                                  No. 12435

        I N THE SUPREME C U T O THE STATE OF MONTANA
                         OR    F

                                      1973



JOHN A. ELLIOTT,

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



R S U M. HANSEN,
 AM S

                         Defendant and Respondent.



Appeal from : D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
              Honorable W. W. Lessley, Judge p r e s i d i n g .

Counsel of Record:

     For Appellant :

            Morrow, Nash and Sedivy, Bozeman, Montana
                                           .
            Edmund P. Sedivy , Jr argued, Bozeman, Montana

     For Respondent :

            Berg, Angel, Andriolo and Morgan, Bozeman, Montana
            Richard Andriolo argued, Bozeman, Montana



                                                Submitted:            December 4 , 1973
M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court.

          This i s an a c t i o n f o r damages s u f f e r e d i n an automobile
collision.          The a c t i o n was t r i e d i n t h e d i s t r i c t c o u r t of t h e
e i g h t e e n t h j u d i c i a l d i s t r i c t , G a l l a t i n County.   P l a i n t i f f , John
A. E l l i o t t a p p e a l s from t h e f i n a l judgment of t h e d i s t r i c t c o u r t

e n t e r e d on a j u r y v e r d i c t i n f a v o r of defendant Rasmus M. Hansen.
         A t approximately 8:30 a.m.                   on June 11, 1970, automobiles
d r i v e n by t h e l i t i g a n t s h e r e i n c o l l i d e d n e a r Bozeman, Montana,
a t t h e i n t e r s e c t i o n of U.S.      Highway 191 and S t a t e Highway 291,
known l o c a l l y a s t h e       o our    Corners".          The Four Corners i n t e r s e c t i o n
was c o n t r o l l e d by a s t o p s i g n a t each of i t s f o u r e n t r a n c e s ; a
f l a s h i n g r e d l i g h t was suspended over t h e c e n t e r of t h e i n t e r -
s e c t i o n ; and on t h e r o a d s approaching from t h e south and from
t h e e a s t ( t h e roads upon which Hansen and E l l i o t t , r e s p e c t i v e l y ,
were t r a v e l i n g ) f l a s h i n g yellow l i g h t s were p o s i t i o n e d about 1,000
f e e t ahead of t h e "four way" s t o p s i g n s .                 Weather c o n d i t i o n s were
c l e a r on t h a t morning and v i s i b i l i t y was good.                  The t e r r a i n    and
surroundings a t t h e Four Corners were such t h a t from t h e s t o p s i g n
a t e i t h e r t h e south o r e a s t e n t r a n c e t h e r e was an u n r e s t r i c t e d
view of o t h e r approaching c a r s p r a c t i c a l l y a s f a r a s t h e eye could
see.
          E l l i o t t t e s t i f i e d t h a t p r i o r t o t h e a c c i d e n t he approached
t h e i n t e r s e c t i o n headed w e s t , made a complete s t o p a t t h e s t o p

s i g n , looked i n a l l d i r e c t i o n s and, s e e i n g no c a r s coming o r stopped
a t t h e o t h e r s t o p s i g n s , e n t e r e d t h e i n t e r s e c t i o n and began making
a l e f t turn.        Quoting from ~ l l i o t t ' stestimony:

          "Q. Was anybody stopped a t any of t h e o t h e r f o u r
          s t o p s i g n s ? A . No.
         "Q.       Well, then what d i d you do? A . I proceeded i n t o t h e
         i n t e r s e c t i o n , and then turned l e f t t o go south t o West
         Yellowstone.
          "Q.      A t anytime a f t e r you had l e f t t h e s t o p s i g n , d i d
          you e v e r observe M r .           an sen's v e h i c l e ? A. No. n o t
          u n t i l I s t a r t e d t o t u r n l e f t and looked s o u t h down t h e
          road.
      "Q.   What did you see? A.     I saw this car coming at me.
      11Q. This car was coming from south to north; is that
      correct? A. That is correct. 11
      Hansen testified that prior to the accident he approached
the intersection headed north, made a complete stop at the stop
sign, looked in all directions and, seeing no cars approaching
or stopped at the other stop signs, entered the intersection in-
tending to proceed straight through and continue north.     Quoting
from ans sen's testimony:
      II
       Q. Were there any cars in the intersection when
      you started up? A. No, not when I started; nope.
      "Q. Then what occurred as you entered the inter-
      section and were moving through the intersection?
      A. Well, I just got started and then I seen this
      car coming. And I swerved to the right and tried
      to avoid hitting him straight on.
      "Q. Now, when you saw this car, did you have much
      time? A. I didn't have probably one or two seconds.
      "Q.   In other words, it was almost instantaneous?
      A.     hat's right.
      "Q. What did you do as soon as you saw it? A. I
      kind of braced myself. I suppose I must have stepped
      down on the accelerator a little more and I swerved
      to the right as quick as I could.
      I IQ. What was the purpose of bracing yourself? A.Wel1,
      it is just a habit, I guess; I don't know. You knew
      there was going to be a collision of some kind."
      Elliott estimated hisspeed at the time of the collision
at ten to fifteen miles per hour.    Hansen in answer to a pretrial
interrogatory stated that his speed was five to ten miles per
hour at the time of the collision. However, Hansen testified at
trial that he had not looked at his speedometer immediately prior
to the collision and did not actually know his speed at that time.
He testified that subsequent to answering the interrogatory and
prior to trial, he had made practice runs at the Four Corners
intersection in a similar car, and based on those experiments he
revised his estimate of his speed at the time of impact to twenty
to twenty-five miles per hour.     Hansen also testified the collision
impact knocked him to the floor of his car and may have caused
him to continue holding the accelerator down after the collision.
         Montana Highway Patrolman Austin Carey, who i n v e s t i g a t e d
t h e a c c i d e n t , t e s t i f i e d t h e c a r s impacted i n t h e n o r t h - e a s t
quadrant of t h e i n t e r s e c t i o n n e a r t h e c e n t e r .       The E l l i o t t c a r
was s t r u c k n e a r l y broadside on t h e l e f t s i d e by t h e l e f t f r o n t
end of t h e Hansen c a r .           The l e f t s i d e of t h e E l l i o t t c a r was
demolished and t h e c a r was spun around n e a r l y 80 degrees, coming
t o r e s t near t h e c e n t e r of t h e i n t e r s e c t i o n .     The l e f t f r o n t end
of t h e Hansen c a r was s e v e r e l y damaged, t h e fender and bumper
being bent u n t i l they impinged on t h e l e f t f r o n t t i r e .                      The only
s k i d mark a t t h e scene of t h e accident was l e f t by t h e l e f t f r o n t
t i r e of t h e Hansen c a r , which t r a v e l l e d on about f o r t y - n i n e f e e t
t o t h e n o r t h e a s t corner of t h e i n t e r s e c t i o n , crashed through and
came t o r e s t atop a cement and s t e e l guard r a i l .
         Both Hansen and h i s w i f e , who was t h e only passenger, were
shaken but n o t s e r i o u s l y i n j u r e d .      E l l i o t t , alone i n h i s c a r ,
s u s t a i n e d a severe i n j u r y t o h i s l e f t h i p which r e q u i r e d s u r g i c a l
replacement of t h e h i p j o i n t .
         The c a s e was t r i e d t o a j u r y , and judgment was entered on
a v e r d i c t i n favor of defendant Wansen.                    From t h a t judgment and
from t h e t r i a l c o u r t ' s d e n i a l of motions f o r a judgment notwith-
standing t h e v e r d i c t and f o r a new t r i a l , p l a i n t i f f E l l i o t t b r i n g s
t h i s appeal, assigning t h e s e i s s u e s :

         (1)     Did t h e t r i a l c o u r t e r r i n g i v i n g i n s t r u c t i o n
No. 7 on c o n t r i b u t o r y negligence?

         (2)     Did t h e t r i a l c o u r t e r r i n giving i n s t r u c t i o n
No. 9 on continuing and concurring negligence?

         (3)     Did t h e t r i a l c o u r t e r r i n r e f u s i n g p l a i n t i f f ' s
o f f e r e d i n s t r u c t i o n 6 concerning E l l i o t t ' s r i g h t t o assume
Hansen would use reasonable c a r e ?
         (4)     Did t h e t r i a l c o u r t e r r i n r e f u s i n g t o g r a n t
p l a i n t i f f ' s motions f o r a new t r i a l , and judgment notwith-
standing t h e v e r d i c t ?
         Concerning t h e f i r s t appeal i s s u e , p l a i n t i f f r e l i e s h e a v i l y
on DeVerniero v. Eby, 159 Mont. 146, 148, 496 P.2d 290, i n con-
t e n d i n g t h a t a c o n t r i b u t o r y n e g l i g e n c e i n s t r u c t i o n w a s improper
under t h e f a c t s of t h e i n s t a n t c a s e .          An important f a c t u a l
d i s t i n c t i o n e x i s t s between t h e c a s e s . I n DeVerniero:
          II
           The i n t e r s e c t i n g s t r e e t s were o f e q u a l s t a t u s and
          were n o t marked w i t h s t o p s i g n s , s t o p l i g h t s o r
          warning approach s i g n a l s .            *9
                                                       :

          II
            It i s uncontested t h a t i n such a s i t u a t i o n a s e x i s t e d
          here---where two v e h i c l e s a r e e n t e r i n g o r approaching
          an i n t e r s e c t i o n from d i f f e r e n t highways a t approximately
          t h e same time, t h a t under Montana s t a t u t e s e c t i o n 32-2170,
          R.C.M.        1947, and s e c t i o n s 21-145, and 21-170, B i l l i n g s
          T r a f f i c Code, t h e d r i v e r of t h e v e h i c l e t o t h e l e f t i s
          r e q u i r e d t o y i e l d t h e r i g h t of way t o t h e v e h i c l e on
          the r i g h t . II
          Here, t h e i n t e r s e c t i o n involved was c o n t r o l l e d by "four
way" s t o p s i g n s and t h e procedure of approach and e n t r y i n t o t h e
i n t e r s e c t i o n was never d e f i n i t e l y e s t a b l i s h e d .
          S e c t i o n 32-2170, R.C.M.            1947, provides:
          11
           Vehicle approaching o r e n t e r i n g i n t e r s e c t i o n .         (a)
         When two (2) v e h i c l e s e n t e r o r approach an i n t e r s e c t i o n
         from d i f f e r e n t highways a t approximately t h e same t i m e ,
         t h e d r i v e r of t h e v e h i c l e on t h e l e f t s h a l l y i e l d t h e
         r i g h t of way t o t h e v e h i c l e on t h e r i g h t .
          "(b) The r i g h t of way r u l e d e c l a r e d i n paragraph ( a )
          i s modified a t through highways and otherwise a s here-
          i n a f t e r s t a t e d i n t h i s a r t i c l e . 11
          S e c t i o n 32-2172 (b) , R.C.M,           1947, provides:

         "(b) The d r i v e r of a v e h i c l e s h a l l l i k e w i s e s t o p i n
         obedience t o a s t o p s i g n a s r e q u i r e d h e r e i n a t a n
         i n t e r s e c t i o n where a s t o p s i g n i s e r e c t e d a t one (1)
         o r more e n t r a n c e s t h e r e t o although n o t a p a r t of a
         through highway and s h a l l proceed c a u t i o u s l y , y i e l d i n g
         t o v e h i c l e s n o t so o b l i g e d t o s t o p which a r e w i t h i n
         t h e i n t e r s e c t i o n o r approaching s o c l o s e l y as t o
         c o n s t i t u t e a n immediate hazard, b u t t h e n may proceed."
          S e c t i o n 32-2166, R.C.M,           provides:
         "No person s h a l l s t a r t a v e h i c l e which i s stopped,
         s t a n d i n g , o r parked u n l e s s and u n t i l such movement
         can b e made w i t h r e a s o n a b l e s a f e t y . I I
         The g e n e r a l r i g h t of way r u l e s s t a t e d i n s e c t i o n 32-2170,
R.C.M.     1947, a r e modified by s e c t i o n 32-2172, R.C.M.                       1947, s o
t h a t t h e v e h i c l e approaching from t h e r i g h t t h a t would o t h e r w i s e
have t h e r i g h t o f way l o s e s t h e p r e f e r e n c e because i t i s r e q u i r e d
t o stop.       There b e i n g no p r e f e r e n t i a l r i g h t of way a f f o r d e d a
d r i v e r when r e q u i r e d t o s t o p by s e c t i o n 32-2172, then a d r i v e r
approaching a f o u r way s t o p has a s t a t u t o r y duty t o s t o p , followed
by a statutory duty to exercise ordinary care as he proceeds into
or through the intersection, Sections 32-2166 and 32-2195(d),
R.C.13.       1947; Allstate Ins. Co. v. Angelo, 7 Ohio App.2d 149, 219
N.E.2d        218.
          Certainly, then, a factual issue existed at trial, Both
Elliott and Hansen had the duty to make a full stop before entering
the intersection and to exercise ordinary care to determine that
it was reasonable safe to proceed into the intersection.                Sullivan
v. Northern Pac. Ry. Co., 109 Mont. 93, 94 P. 2d 651.               Under the
facts here, neither Elliott nor Hansen had a statutory right of
way or        If
                   referr red"   or "favoredf'driver status.
          Elliott also contends that            an sen's act in accelerating
his vehicle rather than applying his brakes immediately prior to
the collision amounts to an unforeseeable intervening or super-
seding cause which ~ ~ o u l d
                            break the chain of proximate causation
as to any negligence committed by Elliott.                This contention has
merit, and the record reflects that the trial court granted in-
structions on the concept of "proximate cause" and "last clear
chance".            However, we find the evidence before the jury was by
no means so overk~helmingthat reasonable minds could not draw
different conclusions as to whether the acceleration only
instantaneously preceded the already inevitable collision or
whether it was the effective cause of the collision.
          We hold the jury was properly instructed on the issue of
contributory negligence.
          Concerning the second appeal issue, defendant's proposed
instruction 19, given as court's instruction No. 9, reads:
          I
          '
           You are instructed that the plaintiff is not entitled
          to recover from the defendant under the doctrine of last
          clear chance as previously defined to you in these in-
          structions if you find that the plaintiff was negligent
          and that plaintiff's continued negligence up to the
          time of the accident and concurred as a proximate cause
          thereof. I I
          ~efendant'sbrief d5sclos~sthat the legal authority relied
on in framing this instruction was Gustafson v. Northern Pac, Ry.
Co., 137 Mont. 154, 160, 351 P.2d 212, where this Court stated:
      "Defendant cites Pollard v. Oregon Short Line R.
      Co., 92 I4ont. 119, 11 P.2d 271, and Mihelich v.
      Butte Electric Ry., 85 Mont. 604, 281 P. 540, as
      authority for the contention that contributory
      negligence is a defense in a last clear chance
      case. But these cases are not properly so con-
      strued. They do point out that should a plaintiff
      continue to be negligent up to the time of the
      accident, so that such negligence is a concurring
      proximate cause of his own injury then the theory
      of the last clear chance has no application.     ik *

      "From what has been said, it is apparent that what
      is commonly understood as 'contributory negligence'
      is no defense in a last clear chance case, since
      this theory concedes plaintiff was negligent in
      putting himself into the position of peril at the
      outset. However, a defendant may defeat plaintiff's
      claim by proving that plaintiff was negligent up to
      the time of the injury and that his negligence was
      a concurring proximate cause. I I
      The trial court's instruction No. 9 was a correct statement
of the law.   Hannigan     Northern Pacific Ry. Co.,
384 P.2d 493; Prosser Torts 4th Ed. 5 66, p. 431.      The fact of
~lliott's continuing and concurring negligence was fairly at
issue upon the evidence before the jury, as it appears possible
that Elliott failed to observe the Hansen vehicle or apply his
brakes practically until the collision occurred.
      In light of the fact that Elliott introduced the "last
clear chance" issue in his proposed instruction 23 (given as
court's instruction No. 8 , we find that court's instruction
                         )
No. 9 was a fair and correct statement of the law and appro-
priate under the evidence.
      The third appeal issue concerns plaintiff's proposed
instruction 6 refused by the trial court.    The instruction was
taken from Jessen v. ~'Daniel,136 Mont. 513, 349 P.2d 107, and
states the general principle that a person who is exercising
ordinary care has a right to assume that others will do likewise.
The instruction as worded was a correct statement of a legal
principle and would not have constituted error had the trial court
elected to permit it.    However,    light of the factual dispute
as to whether either of the litigants was exercising ordinary
are, the applicability of this instruction was questionable at best.
         Reviewing t h e t h i r t y i n s t r u c t i o n s a c t u a l l y given by t h e
t r i a l c o u r t , we f i n d t h a t t h e i s s u e s of l e g a l duty, negligence,
proximate cause and damages were w e l l defined and explained,
hence t h e t r i a l c o u r t was w i t h i n t h e l e g i t i m a t e e x e r c i s e of i t s
sound d i s c r e t i o n i n r e f u s i n g p l a i n t i f f ' s proposed i n s t r u c t i o n 6.
Bjorndal v, Lane, 157 Mont. 543, 487 P.2d 527; Lamb v. Page,
153 Mont. 171, 455 P.2d 337,
         p l a i n t i f f ' s f o u r t h i s s u e concerns t h e t r i a l c o u r t ' s d e n i a l
of p l a i n t i f f ' s motions f o r judgment notwithstanding t h e v e r d i c t
and f o r a new t r i a l .        W f i n d t h i s c a s e was w e l l t r i e d ; t h e j u r y
                                    e
was f u l l y and f a i r l y i n s t r u c t e d .   The evidence, although con-
f l i c t i n g , was s u f f i c i e n t i f viewed i n t h e l i g h t most favorable
t o the prevailing party i n the d i s t r i c t court t o sustain the
jury's verdict.            Gunderson v. Brewster, 154 Mont. 405, 466 P.2d
589; Jessen v. ~ ' ~ a n i e 136 Mont, 513, 349 P.2d 107,
                             l,
         The judgment i s affirmed.




                                                      .'    Justice




   Chief J u s t i c e




   Justices.


Mr.   J u s t i c e John Conway Harrison d i s s e n t i n g :
                       f-2
