Boepple v. Mohalt

*425 MR. JUSTICE STEWART delivered the opinion of the court. This is an appeal by the defendant Louis Mohalt, from a judgment entered against him in the district court of Custer county. The action arose out of an accident which occurred on United States highway No. 10, in Dawson county, on October 14, 1933: Plaintiff and her husband, Christoph Boepple, together with their daughter, Mrs. Elma Nervas and her minor child, were returning to their home in Miles City from an automobile trip to *426 Chicago. Plaintiff, Mrs. Nervas, and the child were riding as guests of Christoph Boepple, who owned the car, a Model A 1928 two-door sedan, and drove it throughout the trip. Plaintiff rode in the front seat with her husband. Their daughter and her baby (about eighteen months old) occupied the rear seat. They left Glendive about 3 o’clock in the afternoon and proceeded along the highway in a southwesterly direction toward. Miles City. At about 3:50 they arrived at a point approximately 20 miles from Glendive. At this point Boepple was' driving upon the right, or north, side of the road, and according to his own testimony at a speed of about 35 or 40 miles per hour. While proceeding in this manner, he collided with a Galion patrol, which was owned by the state of Montana and which at that time was being operated by defendant Mohalt, as an employee of the state highway department, for the purpose of maintaining the highway. This patrol, hereinafter called the grader, was headed in an easterly direction toward Glendive, upon its left, or the north, side of the road. Just prior to the collision defendant had brought the grader to a momentary stop. It was not moving forward at the time of the collision.. Seeking damages for injuries suffered by her as a result of the accident, plaintiff instituted this action against the three members of the state highway commission, W. E. Bowden, the division engineer, and Louis Mohalt, operator of the grader. In the complaint it was alleged that the state of Montana was the owner of the grader, which was equipped with a blade used in the maintenance and repair of the highway; that defendant Mohalt for some time prior to the accident “operated the said motor patrol on the left or wrong side of the road, ’ ’ and in such manner that it covered nearly all of the roadway, and that he stopped it at the place of the collision. It was alleged that at the point where the grader was stopped on its left, or northerly, side of the highway there was a very steep hill that arose directly towards the east, and that at the summit of this hill there was a sharp curve in the road, “so that the said motor patrol *427 maintainer, as located, would not have been seen or observed by a traveler in an automobile while proceeding westerly towards said motor patrol on said highway until after the turn had been made at the top of said hill and at a point that would bring the automobile almost directly in front of the said motor patrol maintainer, and the said motor patrol maintainer could not be seen by the driver or occupant of an automobile approaching until within a very short distance of the said motor patrol”; that the grader, as so located, constituted a concealed and obscure obstruction to traffic, a public nuisance, and was dangerous to persons traveling on the highway. It was alleged that plaintiff and her husband were in the exercise of due care and caution and “were keeping a lookout ahead for other automobiles, vehicles and other obstructions on said highway,” but that notwithstanding they could not observe the grader until it was too late to stop their automobile, and as a result ran into it; that it was the duty of defendants to erect and maintain guides, warning signs, and signals on the highway where the grader was being operated, and to equip the grader with a horn, whistle and lights so that warning could be given to approaching traffic; that defendants negligently failed to perform such duties; that, because of such negligent acts of omission, neither plaintiff nor her husband was warned or had knowledge of the position of the grader until it was too late to avoid colliding therewith, and that as a result thereof plaintiff suffered personal injuries. Separate demurrers were interposed by the respective defendants, and were overruled. Thereafter all the defendants joined in an amended answer, wherein they admitted some of the general allegations of the complaint, but denied all the allegations embodying charges of negligence, and by separate answer alleged that plaintiff was guilty of contributory negligence, and that the accident was due solely to the negligence of plaintiff and her husband. The cause came on for trial, and, after plaintiff’s evidence had been submitted, defendants moved for a nonsuit, which motion was granted as to all defendants except Mohalt. The *428 action, proceeded against him alone. At the close of all of the evidence he moved for a directed verdict; the motion was denied. The cause was submitted to the jury, and resulted in a verdict against him for $11,569.70, upon which judgment was entered. From that judgment defendant Mohalt appealed. Although several specifications of error have been urged, as we view the case, the principal question involved, and the only question necessary of determination here, is whether the evidence is sufficient to sustain the verdict. Plaintiff asserts and relies upon the following alleged items of negligence: (1) Failure of defendant, in operating the grader, to observe the law relating to traffic; (2) parking the grader at a concealed or hidden point of a curve near the brow of a hill; (3) failure to use sufficient and reasonable means adequately and reasonably to protect the traveling public by signs and warnings. She charged defendant with negligence in all these particulars, and alleged that such negligence was the direct and proximate cause of the accident, and her injuries resulting therefrom. Defendant contends that plaintiff failed to prove that he was guilty of negligence in any of the particulars charged, or in any manner; and that, if there can be said to be any proof of negligence on his part, still there is no proof that such negligence was the proximate cause of the accident and the injuries resulting therefrom; on the contrary, he asserts that the evidence shows conclusively that the accident was due solely to the negligence of Boepple. In order for plaintiff to recover, it was, of course, incumbent upon her to prove, first, that defendant was negligent in at least one of the particulars charged, and, second, that such negligence was the proximate cause of her injuries. (Stones v. Chicago, M. & St. P. Ry. Co., 59 Mont. 342, 197 Pac. 252; Fulton v. Chouteau, County Farmers’ Co., 98 Mont. 48, 37 Pac. (2d) 1025.) The accident occurred in the middle of the afternoon; no element of darkness was involved. The road was gravel sur *429 face. Plaintiff testified that at a point some 4 or 5 miles east of the place of accident she and her husband saw a red flag alongside the road; that they remarked about that flag; that, after seeing it, her husband slowed the car down somewhat (to 30 miles per hour or less) ; that, after seeing the red flag, she (plaintiff) kept a rather close lookout for quite a ways, because she thought she had better keep a lookout for some obstruction ; that just before she saw the grader she was talking to her daughter and the baby in the back seat, and, when she again faced the front and first observed the grader, they were “right square in front of it,” and it so frightened her that she “must have fainted.” She said that when she first saw the grader they were too close to avoid striking it; that it was clear over on the north side of the road; that just prior to the collision, if she had been looking, there was nothing aside from the brow of the hill to have interfered with her seeing the grader at a distance of 200 feet or more; that there was a little breeze blowing from the north to the south or southeast across the road; that there was a little dust but not enough to obstruct the view nor to have interfered with her seeing the grader. Boepple testified to substantially the same facts. He stated that, after seeing the red flag, he slowed his car down some for a while (about three miles), but that just before colliding with the grader he had again increased his speed somewhat. He fixed his speed just prior to the collision at approximately 35 or 40 miles per hour. He said that just before the accident he passed a car which was going in the opposite direction, and about the same time he passed a mailbox' on the side of the road to his right; that when he first saw the grader he was too close to avoid striking it; that he “slammed the brakes on” and tried to turn to the right, but that it was too late to avoid a collision. He testified that his eyesight was good, but that he would have had to be within 119% feet of the grader in order to see which side of the road it was on, that he could have stopped his car in 150 feet if he had seen the grader, and that, if he could have seen it at 190 feet, he could have stopped. *430 Defendant’s Exhibit 2 is a rectangular signboard mounted on a steel post gbout 4 feet in height. The board is painted white and has printed on it in large black lettering the words ‘ ‘ Grader at Work.” There was also a red flag attached to the signboard. This exhibit was admitted in evidence without objection. Defendant adduced considerable evidence to the effect that on the day of the accident this sign, or one identical to it, was posted on the north side of the highway and facing east, at the Brost ranch, about 4 or 5 miles east of the point of the accident. The evidence is practically conclusive that such a sign was posted there in the manner indicated. However, plaintiff and her husband both claim that they did not see any such sign, although they admit seeing a red flag at about that point. There is no evidence of any other signs of that character between that point and the place where the accident occurred. It appears without contradiction that the grader was a large yellow machine 21.8 feet in length, 4.6 feet in width from center to center of front wheels, and 9.8 feet in height. Its weight was 13,625 pounds; it was equipped with a blade 12 feet in length, which covered 11 feet of space laterally when in operation. It had flags about 18 inches square extended from the frame and carried about 4 feet above the ends of the blade. It had been stopped at the north side of the highway for about one minute before the Boepple car came up, with the north end of the blade about one and a half feet over the north shoulder of the road, and the south end of the blade a little north of the center line of the road, in such manner as to leave approximately 12 or 13 feet in width along the south side of the traveled portion of the highway. The traveled portion of the highway at the point of the accident was 26 feet wide. The steep hill which plaintiff claimed existed at that point is shown by the evidence to have been only about a 4 per cent, grade; and the curve alleged to have existed at the top of the hill was shown to be only an angle of ten degrees, having a curve of 5 per cent, along a distance of 223 feet. It was designated by some of the witnesses as being only a slight curve. *431 Mohalt and other witnesses in his behalf testified that it was sometimes necessary to run the grader on the left or “wrong” side of the road in order to keep the road in proper condition, and a fair interpretation of all of the testimony on the subject indicates that such was the reason for the position of the grader at the time of the accident. Plaintiff sought by cross-examination to show that such procedure was not necessary, but she did not offer any direct evidence to controvert the advantages of such procedure. Mohalt testified that he had been operating that particular grader for about six1 months before the accident; that on the afternoon of the accident he was smoothing the highway, and for that purpose he was operating it along its left side of the road, occupying about one-half of its surface; that about one minute before the Boepple ear came in sight he brought the grader to a complete stop because a car was about to pass him from the west, and he stopped until it had passed; that, when the car from the west had passed around him, he did not start the grader in motion because he could see the dust from the Boepple car approaching from the east about 1,000 feet distant, and that he therefore remained in a stationary position, intending to wait until the west-bound car had passed him. He said that he could see the Boepple ear plainly when it arrived at a point approximately 600 feet east of the grader; that it was approaching at a speed of about 50 or 55 miles per hour upon its right side of the road; that, as the ear continued to approach without any indication of turning out around the grader, he (Mohalt), fearing a collision, released the brake on the grader and tried to get into reverse, but was able only to move the grader back a few feet at the time when the collision occurred. When the car had approached to within 70 or 75 feét of the grader, Mohalt saw Boepple straighten up in the seat of his car and apparently apply his brakes. He testified that, when he saw Boepple coming along the road by the mailbox (239 feet east of the point of the accident) he did not do anything to attract Boepple’s attention because he thought Boepple could* see the grader, and that Boepple did not make any attempt to *432 turn out, or did not apply his brakes until about 50 or 75 feet from the grader. Plaintiff’s Exhibits J, K and L are photographs, taken by one Morang at the scene of the accident. They show the highway both at the point of the accident and for some distance east thereof. In taking the picture, Exhibit K, the camera was placed facing west on the highway about 4 feet in from the north side of the road and about 4% feet above the surface thereof, at a point 239 feet east of the point of the accident. Boepple was there when the picture was taken. He stood at the point on the highway where the accident occurred. The picture shows that he was clearly visible from the point where the camera stood, 239 feet east, and at that distance it is clearly ascertainable from the picture upon which side of the road Boepple was standing. Morang, the photographer, testifying on behalf of plaintiff, stated on cross-examination that in taking the picture, Exhibit L, the camera was 434 feet east of the point of the accident, and that Boepple,. who was standing at that point, could be seen. This picture discloses that Boepple could be seen at that distance, and also that it could be ascertained which side of the road he was standing on. Defendant’s Exhibits 8 to 14, inclusive, are pictures which were taken of the highway, at and near the point of the accident, with the grader placed in the exact position it occupied just before the collision. These pictures demonstrate that the upper portion of the grader was visible from a point on the highway 690 feet east of the grader; at a distance of 512 feet a portion of the grader was clearly visible, and at that distance it could be seen which side of the road the grader was standing'on; at a distance of 286 feet the entire grader and its exact location on the road were clearly visible. The pictures, Exhibits 8 and 9, were taken from a distance of 159 feet and 222 feet east of the grader, respectively. In both of these pictures the grader stands out clearly, and the alleged curve is •barely perceptible. *433 On the whole, the pictures all demonstrate clearly and beyond doubt that the alleged sharp curve and steep hill were in reality only of a slight nature; that Boepple’s vision or ability to see the grader was in no way obstructed by the hill, curve, or anything else for a distance of at least 239 feet. The entire grader and its exact location on the road were clearly discernible at that distance. Indeed, the pictures demonstrate that there was no obstruction which could have prevented Boepple from seeing the grader at a distance of more than 400 feet, had he been keeping a proper lookout. The physical facts, as shown by the photographs, together with the evidence, contradict the claims of plaintiff and disclose that there was unquestionably ample room for Boepple to have passed around the grader. This circumstance, together with Boepple’s own statement that his eyesight was good, and the evidence showing conclusively that he could have easily stopped or avoided the grader if he had seen it at a distance of 239 feet, lead to the inevitable conclusion that the sole, direct and proximate cause of the accident was Boepple’s failure to keep a proper lookout ahead. Clearly, there is no merit in the allegation that the grader was parked at a concealed or hidden point on a curve near the brow of a hill in such manner that Boepple could not see it until he was too close to avoid the collision. The only evidence disclosed by the record which would tend to controvert this conclusion is Boepple’s testimony that he would have had to be within 119% feet of the grader in order to determine which side of the road it was on, and that he did not see the grader in time to avoid colliding with it, and the bare assertion of Boepple and plaintiff that they were keeping a lookout ahead. This is not enough to support plaintiff’s contention that the verdict of the jury on the point in question is sustained by the evidence. The allegations of negligence in plaintiff’s complaint and the evidence to sustain them given by plaintiff and her husband on the witness-stand come within the rule recognized in Casey v. Northern Pacific Ry. Co., 60 Mont. 56, 198 Pac. 141, 145, where *434 it was said: “Whenever the surrounding circumstances make the story of a witness highly improbable or incredible, or whenever the testimony is inherently impossible, a new trial should be ordered. Physical conditions may point so unerringly to the truth as to leave no room for a contrary conclusion based on reason or common sense, and under such circumstances the physical facts are not affected by sworn testimony which in mere words conflicts with them.” In the case of Morton v. Mooney, 97 Mont. 1, 33 Pac. (2d) 262, 265, the court said: “It is true that, where the record presents a conflict in the evidence, resolved by the jury in favor of the plaintiff, the action of the jury precludes this court from disturbing the verdict, * * but this is true only when there is substantial evidence in the record to support the verdict and judgment. * * * Substantial evidence is such as will convince reasonable men and on which such men may not reasonably differ as to whether it establishes the plaintiff’s case, and, if all reasonable men must conclude that the evidence does not establish such ease, then it is not substantial evidence.” Further in the same case it was said: “While the jurors are the sole judges of the facts, the question as to whether or not there is substantial evidence in support of the plaintiff’s case is always a question of law for the court, * * * and, in determining this question, ‘the credulity of courts is not to be deemed commensurate with the facility and vehemence with which a witness swears.’ ” (Casey v. Northern Pacific Ry. Co., supra.) Applying these rules to the facts as disclosed by the evidence in the instant case, we are forced to the conclusion that Boepple could have seen the grader in ample time to have avoided the collision if he had been keeping a proper lookout ahead, in the manner admonished by law. (Compare section 1742 and section 1743 (amended by Laws 1927, Chap. 80, see. 1), Rev. Codes 1921, and Cowden v. Crippen, ante, p. 187, 53 Pac. (2d) 98.) Since the evidence shows conclusively that Boepple could have seen the grader at a distance of at least 239 feet if he had *435 been looking ahead as he should have done, he cannot now be heard to say that he did not see it. Under such circumstances, he is, in legal effect, in the position of having actually seen the grader at that distance. (Autio v. Miller, 92 Mont. 150, 11 Pac. (2d) 1039, 1043; Johnson v. Herring, 89 Mont. 420, 300 Pac. 535; McNair v. Berger, 92 Mont. 441, 15 Pac. (2d) 834; Grant v. Chicago etc. Ry. Co., 78 Mont. 97, 252 Pac. 382.) In Autio v. Miller, supra, it was said: “The driver must look ‘not only straight ahead, but laterally ahead.’ * • ® * Moreover, a person is presumed to see that which he could see by looking. * * * He will not be permitted to say that he did not see what he must have seen, had he looked. i:= 5s * The duty to keep a lookout includes the duty to see that which is in plain sight.” In the case of Johnson v. Herring, 89 Mont. 156, 295 Pac. 1100, 1104, it was said: “The duty to keep a lookout implies the duty to see what is in plain view, and the driver of an automobile is bound to operate his conveyance with reference, not only to the pedestrians and conditions he actually sees, but also as to those he should see in the exercise of reasonable care (Huddy on Automobiles, 8th ed., 448, and cases cited; Morse v. Douglas [107 Cal. App. 196, 198], 290 Pac. 465).” “He [a driver] could not escape the penalty of his negligence by saying that he did not see that which was in plain sight.” (Marsh v. Ayers, 80 Mont. 401, 260 Pac. 702, 705.) Obviously, the sole and proximate cause of the accident here was Boepple’s failure to observe and comply with the above requirements, which the law imposes on him. For other cases wherein similar factual situations and legal principles were involved, see Most v. Cedar County, 126 Neb. 54, 252 N. W. 465; Bruening v. Miller, 57 S. D. 58, 230 N. W. 754, 758. (Compare Simpson v. Miller, 97 Mont. 328, 34 Pac. (2d) 528.) Since, as we have pointed out, the proximate cause of the accident was Boepple’s failure to keep a proper lookout, it follows that there is no merit or force in plaintiff’s allegations of negligence with respect to defendant’s failure to operate the *436 grader upon the right side of the road and his failure to use sufficient and adequate signs and warnings. Even if it were true that defendant was negligent in these particulars, still it is manifest from what we have said already that such negligence was not the proximate cause of the accident; hence such negligence, even if proved, could avail the plaintiff nothing. (Stones v. Chicago etc. Ry. Co., 59 Mont. 342, 197 Pac. 252, 253; Bruening v. Miller, supra; Albrecht v. Waterloo Const. Co., 218 Iowa, 1205, 257 N. W. 183; Wilson v. Congdon, 179 Wash. 400, 37 Pac. (2d) 892.) There was no causal connection between these alleged acts of negligence and the accident. (See Geisen v. Luce, 185 Minn. 479, 242 N. W. 8; Powers v. Standard Oil Co., 98 N. J. L. 730, 119 Atl. 273.) As was said in the case of Bruening v. Miller, supra: “It is not necessary to discuss the question of failure to put up barriers or signs or the failure of defendants to notify plaintiff of the obstruction in the road which he could see.” The same is true with respect to the position of the grader upon the left side of the highway. It would have occupied the same space in the road had it been going west instead of east; and, from all that appears here, in that event Boepple would have collided with it just the same. The grader standing upon the left side of the highway did nothing more than “furnish a condition by which the injury by the subsequent independent act of a third person [Boepple] occurred. In such a case the existence of the condition is not the proximate cause of the injury.” (Bruening v. Miller, supra; compare Simons v. Jennings, 100 Mont. 55, 46 Pac. (2d) 704, and Simpson v. Miller, supra.) For the reasons above stated, we hold that the motion made by defendant Mohalt for an instructed verdict in his favor should have been granted. The judgment is reversed and the cause remanded, with direction to the district court to enter judgment in favor of the defendant. Associate Justices Matthews and Morris concur.