                                    No, 12054

        I N THE SUPREME COURT O T E STATE OF M N A A
                               F H            OTN

                                        1972



CLIFFORD COLLINS,

                            P l a i n t i f f and Respondent,

       -ITS   -
J , D, VANSANT,

                            Defendant and Appellant.



Appeal from:      D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
                  Honorable Robert S. K e l l e r , Judge p r e s i d i n g ,

Counsel of Record:

      For Appellant :

              Murphy, Robinson, Heckathorn and PhilJips, K a l i s p e l l ,
               Montana,
              I. James Heckathorn argued, K a l i s p e l l , Montana.

      For Respondent:

              McGarvey, Morrison, White & Hedman, W h i t e f i s h , Montana,
              Donald E. Hedman argued and Frank Morrison, Jr. argued, ,
               W h i t e f i s h , Montana.



                                                 Submitted:        March 14, 1972
                                                    Decided:qAy-'5        1z
                                                                           9'
Mr. Justice Gene B Daly delivered the Opinion of the Court.
                  .

     This is an action for personal injuries and property damage
arising out of a two car collision on a private parking lot of
a shopping center located at the west end of Libby, Montana.
The cause was tried to a jury in the district court of the
eleventh judicial district, county of Lincoln. At the close
of all evidence, defendant moved the court for a directed verdict
which was denied.   Following a jury verdict for plaintiff,
defendant moved for judgment notwithstanding the verdict or
in the alternative for a new trial.   Both motions were denied.
From the final judgment defendant appeals.
     The accident involved in this action occurred on September
30, 1968, at approximately 5:30 to 6:00 p.m., in the private
parking lot of ~osauer'sWc@phg Center.    The bufldings which
comprise the shopping center are in the form of a rectangle with
the longest dimension running in a general east-west direction
with the shops facing U.S.Highway No. 2, which likewise runs
in a general east-west direction. At the time of the accident
there were no curbs in place between U.S.Highway No. 2 and the
private parking lot, which is between the buildings and the
highway. This large parking lot contains three rows for parking
delineated by painted stalls.   There is one single row adjacent
to the buildings, double rows near the center of the lot and a
second set of double rows near the highway.   Between the parking
rows on the lot are lanes for driving which also run in a general
east-west direction and are parallel to the buildings.   Vehicles
when parked within the designated stalls face either north or
south.
     Proceeding from the west end of the shopping complex, there
is a drug store, a Gambles store, a grocery store and at the east
end of the complex is a collection of adjacent unidentified
stores. At the eastern end of the parking lot in a separate
building next to the highway is a service station. The parking
lot has an east-west length in excess of 300 feet.
     On   the day of the accident there were very few cars in the
parking lot and all were parked in the single row of stalls
fronting the shopping complex.   It was a sunny day, visibility
was good, and the sun was setting in the west approximately over
the Gambles store and the drug store at the west end of the row
of stores.
     Two automobiles were involved in the collision; one driven
by plaintiff, Clifford Collins; the other driven by defendant, J.
D. Vansant.   Both drivers were accompanied by their wives and
were on errands in the shopping center. ~efendant'sautomobile
entered the parking lot at the extreme east end near the service
station after making a left turn from the westbound traffic lane
of U.S. Highway No. 2.   He proceeded in a westerly direction
down the driving lane parallel to the buildings between the two
double rows of painted parking stalls.
     At about the same time, plaintiff's automobile made a right
turn from the eastbound traffic lane of U.S.Highway No. 2 and
entered the parking lot near the westerly end.   Plaintiff's
automobile proceeded to drive in a southerly direction toward
the row of stores by driving across the painted stalls next to
the highway intending to park in the middle row of painted parking
stalls, but not driving in a designated driving lane.
     It was as plaintiff crossed the traffic lane between the
two double rows of parking stalls that the automobiles collided
with the right front bumper and fender of defendant's automobile
striking the plaintiff's automobile at the door on the driver's
side, The angle of collision was less than 90 degrees and
both automobiles came to rest facing the same general southward
direction.
       It was estimated that defendant's automobile traveled
approximately 250 to 300 feet from the point of entry into the
lot at the east end to the point of collision; and that plaintiff's
automobile traveled a measured distance of 150 feet from the
highway at the point of entry into'the lot to the point of
collision.
       As to his entry and driving into the parking lot, plaintiff
Collins testified alternatively at various times in this action
as follows: In his pretrial deposition plaintiff stated that
he had not seen defendant from the time he, plaintiff, turned
off the highway; at trial he stated that he watched defendant
proceed on a straight course until he was two or three car lengths
from impact; at another point in the trial plaintiff testified
that he watched defendant "until he was about half way up in
the parking lot, but he was quite a ways from me when I turned
in."    The turn to which plaintiff made reference was not the
turn into the parking lot but was the turn into "where I was going
to park," However, at a subsequent point, plaintiff denied he
made any turn into a parking stall but rather that he was driving
directly into a parking stall and from the point of his last
sight of the defendant's automobile, plaintiff stopped watching
the defendant's automobile and concentrated on parking.
       As to his entry into and driving through the parking lot,
defendant testified that he never at any time saw the plaintiff's
automobile until the time of impact. Defendant testified that the
sun was in his eyes, it being to his front and to his left,
approximately over the west end of the shopping center which would
be either the Gambles store or the drug store.   Each party testi-
fied that the speed of his automobile was approximately five miles
per hour.
     We note here that at the time of the accident defendant was
driving his automobile without glasses in violation of a restriction
on his driver's license requiring glasses to be worn when operating
a motor vehicle.   Additionally, plaintiff did not have the sight
of his left eye, such condition having existed since 1940.
     Defendant presents four issues for review:
     1)   Failure to grant defendant's motions 'for dismissal and
for directed verdict at the close of evidence.
     2)   Failure of the court to enter judgment for defendant
notwithstanding the verdict, in accordance with defendant's motion.
     3)   Failure of the court to grant a new trial.
     4 Insufficiency of the evidence to support the verdict
      )
and judgment,
     ~efendant's first issue on appeal---failure to grant de-
fendant's motions for dismissal and for directed verdict at the
close of evidence, presents the substance of the legal issues of
defendant's appeal and it is to this issue that the Court directs
its attention.
     As both parties agree that statutory regulation of highway
traffic applies only on public ways and not on private property,
we need not explore that area, except to point out a discussion
on this point in 62 ALR2d 288, 52 which states:
     It
      In the few cases found involving intersectional
     collisions between moving vehicles within parking
     lots constituting private property, statutory rules
     of the road have been held technically inapplicable,
     and the duty and liability of the respective vehicle
     drivers has been determined under the application of
     basic principles of negligence law, with the aid, by
     analosy at least, of widely recognized rules of the
     road.
This seems to establish a satisfactory standard.
     Plaintiff argues the duty which attaches to defendant is to
keep a lookout and maintain such control as to make this lookout
effective.   Plaintiff must realize he is vested with an equal duty
and in breaching this duty negligence will attach. This has been
affirmed by this Court many times since the doctrine was estab-
lished in Autio v. Miller, 92 Mont, 150, 11 P.2d 1039.
     Plaintiff further argues that one of "the general rules of
the road" which may, by analogy, be applied to the present problem
is that the automobile on the right has the right of way. Plaintiff
then cites a number of intersection cases and relies heavily on
Flynn v. Helena Cab & Bus, Co., 94 Mont. 204, 21 P.2d 1105 and
Ward v. Clark, 232 N.Y. 195, 133 N.E. 443, cited in Flynn, to
establish his position as the favored driver and defendant's blind
and uncompromising adherence to the undeviating line of travel,
so to speak, to relieve plaintiff of any contributing proximate
cause in this collision.
     We decline to accept the analogy to the intersection situa-
tions relied upon by plaintiff.
     The testimony of plaintiff was that he did see the defendant's
automobile at the east end of the parking lot but that subsequently
he, plaintiff, concentrated on parking his own automobile without
further considering the location of the defendant's automobile.
It is of particular significance that it was the plaintiff's auto-
mobile that was crossing the parking lot ignoring the painted
driving lanes marked on the parking lot and at a diagonal path
to the ordinary flow of traffic in the t m f E b C . lanes between
the rows of painted parking stalls.    It was a clear case of derogation
of duty on the part of plaintiff in failing to obey the ordered
traffic pattern to which the defendant was complying, Plaintiff
seeks to attach the duty of lookout without obeying the driving
pattern which creates the duty.    Plaintiff's action constituted
contributory negligence regardless of the preexisting negligence
of defendant, if any, in failing to look. Accordingly, the district
court erred in not granting defendant's motion for a directed ver-
dict at the close of plaintiff's case.
          From the record it is clear that defendant raised the
    affirmative defense of contributory negligence of plaintiff.
    Blashfield Cyclopedia of Automobile Law and Practice, Vol. 9C,
    §   6103, states:
          "Even in those states where the burden of proving
          the issue of plaintiff's contributory negligence
          rests on the defendant, it may be established by
          the plaintiff's own evidence, and the defendant may
          take advantage of such showing on motion for nonsuit.
          "In such cases, the plaintiff proves himself out of
          court, and, if the motion is made in aR t time, judg-
          ment of nonsuit will be entered. * * *
    We agree and cite Knowlton v. Sandaker, 150 Mont. 438, 448,


          "Our conclusion that appellant failed to make a case
          which could go to the jury is buttressed by the long-
          established rule in Montana that, '"The plaintiff has
          made out a prima facie case when his evidence dis-
          closes injury to himself and that the negligence of
          the defendant was the proximate cause of it. [Citing
          previous cases.] It is the rule, also, that when the
          circumstances attending the injury, as detailed by the
          plaintiff's evidence, raise a presumption that he was
          not, at the time in the exercise of due care, he has
          failed to make out a case for the jury. The burden
          is then upon him, and if he fails to introduce other
          evidence to remove the presumption, he is properly
          nonsuited." George v, Northern Pac, Ry. Co., 59 Mont.
          162, 171, 196 P. 869.' Stevens v. Waldorf-Hoerner Paper
          Products Co., 149 Mont, 306, 425 P.2d 832."
          Accordingly, the judgment is reversed and the cause dis-
                                           A
    missed.


                                    -/-; - - -
                                      -=; ---2
                                       Associate Justice




/       p i e f Justice




        Associate Justices,
