                                         No. 12084

           I N THE SUPREME C U T O THE STATE O M N A A
                            OR    F           F OTN

                                            1972       ,




JOSEPH PACHEK,

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

           -vs   -
N R O CONCRETE CO.,
 OTN                           a corporation,

                                 Defendant and Appellant.



Appeal from:         D i s t r i c t Court of t h e Elghth J u d i c i a l D i s t r i c t ,
                     Honorable Truman G. Bradford, Judge p r e s i d i n g .

Counsel of Record:

     For Appellant :

           Smith, Ernmons and B a i l l i e , Great F a l l s , Montana.
           Robert J. Emmons argued, Great F a l l s , Montana.

     For Respondent :

           Hoyt and Bottomly and G a b r i e l , Great F a l l s , Montana.
           Richard V. Bottomly argued, Great F a l l s , Montana.



                                                            Submitted:        June 15, 1 9 7 2

                                                               Decided :     Jut 2 6 1z
                                                                                      9
Filed :   JUL 2 6 1 m
                   9
M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e
Court ,

           This i s an appeal from a v e r d i c t and judgment of t h e
eighth j u d i c i a l d i s t r i c t , county of Cascade, Hon. Truman Bradford,
presiding with a j u r y , i n favor of p l a i n t i f f Joseph Pachek and
a g a i n s t defendant Norton Concrete Company.                    Defendant appeals
from t h e judgment and d e n i a l of i t s motion f o r a new t r i a l .
            P l a i n t i f f brought t h e a c t i o n t o recover f o r personal
i n j u r i e s r e s u l t i n g from a t r u c k and automobile c o l l i s i o n ,
           Joseph Pachek, a man 79 years of age a t the time of t h e
accident on November 25, 1969, was r e t u r n i n g t o Great F a l l s from
a cabin located south of t h e town of Cascade when he became i n -
volved i n t h e accident.             He was t r a v e l i n g on a frontage road
running p a r a l l e l t o an i n t e r s t a t e highway.         This road p r i o r t o t h e
c o n s t r u c t i o n of t h e i n t e r s t a t e , had been t h e main highway between
t h e c i t i e s of Great F a l l s and Helena.            The frontage road has a
hard s u r f a c e some 22 t o 24 f e e t i n width with a painted c e n t e r
line.      The accident occurred about s i x and one-half miles south
of Cascade where a g r a v e l road leading t o T i n t i n g e r ' s Gravel P i t
i n t e r s e c t s t h e frontage road.        The g r a v e l p i t i s located some
1,000 f e e t from t h e frontage road.                 Some 76 f e e t from t h e f r o n t a g e
road and between t h e road and g r a v e l p i t a r e r a i l r o a d t r a c k s which
run p a r a l l e l with t h e road.         A gravel road runs from t h e gravel p i t
a c r o s s t h e t r a c k s t o i n t e r s e c t t h e frontage road.
           On t h e day of t h e a c c i d e n t , November 25, 1969, a Norton
Concrete Company v e h i c l e driven by Herbert Garman, was hauling
a load of g r a v e l from t h e p i t and became involved i n t h e accident
with p l a i n t i f f .   The v e h i c l e was a t r a c t o r p u l l i n g two t r a i l e r
u n i t s and was s i x t y f e e t long, e i g h t f e e t wide and e i g h t f e e t high.
           On t h a t day t h r e e highway employees were p u t t i n g i n a c u l v e r t

a d j a c e n t t o t h e frontage road where i t i n t e r s e c t e d with t h e road t o
the gravel p i t .          They had c u t h a l f of t h e entrance road i n order
t o put i n t h e c u l v e r t and t o do t h i s were using a f r o n t end loader.
The loader was working i n t h e borrow p i t and was v i s i b l e t o both
Garman and Pachek.
           A s Garman drove from t h e g r a v e l p i t he stopped a t t h e
r a i l r o a d t r a c k s and s h i f t e d i n t o "deep under", t h e t r a c t o r ' s
lowest gear.           H t e s t i f i e d h e looked up and down the frontage road
                        e
but he d i d n o t see t h e Pachek c a r .            Garman t e s t i f i e d t h a t from t h e
s t o p a t t h e r a i l r o a d t r a c k s he l e t t h e t r u c k r o l l forward slowly,
n o t p u t t i n g h i s f o o t on t h e a c c e l e r a t o r a s he s t a r t e d towards t h e
frontage road.            H estimated h i s speed a t from one t o f i v e miles
                           e
per hour.         He t e s t i f i e d t h a t from t h e time he l e f t t h e r a i l r o a d
t r a c k s u n t i l he turned onto t h e frontage road he d i d n o t look up
o r down t h e frontage road, b u t r a t h e r he was working with m i r r o r s
on both s i d e s of t h e cab i n order t o see t h e wheel of t h e t r a i l e r s .
He was aware of t h e c u t made by t h e highway crew and was t r y i n g
t o f i t h i s v e h i c l e onto t h e h a l f of t h e i n t e r s e c t i o n l e f t by t h e
c o n s t r u c t i o n crew.
           A s he approached t h e frontage road he d i d n o t t u r n on any
t u r n s i g n a l s , and without stopping pulled onto t h e frontage road
t u r n i n g i n t o t h e approaching c a r driven by Pachek,                The c e n t e r
of Pachek's 1965 Lincoln                Continental h i t t h e l e f t f r o n t wheel of
t h e t r a c t o r , which was on o r j u s t over t h e c e n t e r l i n e .        The l e f t
f r o n t wheel of ~ a c h e k ' sc a r came t o rest on t h e yellow l i n e i n
i t s l a n e of t r a f f i c .
           Pachek t e s t i f i e d he was t r a v e l i n g between 35 t o 50 miles
per hour a t t h e time of t h e accident.                 He observed the t r a c t o r
and t r a i l e r s about h a l f way between the frontage road and t h e
gravel p i t .       When t h e t r u c k was some f i v e f e e t from t h e i n t e r -
s e c t i o n , he thought t h e t r u c k was going t o s t o p but i n s t e a d i t
pulled i n f r o n t of him and turned i n t o h i s d i r e c t i o n of t r a v e l .
        As a result of the collision Pachek received severe
injuries conswing of a subdural hematoma and back and body
injuries. The head injury resulted in impairment of Pachek's
memory, loss of speech, dizzy spells and mental confusion.
As a result, Pachek physically and mentally deteriorated and
his daughter spent months with him, teaching him to speak.
        Montana highway patrolman Lewis Hendrickson investigated
the accident, arriving at the scene approximately one-half hour
after it occurred.   He interviewed the two drivers and the three
highway employees who were witnesses.     On the basis of his obser-
vations and the statements given to him, Hendrickson testified
that, in his opinion, the cause of the accident was a right-of-way
violation.
        The jury returned a verdict in favor of plaintiff Pachek
and awarded him $20,00O,p;i-- ,&GI
                                 -2                $2,-      .
        Defendant Norton Concrete Company raises 23 issues on appeal.
Issues 6 through 23 all concern instructions given or refused
and they will be considered together.
        Issue 1 The court erred in allowing the highway patrolman
               .
to state his opinion as to the cause of the accident.         We find
no merit in this issue.   Here, the driver,Garman, had already
admitted he was negligent in entering the highway.        This is not
a case where there is a close question on the issue of violation
of the right-of-way, and where an unfounded opinion of an expert
might sway the jury one way or another.    The patrolman did not
testify to the ultimate question of negligence of Garman or that
such negligence was the proximate cause of the injuries to Pachek,
We find no invasion of the jury's province in allowing this testi-
mony,   In re ~ickich'sEstate, 114 Mont. 258, 136 P.2d 223.         This
Court has repeatedly held that expert opinion evidence is admissible
in explaining the cause of a particular accident.         Demarais v.
Johnson, 90 Mont. 366, 3 P,2d 283; Lamb v, Page, 153 Mont. 171,
455 P.2d 337.
        Issue 2.   Pachek was contributorily negligent as a matter
of law and t h e c o u r t e r r e d i n denying defendant's motion f o r a
directed verdict.            This i s s u e a l s o has no merit f o r t h e evidence
nullifies it.          Here, Garman, t h e t r u c k d r i v e r , t e s t i f i e d t h a t
s i t t i n g up i n h i s cab he had an unobstructed view of t h e frontage
road; t h a t a f t e r reaching t h e t r a c k s he never once looked t o s e e
i f t h e r e was t r a f f i c on t h e frontage road; and t h a t he pulled onto
t h a t frontage road without looking.                   Too, he was aware t h a t
v e h i c u l a r t r a f f i c on t h e frontage road would have t h e right-of-way
but he f a i l e d t o a n t i c i p a t e such t r a f f i c .   Under t h e s e f a c t s Pachek,
who saw t h e slow moving v e h i c l e coming up t o t h e i n t e r s e c t i o n , had
every r i g h t and reason t o expect i t t o s t o p and y i e l d t h e r i g h t - o f -
way and he received no v i s u a l o r sound warnings from Garman t h a t
he was going t o p u l l d i r e c t l y out onto t h e road.              The t r i a l c o u r t
properly refused t o g r a n t defendant's motion.
           Issue 3.       Defendant a l l e g e s i t was e r r o r t o permit D r .
McGregor t o t e s t i f y a s t o any b r a i n damage of Pachek when he was
n o t q u a l i f i e d and t h a t such statements by D r . McGreor were hearsay
and incompetent,
          D r . ~ c ~ r e g o r testimony i n d i c a t e d t h a t he had been ~ a c h e k ' s
                                's
physician f o r some f i f t e e n years; t h a t he t r e a t e d him a s soon a s
he a r r i v e d a t t h e h o s p i t a l and throughout h i s period of recovery,
Upon Pachek's a r r i v a l a t t h e h o s p i t a l , D r . McGregor diagnosed t h e
subdural hematoma and c a l l e d i n a n e u r o l o g i s t f o r c o n s u l t a t i o n .
The n e u r o l o g i s t , D r . Syrenne, confirmed t h e diagnosis and operated
t o r e l i e v e t h e subdural hematoma.
          Throughout Pachek' s h o s p i t a l i z a t i o n D r . McGregor conferred
with D r . Syrenne; he kept a l l t h e h o s p i t a l records except f o r t h e
surgery and he examined those f o r post-operative treatment.                                He
t e s t i f i e d h e knew t h e s u r g i c a l procedures used and by t h e records
knew t h e s i z e of t h e hematoma.              D r . ~ c G r e g o r ' s testimony was
properly admitted.            This Court r e c e n t l y held i n Klaus v. H i l l b e r r y ,
157 Mont. 277, 286, 485 P.2d 54:
       It
        Medical testimony must of necessity in many
       instances be based on information acquired from
       outside sources, examinations by other doctors,
       nurses notes and observations, X-rays, and other
       tools of the profession used in making a diagnosis,"
We reaffirm this statement and in so holding, find no merit in
defendant's issue 3.
       Issue 4 The court erred in denying the motion for a new
              .
trial in that the damages of $20,000 were excessive; the evidence
was insufficient to justify the verdict; and the court erred in
denying defendant's motion to alter or amend the judgment.
       We find this issue to be without merit, Plaintiff suffered
grievous injuries that necessitated surgery and considerable
hospitalization, Lengthy post-hospital therapy was necessary to
partially return him to some state of existence, In Wilson v.
Gehring, 152 Mont. 221, 226, 448 P.2d 678, this Court set down
the rule concerning this type of argument:
       It
        It has been our position in reviewing damages based
       on conflicting evidence, that the amount thereof to
       be paid for personal injury is peculiarly within the
       province of the jury, and we will not disturb such
       finding unless the result is such as to shock the
       conscience and understanding of the court. Such is
       not the case here, this judgment has reasonable sup-
       port in the evidence and it should not be disturbed.
       (Citing cases). I I
       Issue 5, The court erred in refusing defendant's proposed
instruction based on the doctrine of last clear chance,
      We find no error for such an instruction should not be
given in a case involving the collision of moving vehicles where
the act creating the peril occurs practically simultaneously with
the happening of the accident, and where neither party can fairly
be said to have had a last clear chance to avoid the accident.
Story v, Cox, 130 Cal.App.2d 231, 278 P.2d 720.   In addition, it
is obvious from the facts that Pachek never knew of his perilous
situation so that he could avoid the collision, Here, the doctrine
of last clear chance has no applicability.
       Issues 6 through 23, Instructions given or refused,
          Defendant argues t h a t i n s t r u c t i o n s given i n regard t o
e n t e r i n g a highway from a p r i v a t e road were i n e r r o r , b u t a l s o
argues t h e d i s t r i c t c o u r t e r r e d i n r e f u s i n g t o give defendant's
proposed i n s t r u c t i o n s on t h e same i s s u e ,    W find the instructions
                                                               e
given by the d i s t r i c t c o u r t were proper.            Pachek was t h e d r i v e r of
t h e automobile t r a v e l i n g on t h e frontage road and t h e d r i v e r of
t h e t r u c k entered     ontot h i s highway i n t h e face of t h e oncoming
                                              1947,
Pachek c a r ,     Section 32-2173, R,c.M,/ s t a t e s :
          "The d r i v e r of a v e h i c l e about t o e n t e r o r c r o s s
          a highway from a p r i v a t e road, driveway o r u b l i c
          approach ramp s h a l l y i e l d t h e r i g h t of way t o a 1
                                                                .
          v e h i c l e s approaching on s a i d highway " (Emphasis
                                                                           E-f
          supplied)
          Defendant contends t h e e x i t onto t h e frontage road was n o t
a p r i v a t e roadway because i t was p a r t of the s t a t e right-of-way.
Under t h e s t a t u t e t h i s would make no d i f f e r e n c e , because i t would
be c e r t a i n l y a public approach ramp.            As the s t a t u t e c l e a r l y s t a t e s ,
i t was t h e duty of t h e d r i v e r of t h e t r u c k , n o t Pachek, t o y i e l d
t h e right-of-way.
          The c o u r t ' s i n s t r u c t i o n s on (1) c o n t r i b u t o r y negligence,
(2) duty of t h e p l a i n t i f f t o keep a reasonable lookout f o r p o s s i b l e
danger t o himself, ( 3 ) duty of p l a i n t i f f using t h e public highway
t o t h e e f f e c t t h a t one who has t h e right-of-way n e v e r t h e l e s s must
use ordinary c a r e t o avoid causing an a c c i d e n t , and ( 4 ) t h a t a
v i o l a t i o n of t h e law i s of no consequence u n l e s s proximately causing
t h e a c c i d e n t , a l l gave t h e j u r y opportunity t o determine whether
o r n o t Pachek used due c a r e i n d r i v i n g h i s automobile a t t h e point
and time i n question.
          Defendant o b j e c t s t o t h e r e f u s a l of h i s i n s t r u c t i o n which
went t o t h e f a i l u r e t o produce s t r o n g e r evidence when i t was
available.       This was i n r e f e r e n c e t o D r . Syrenne who operated on
t h e subdural hemetoma.           D r . McGregor was t h e a t t e n d i n g and t r e a t i n g
physician throughout t h e e n t i r e case.              He f u l l y and completely
explained t h e i n j u r y , t h e damage, t h e s u r g i c a l procedures i n -
volved, t h e treatment, and t h e prognosis.                     Nothing        more was
needed.
          Defendant a l l e g e s e r r o r i n denying h i s proposed i n s t r u c -
t i o n s r e q u i r i n g and binding p l a i n t i f f t o an a b s o l u t e duty t o
e x e r c i s e h i s i n t e l l i g e n c e t o discover and avoid dangers t h a t
may t h r e a t e n him.     P l a i n t i f f was n o t under an absolute duty,
b u t only a duty t o use reasonable c a r e .
          Defendant o b j e c t s t o t h e r e f u s i n g of h i s i n s t r u c t i o n s i n
regard t o t h e duty of a motorist t o discover danger t h a t may
t h r e a t e n him; t h a t he must look and s e e ; and t h a t he cannot
ignore an obvious danger and reasonable c a r e .                        W f i n d no e v i -
                                                                          e
dence was submitted t o s u b s t a n t i a t e t h e claim t h a t p l a i n t i f f
knew he was i n danger, nor was evidence introduced t o i n d i c a t e
p l a i n t i f f d i d not use reasonable care.
          Defendant a l l e g e s t h e d i s t r i c t c o u r t e r r e d i n r e f u s i n g
    give h i s i n s t r u c t i o n i n regard t o t h e f a i l u r e of Pachek
sound h i s horn t o warn t h e t r u c k d r i v e r of h i s approach.                  The
s e c t i o n involved i s 32-21-145, R.C.M.               1947, which i n p e r t i n e n t
p a r t provides:
          "The d r i v e r of a motor v e h i c l e s h a l l when reasonably
          necessary t o i n s u r e s a f e operation give audible
          warning with h i s horn b u t s h a l l n o t otherwise use
          such horn when upon a highway. II
          The r u l e of law on sounding a horn r e q u i r e s t h a t t h e d r i v e r
have some reason t o b e l i e v e t h a t s a f e operation r e q u i r e s t h e sounding
of t h e horn,      Here, p l a i n t i f f believed the d r i v e r would s t o p before
e n t e r i n g t h e highway.    He had a r i g h t t o a n t i c i p a t e he would s t o p
by law.      I f t h e d r i v e r , under t h e s e circumstances, has a duty t o
blow h i s horn, i t would r e q u i r e every d r i v e r a t every i n t e r s e c t road
i n t h e s t a t e t o blow h i s horn, believilig              t h a t t h e d r i v e r approaching
t h e i n t e r s e c t i o n was going t o v i o l a t e t h e law.      It was only a f t e r
t h e truck was on t h e highway t h a t Pachek would have any duty i n t h i s
regard and by that time the sudden emergency he faced did not
require him to do a useless act. Any instruction in this regard
was inapplicable to the factual situation in this case.
       Next, defendant argues the district court erred in refusing
to give his proposed instruction preemptorily instructing the
jury that it must consider ( ) negligence, ( ) contributory negli-
                            1               2
gence, ( ) damages, and ( ) proximate cause, in that order.
        3                4
Objectimto this proposed instruction was that it takes from the
jury its constitutional right to determine which issue it wants to
discuss or determine in the manner it decides, and the court does
not have the province to instruct the jury in what ordek it should
take up its deliberations.   Since the proposed instruction was
not mandatory, no error was committed.
       Judgment of the district court is affirmed.

                                                                  3




                                         Associate Justice




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    ~ssociateJustices.
