Court said in Lanegan v. Crauford
(Wash. 1956), 304 P.2d 953, 955:
      A green light is not a command to go, but only a limited
      permission to pass, having due regard for those already
      lawfully in the intersection. (Citing cases.)
      Vehicles rightfully in a light-controlled intersection
      have a reasonable opportunity to clear the intersection.
      (Citing cases. )
      Such is the imperative command of the statute, Laws of
      1951, Ch. 56, 5 3, p. 165, R.C.W. 46.60.230:
             ...  But   vehicular    traffic,    including
            vehicles turning right or left, shall yield
            the right of way to other vehicles and to
            pedestrians lawfully in the intersection or an
            adjacent crosswalk at the time such signal is
            exhibited   ...

      Stone's    duty   to   keep   a   lookout    as    he   approached    the
intersection and entered it is well settled in Montana law.                 His
duty to keep a lookout implied his duty to see what was in plain
view, and what should be seen in the exercise of reasonable care.
Johnson v. Herring (1931), 89 Mont. 156, 295 P. 1100.                 A driver
must look not only straight ahead but laterally ahead, Autio v.
Miller (1932), 92 Mont. 150, 11 P.2d 1039.              A person is presumed
to see, and therefore to know, that which he could see by keeping
a lookout.      McNair v. Berger (1932), 92 Mont. 441, 15 P.2d 834;
Marinkovich v. Tierney (1932), 93 Mont. 72, 17 P.2d 93.
      The    failure    of   a   motorist    approaching       a    controlled
intersection to see what was plainly visible or obviously apparent
makes him chargeable for failure to see what he should have seen
had he been in the exercise of reasonable care.    Drury v. Palmer
(Idaho 1962), 375 P.2d 125; Hughes v. Hooper (Utah 1967), 431 P.2d


     It is not to be doubted that the primary duty of lookout
a light-controlled intersection rests upon the disfavored driver,
but this does not excuse the favored driver from his duty of
reasonable care in approaching and entering the intersection,
including the duty owing here to other traffic.     In this case,
Stone contends that Vender failed to keep a lookout because he
didn't see Stone before the collision.    Granting this, Vender's
lack of lookout was not a proximate cause of the accident because
up to and at the moment of collision, his vehicle was in a helpless
position as far as approaching traffic from Stone's direction is
concerned.
     The evidence is clear that Stone not only failed to keep a
lookout, but failed to obey the basic speed rule contained in    Cj 61-

8-303, MCA.   That rule is stated as follows:
     61-8-303. Speed restrictions--basic rule. (1) A person
     operating or driving a vehicle ...    on a public highway
     of this state shall drive it in a careful and prudent
     manner, and at a rate of speed no greater than is
     reasonable and proper under the conditions existing at
     the point of operation,. ..  and he shall drive it so as
     not to unduly or unreasonably endanger the life, limb,
     property, or other rights of a person entitled to the use
     of the street or highway.



    (5)   The driver of a vehicle shall, consistent with
    subsection (I), drive at an appropriate reduced speed
    when approaching and crossing an intersection   ...  and
    when a special hazard exists with respect to pedestrians
       or other traffic or by reason of weather or highway
       conditions.
       The foregoing applicable statutes cannot be construed in any
other way but that Vender was lawfully in the intersection at the
time that his vehicle was struck by the Kevin Stone vehicle, and
that    Kevin   Stone   alone   was     driving   negligently,    if   not
recklesslessly, to cause the collision.
       Only in exceptional circumstances will a favored driver be in
fault for a collision in a light-controlled intersection, when the
favored driver could have avoided the accident by exercising the
slightest observation and       care.      Smith v.    Regional   Transit
Authority (La. App. 4, 1990), 559 So.2d 995.          When, as here, the
facts are undisputed and susceptible of only one inference,
questions of fact become a matter of law. We determine that Kevin
Stone was solely responsible for the collision which occurred in
this case.
       It is necessary, therefore, for us to reverse the judgment of
the District Court and remand this cause for a new trial on the
issue of damages, the liability having been determined as a matter
of law.
       The second issue raised by the appellants relates to the
denial of evidence by the District Court in the first trial on
damages issues. The question of admissible testimony arose in the
first trial because of discovery complications upon which the
District Court ruled to eliminate the evidence.            Since we are
remanding this cause for a new trial, we assume that proper
discovery will be made before the next trial and we have no need,
therefore, to determine the damages questions raised by the second
issue of the appellants.

     Cause remanded for new trial in the District Court on the
issue of damages only.



                                      i
                                                 Justice
We Concur:          ,
                    /
      4,
       T
       dhief Justice
                           k




         Justices
Justice Diane G. Barz dissenting.
     I dissent.
     A jury found that Art Vender was fifty percent negligent.   On

appeal we are limited to a determination of whether the verdict is
supported by substantial credible evidence.       A great deal of
evidence indicated that while Vender entered the intersection with
a green light, the light may have changed while Vender was stopped
in the intersection waiting for four or five northbound cars to go
by before he could attempt a left turn.
          The jury was not compelled to believe
          plaintiff Is testimony.   The jury viewed the
          evidence, heard and viewed the witnesses, and
          entered its verdict. To permit the undoing of
          this verdict by affirming the trial court
          decision granting a new trial, would, in the
          language of Nelson v. Hartman (1982), [I991
          Mont. [295], 648 P.2d 1176, 1179, 39 St.Rep.
                            .
          1409, 1412, l l . .  create a bench supremacy
          and sap the vitality of jury verdicts."
          (Emphasis added.)
Maykuth v. Eaton (1984), 212 Mont. 370, 372-73, 687 P.2d 726, 727.
     The jury in the instant case obviously had trouble believing
Vender's testimony on liability and damages.      The jury verdict
should be affirmed.                       /-


                                     'Id -JJ-
                                          /&
                                               Justice

     Justice Fred J. Weber and Justice R.C. McDonough join in the
foregoing dissent of Justice Diane G. Barz.
