                                         No, 12175

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

                                             1972



ARVID FRIES,

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

         -VS   -
TOM SHAUGHNESSY,
                                Defendant and Respondent,



Appeal from:          D i s t r i c t Court o f t h e Fourth J u d i c i a l D i s t r i c t ,
                      Honorable J a c k L. Green, Judge p r e s i d i n g .

Counsel of Record:

         For Appellant :

                   E l l s w o r t h A, Cragholm, submitted on b r i e f s , Missoula,
                    Montana.

         For Respondent :

                   G a r l i n g t o n , Lohn and Robinson, Missoula, Montana.
                   Robert E. Sheridan argued, Missoula, Montana.



                                                        Submitted:           A p r i l 21, 1972

                                                            Decided :        MAY-l':! 1972
Filed:             1 2 1972
Honorable Charles Luedke, District Judge, sitting in place
of Mr. Justice Wesley Castles, delivered the Opinion of the
Court.
       In this action the plaintiff appeals from an order
of the trial judge granting defendant's motion to dismiss
the complaint at the close of plaintiff's case.   A counter-

claim by defendant was likewise dismissed, the defendant
electing to not pursue the same.
       The circumstances of the case are as follows:    Plain-
tiff owned a quarter horse mare, three years old, which he had
pastured out under the care of another individual.   At about
10:30 P.M. on December 22, 1967, the plaintiff was eating at
Tripp's Cafe in Lolo, Montana, when he was advised by the party
caring for the horse that it had been hit on the road by a car.
Plaintiff went to the scene of the accident, being about nine-
tenths of a mile west of Lolo, and found the horse so severely
injured that it had to be destroyed.
       There were no eyewitnesses to the accident.   Earlier
that day it had snowed, turning to a light freezing rain at
the time of the accident.   The temperature was approximately
26 degrees and the road was slippery and ice covered.
       The next morning at about 9:30 A.M. plaintiff returned
to the scene to remove the horse and at that time saw some
skid marks on the road surface.    He stepped them off as 63
steps to the apparent point of impact and 43 steps beyond that
point during which the car apparently was spun around and
skidded backwards.
       The area involved is in "open range" country and the
horse had gotten out of the pasture through a gate which was
left open.   From tracks left by the horse, it had evidently
been walking along the side of the highway towards defendant's
oncoming car when, for reasons unknown, it crossed the road
and was hit.   Defendant reported the accident to the High-
way Patrol, but no on-the-scene investigation was made.
       Plaintiff, by this action, has brought suit against
defendant to recover the value of the horse.      Plaintiff
presented two witnesses, himself and his wife, and the facts
recited above summarize the totality of their testimony in-
sofar as the issue of defendant's alleged negligence is con-
cerned.
       The trial judge dismissed the plaintiff's claim on
the ground that to find negligence based only upon proof of
skid marks, without the aid of expert testimony to translate
their meaning, would be an exercise of gross speculation upon
the part of the court.
       Plaintiff contends that the trial court erred in this
regard in that speed itself does not determine negligence so
that the court is not required to find an exact speed by spec-
ulation or otherwise, but only to give effect to the circum-
stances shown which demonstrate that defendant was driving at
a speed (whatever it was) greater than was reasonable and prop-
er under the conditions then existing in violation of section
32-2144, R.C.M. 1947.
       Plaintiff's position, however, is necessarily grounded
upon the assumption that because an accident happened, negli-
gence existed and that because automobile skid marks appeared
it was the driver who was negligent.     This view overlooks
some parts of the whole content of the statute upon which plain-
tiff relies, namely, section 32-2144, R.C.M.     1947, in that there
must be taken into account "   * * *   amount and character of
traffic, condition of brakes, weight of vehicle, grade and
width of highway, condition of surface, and freedom of ob-
struction to view ahead.   * * *"   The mere showing of an icy
road condition and the existence of uninterpreted skid marks,
falls far short of demonstrating any violation by defendant
of this statute which contemplates the whole and not only a
part of the circumstances existing.    Likewise, such a showing
fails to show existence of any want of ordinary care or skill
by reason of defendant's failure to do what a reasonable and
prudent person would ordinarily have done under the circum-
stances of the situation, or doing what such person under the
existing circumstances would not have done.
       The mere happening of an accident is not evidence of
negligence.    Stocking v. Johnson Flying Service, 143 Mont. 61,
387 P.2d 312; Flansberg v. Montana Power Co., 154 Mont. 53,
460 P.2d 263.   Likewise, there is no presumption of negligence
upon the part of a driver whose vehicle collides with live-
stock (section 32-1020, R.C.M. 1947) and the rule is not differ-
ent because of the fact that the accident occurred in an "open
rangen area.
       To find negligence on the basis of the limited and in-
complete evidence before the court would have required specu-
lation and conjecture on the part of the trial judge.    His
order dismissing the complaint was proper and is affirmed.
       It is noted that the defendant filed a motion to dis-
miss plaintiff's appeal for his failure to except to the court's
findings of fact and conclusions of law.    Ruling on this motion
was reserved until the hearing on the merits.    In view of the
decision reached herein, no action on such motion is now
necessary.
                                    Hon. Charles Luedke, District Judge,
                                    sitting in place of Mr. Justice
                                    Wesley Castles.



        e concur:
                                    t



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