                                VO. 52-209

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       1983



PETAR B. DAMJANOVICH,

                                    Plaintiff and Appellant,



WESTERN FIRE INSURANCE CO&'lPANY,

                                    Defendant and Respondent.



Appeal from: District Court of the Thirteenth Judicial. District,
             In and for the County of Yellowstone
             Honorable William J. Speare, ,Tudae presidinu

Counsel of Record.

    For Appellant:

         Lee Overfelt arqued, Billings, Montana
         Stephens and Cole, Billinus, Montana

    For Respondent :

         Anderson, Brown, Gerbase, Cebull & Jones, Billinqs, Plontana
         Steve Harman argued, Billinqs, Montana



                                     Submitted:    March 24, 1 9 8 3
                                       Decided:    June 30, 1983
         JUN 3 0   ~ ~ d d
~iled:
Mr. Justice John C.           Sheehy delivered the Opinion of the
Court.


       Petar B. Damjanovich was involved in a collision with a
parked     car.         Because   the    owner    of    the     parked   car was
uninsured, Damjanovich brought suit against his insurance
company to recover uninsured motorist benefits under his
insurance      policy.        A    jury    in    the    Thirteenth       Judicial
District,      Yellowstone        County,       found     that    Damjanovich's
negligence was greater than that of the owner of the parked
vehicle.          The    District Court         entered    judgment      for   the
defendant      insurance      company     based    on     the    jury    verdict.
Damjanovich appeals.          We reverse and remand for a new trial.
       On October 4, 1978, Jack Light was traveling eastbound
on 1-94, a part of the interstate system, toward Ballentine,
Montana, in his 1974 Ford Galaxy.                   Between 5:15 and 5:30
p.m., his car suddenly stopped running and he coasted to the
right side of the highway.              Light left the car, then returned
with a mechanic who determined the problem to be bad points.
They decided to leave the vehicle parked                        on the highway
overnight with plans to return the next day to repair the
car.     The interstate highway in this case is one composed of
two    paved   strips, one        each     for eastbound         and westbound
traffic separated by a medium strip.                      Each westbound and
eastbound strip is divided into two main lanes for traffic.
On the righthand side of one's direction of travel, a parking
or emergency lane is also provided, separated from the right
driving lane by a solid painted line.
       Damjanovich was driving his automobile eastbound on the
interstate highway at approximately 3:00 a.m. on October 5,
1978, when his car collided with the parked Light vehicle.
     There     are   several   disputes   in   the   evidence.    The
defendant claimed that the Light vehicle was parked entirely
within      the emergency   lane on the righthand       side of the
highway.       Damjanovich claims that a portion of the Light
vehicle protruded      into the main      traveled portion of     the
traffic lane in which he was driving eastbound.          Damjanovich
testified that as he approached the parked vehicle, which he
did not see, he was blinded by oncoming lights and thus
drifted into the emergency lane where the collision with the
parked vehicle occurred.        There was dispute in the evidence
as   to whether he had         claimed such events following the
accident.     It appears uncontradicted in the evidence that the
parked vehicle had been left unlighted and without warnings
posted around it of its presence in the emergency lane.
     At trial, the District Court instructed the jury in
effect that it is negligence as a matter of law under Montana
statutes to drive a motor vehicle in the emergency lane.
Damjanovich contended that such an instruction should be
tempered with an instruction on the emergency rule.               The
issue presented to this Court by Damjanovich is whether the
District Court erred in instructing the jury on negligence
per se without also instructing it on the doctrine of sudden
emergency.
     With respect to the operation of his car by Damjanovich,
the court gave the jury the following instructions:
                        INSTRUCTION NO. 16
     "You are instructed that interstate highway no. 94
     is a controlled-access highway. A statute in the
     State of Montana, section 61-8-331 (2) (a) and (c),
     MCA, states, in pertinent part, as follows:
        (2)
      'I'      On any controlled access highway              or
      facility, it is unlawful for any person to:
       "I
        " (a) drive a vehicle over, upon or across any
       curb, central dividing section, or other separation
       or dividing lines;


       " I " (c) drive any vehicle except in the proper
       lane, in the proper direction, and to the right of
       the central dividing curb, separation, section or
       line;I ''
                              INSTRUCTION NO. 17
       "If you find from the evidence that the plaintiff,
       Petar Damjanovich conducted himself in violation of
       the law just read to you, you are instructed that
       such conduct was negligence as a matter of law.
       "However, in this action, a violation of law is of
       no consequence unless it was a proximate cause of
       an injury found by you to be suffered by the
       plaintiff."
       Counsel for Damjanovich objected to instructions no. 16
and 17 upon the grounds that they imposed an absolute duty
upon   all    operators of        motor vehicles on         limited    access
highways to stay strictly within their lanes of travel and
that in the absence of a sudden peril instruction it was
tantamount to a direct instruction to the jury to find Petar
Damjanovich guilty of negligence.                In connection with his
objection to instruction no. 16 and                 Damjanovich's counsel
offered      instructions respecting sudden emergency, all of
which were by the court denied.
       Damjanovich's argument on appeal is that the lights of
an oncoming car blinded him and placed him in peril and that
he so testified.       Therefore, he contends he was entitled to
sudden peril instructions which would mitigate the mandatory
effect of instructions 16 and 17.
       The    defendant       insurance   company    on    the     other   hand
contends that under Eslinger v. Ringsby Truck Lines, Inc.
(1981),            Mont   .       ,   636 P.2d 254, 38 St.Rep.             1863,
Damjanovich      was   not      entitled    to   the      sudden    emergency
instructions because     the evidence was             not      sufficient to
support a finding that the claimed emergency actually or
apparently existed.       The defendant contends that it was
questionable whether     an   emergency       actually         or   apparently
existed; that Damjanovich had no other witnesses to testify
to the alleged emergency; that he did not mention the alleged
emergency immediately until several days after the accident;
and that there was no physical evidence of evasive action
taken by Damjanovich.
      Ordinarily, it is the duty of this Court to regard the
evidence    in the District Court trial in the light most
favorable to the prevailing party.                Since, however, the
sudden emergency issue was not submitted by instructions to
                                                  -                     * the
                                                                         -
the   jury, we    are   not
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      We do not regard this case as one in which a sudden
emergency    instruction should have been given.                     Eslinger ,
supra.     Rather we find that the objections of Damjanovich to
the negligence per - instructions applying to him should
                   se
have been regarded by the District Court.
      Under the facts of this case, Damjanovich was driving on
or over at least a portion of the emergency lane when his
vehicle collided with the parked vehicle.                      When the jury
applied instructions no. 16 and 17 to that fact, it was
mandated by the District Court to find (1) such driving was
negligent as a matter of law, and (2) such driving was a
proximate cause of plaintiff's injuries.              No room was given
to the jury under those instructions to determine if driving
in the emergency lane by Damjanovich was something a person
using ordinary care in the circumstances might have been
doing.        The   instructions     were    severely   limited.      If
Damjanovich was in the emergency lane, and the collision
resulted from that, then Damjanovich was negligent as a
matter of law.         In effect, Damjanovich was instructed out of
court, based on the fact that the collision occurred in the
emergency lane without any consideration given to whether a
reasonably prudent person in the same circumstances might
also have been driving in the emergency lane.
      This is the first occasion for this Court to consider
the effect of a motorist driving over and into that portion
of an interstate highway known generally as the emergency
lane.     Certainly the statute given to the jury in this case
with respect to a motorists' duty, section 61-8-331 (2), MCA,
is imprecise.       The statute does not, by its terms, cover the
case of a motorist entering over or upon the emergency lane
of interstate highways in this state.              The thrust of the
statute is to forbid the crossing-over by vehicles into the
driving lanes reserved for opposite-direction traffic.                We
hold that the language of the statutes set out in instruction
No.     16,   supra,    does   not   apply   to   vehicles   which   may
occasionally be driven over or into the emergency lane of an
interstate highway.        To rule otherwise would be contra to our
common experience in the use of interstate highways.            Drivers
frequently veer to the right over and upon the emergency lane
to avoid snow or slush being thrown by overtaking traffic; to
avoid blocking the traffic lanes when circumstances require a
vehicle to proceed more          slowly than the normal speed of
traffic in those lanes (see Section 61-8-321(2), MCA), or to
bring a vehicle to a stop to stretch or change drivers.
Surely none of these examples should be considered violations
of Section 61-8-331, MCA and, thus, negligence as a matter of
law.    No state statute that we can find, including Section
61-8-331, MCA, forbids the use of emergency lanes by drivers
with specificity.
       Application of Section 61-8-331, MCA to Damjanovich, in
this case, negates, in effect, the continuing negligence of
Jack Light who left his unlighted car in the dark on the
highway.     Ashley v. Safeway Stores, Inc., (1935) 100 Mont.
312, 47 P.2d 53; Section 61-9-214, MCA.
       In our view, this cause should have been submitted to
the lury with respect to the operation of the vehicle by
Damjanovich under the ordinary rules relating to negligence.
A   proper instruction, suitable for this case, would have
stated in substance:
            You are instructed that a person who drives a
       motor vehicle into or upon the emergency lane of
       the interstate highway when a reasonably prudent
       person using ordinary care would not do so, is
       negligent. Conversely, if a person drives a motor
       vehicle into or upon the emergency lane of an
       interstate highway and a reasonably prudent person
       would ordinarily have done the same under the
       circumstances of the situation, then you may not
       find the person negligent because of such driving.
       Because of   the   instructional error, we   reverse the
District Court judgment and remand for a new trial.




We concur:




Justices
iqr. C h i e f J u s t i c e P r a n k I . H a s w e l l , d i s s e n t i n g :

          The m a j o r i t y f i n d t h a t J u r y I n s t r u c t i o n Nos. 1 6 and 1 7
r e q u l r e t h e j u r y t o f i n d t h a t Damjanovich was n e g l i g e n t a s a
matter        of   law f o r        driving       i n t h e e m e r g e n c y l a n e and s u c h
d r i v i n g was t h e p r o x i m a t e c a u s e o f h i s i n j u r i e s .            In effect,

t h e m a j o r i t y c o n c l u d e t h a t Damjanovich was i n s t r u c t e d o u t o f
c o u r t b a s e d on t h e f a c t t h a t t h e c o l l i s i o n o c c u r r e d i n t h e

emergency l a n e w i t h o u t any c o n s i d e r a t i o n g i v e n t o whether a
reasonably prudent person                        i n t h e same c i r c u m s t a n c e s m i g h t

a l s o h a v e been d r i v i n g i n t h e e m e r g e n c y l a n e .            The m a j o r i t y
c o n c l u d e by h o l d i n g t h a t d r i v i n g i n t h e e m e r g e n c y l a n e i s

not unlawful;           hence,          r e v e r s e and remand t h e case f o r a new
t r i a l b e c a u s e t h e j u r y was i n s t r u c t e d t h a t s u c h a c t i o n i s
unlawful.

          I would a f f i r m b e c a u s e         (1) i t i s u n l a w f u l t o d r i v e i n

t h e e m e r g e n c y l a n e u n d e r t h e f a c t s o f t h i s c a s e , and ( 2 ) t h e
j u r y was p r o p e r l y i n s t r u c t e d .

          The f a c t s o f t h i s a c c i d e n t m u s t b e n o t e d t o p l a c e t h e
case     in    context.             D e f e n d a n t was d r i v i n g     i n t h e emergency

l a n e and r e a r - e n d e d     a parked c a r .

          Driving         in      the     emergency           lane     is unlawful--thus,
n e g l i g e n c e p e r se.         However,       l i a b i l i t y w i l l attach only i f

s u c h u n l a w f u l a c t i s t h e p r o x i m a t e c a u s e o f some i n j u r y .
          I n s t r u c t i o n No.     1 6 is s e c t i o n 6 1 - 8 - 3 3 1 ( 2 ) ( a )    and ( c ) ,

MCA.    T h e s e s t a t u t o r y s e c t i o n s p r e s c r i b e t h a t on a c o n t r o l l e d
a c c e s s highway,           no     driver      shall       cross       any    curb,       central
dividing section or other dividing l i n e . It further provides
that     v e h i c l e s must       be    driven        in    t h e proper         lane,      in   the
p r o p e r d i r e c t i o n and t o t h e r i g h t o f            the central dividing
line.      A l s o , s e c t i o n 61-1-206,           MCA,    d e f i n e s a roadway a s a n y
p o r t i o n o f a highway u s e d f o r v e h i c u l a r t r a v e l e x c l u d i n g t h e

s h o u l d e r o r t h e berm.                The p l a i n         meaning        of     the     above
s t a t u t o r y s e c t i o n s mandates t h a t one must d r i v e o n l y i n t h e

proper       l a n e of         travel       and    the     emergency l a n e            is - t h e
                                                                                            not
p r o p e r l a n e of t r a v e l .         Damjanovich's a c t i o n s were unlawful
and t h e j u r y d e t e r m i n e d t h e y w e r e t h e p r o x i m a t e c a u s e o f h i s
i n ju r i e s   .
          D a m j a n o v i c h ' s a c t i o n s c o u l d b e e x c u s e d by t h e s u d d e n

emergency d o c t r i n e .              However,         t h e lower        court refused              the
instructions.                  The      Eslinger          opinion       established            certain

findings             that      must     be     made       before        a    sudden        emergency
doctrine             instruction         is g i v e n .         Under       the     facts     of    this

case,      these         requisite         f i n d i n g s c o u l d n o t be made.                It    is

v e r y q u e s t i o n a b l e t h a t a n emergency a c t u a l l y o r a p p a r e n t l y

existed.             A p p e l l a n t h a s no o t h e r w i t n e s s e s t o t e s t i f y t o t h e
a l l e g e d emergency.               The a p p e l l a n t ' s     testimony is t h e only

e v i d e n c e of       the potential disaster.                      Second, a p p e l l a n t d i d
n o t mention t h e a l l e g e d emergency u n t i l s e v e r a l d a y s a f t e r
the     accident.               Third,       t h e r e was      no    physical           evidence       of

e v a s i v e a c t i o n t a k e n by t h e a p p e l l a n t .            Finally,        t h e r e was
t e s t i m o n y t h a t t h e a p p e l l a n t was a w a r e of                t h e parked c a r ;
t h u s , he should have a n t i c i p a t e d it.                   The e v i d e n c e i s s i m p l y

i n s u f f i c i e n t t o s u p p o r t a f i n d i n g t h a t a n emergency e x i s t e d .
          Furthermore,               the     jury     was       properly          instructed        with

r e s p e c t t o Damjanovich's case.                       F i r s t o f a l l , t h e j u r y was
i n s t r u c t e d t h a t i f Damjanovich's a c t i o n s were n e g l i g e n c e p e r
s e , s u c h n e g l i g e n c e was o f no c o n s e q u e n c e u n l e s s i t was the

p r o x i m a t e c a u s e o f some i n j u r y .           The j u r y f o u n d t h e n e g l i -
g e n c e and t h e r e q u i s i t e p r o x i m a t e c a u s e .           Second, e v i d e n c e
was     presented,             and     the     jury       was      instructed         on     possible
statutory        violations          by    Light      and Damjanovich.                The    jury
weighed        the evidence,            a p p l i e d t h e law a n d ,       under    t h e doc-
t r i n e of comparative n e g l i g e n c e ,          concluded t h a t t h e n e g l i -

gence     of    Damjanovich was               far greater          t h a n t h a t of      Light.
This Court should n o t d i s t u r b t h a t f i n d i n g .
          I would,        however,        agree with the majority t h a t there
are certain situations                    t h a t would     require           driving      i n the

emergency         lane      and     under      such    circumstances             such      action
would n o t c o n s t i t u t e n e g l i g e n c e p e r se. For e x a m p l e , d r i v e r s

must o f t e n swerve t o t h e r i g h t o r d r i v e a t e m p o r a r i l y d i s -
abled      vehicle         in     the     emergency         lane     to       avoid     traffic
impediment.              However,          this      case    is      not       one    of    these
emergency s i t u a t i o n s .

         For     the     foregoing         reasons      I    would        affirm      the    j u ~ y
v e r d i c t and t h e D i s t r i c t C o u r t ' s judgment e n t e r e d t h e r e o n .


                                                     3A&8.$4$4
                                                        Chief J u s t i c e


Mr.   J u s t i c e L . C. G u l b r a n d s o n :

       I c o n c u r i n t h e f o r e g o i n g d i s s e n t o f Mr.]Chief           Justice
                                                                          I




Haswell.



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