Thibaudeau v. Uglum

No. 81-553

I N THE SUPREME COURT O THE STATE O MONTANA
F F

1982

F A K D m W THIEAUDEAU,
R N

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

ROBERT LAWRENCE U L M
GU ,

Defendant and Respondent.

1 froM: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Cascade
Honorable J o e l G. F.oth, Jud.ge p r e s i d i n g .

Counsel o f Record:

For P l a i n t i f f :

R e g n i e r and L e w i s ; S t e p h e n D. R o b e r t s , G r e a t F a l l s , Montana

F o r Defendant:

D z i v i , C o n k l i n & Nybo; W i l l i a m C o n k l i n , G r e a t F a l l s ,
Montana

S u b m i t t e d on b r i e f s : August 1 9 , 1982

Decided: November 1 7 , 1982

Filed:
!Q 1 7 4982
j V
i/lr. Chlei Jusrcice Frank I. Haswell cleiivered the Opinion of
the Court.

In the Eighth Judicial District, Cascade County,
plaintiff sued defendant for darnages arising out of a car
accident and a jury awarded plaintiff $1,088.55. Plaintiff
appeals, claiming discovery abuse and error by the court in
failing to direct a verdict on the issue of liability. We
reverse and remand for a new trial.
On February 21, 1980, at about 2:15 p.m., plaintiff

was traveling east on Third Avenue South in Great Falls
approaching the uncontrolled intersection of Third Avenue
South and 22nd Street. At the same time, defendant was ap-
proaching the same intersection traveling south on 22nd
Street. The weather was clear and the streets were snow-
packed and siippery. According to plaintiff, both vehlcles

entered the intersection at approximately the same time and
t h e defendant failed to yield the right-of-way to plaintiff,

who was on defendant's right. Plaintiff's left front fender
struck defendant's right front fender and the vehicles slid,
causing plaintiff's left rear fender to strike defendant's
rlght rear fender.

Later that day, plaintiff went to the Great Falls
office of defendant's insurance company and it appeared from
the evidence at trlal that plaintiff filled out a "Report of

Facts" form while there. The form was unsigned and at trial
plaintiff could not remember filling out the form himself
although he also testifieu that it was his handwriting that
appeared on both sides of the document. In the evening of
February 21, 1980, plaintiff went to the emergency room of a
Great Falls hospital for treatment of lower neck and head
pain.
 On April 11, 1980, plaintiff filed a complaint in
District Court, generally alleging that defendant operated
his vehicle in a negligent manner and seeking damages for
medical costs, pain and suffering and loss of earnings.
Defendant answered, raising as defenses the plaintiff's own
negligence and assumption of risk.
On September 16, 1980, plaintiff propounded a set of
interrogatories to defendant which included the following
language (defendant's answers thereto are included):
"The information requested herein is not
restricted to your personal knowledge,
but includes information in the posses-
sion of your attorneys and extends to
information which you or your attorneys
can obtain upon reasonable inquiry. These
interrogatories shall be deemed continu-
ing so as to require supplemental answers
to be filed promptly upon obtaining fur-
ther information if you or your attorneys
obtain such information between the time
answers are served and the time of trial.

"INTERROGATORY Nu. 3: Have you at any
time since the incident referred to
plaintiff's Complaint, had or heard any
discussion with the plaintiff or any of
.che plaintiff's agents concerning the
same? If so, state:
"(a) The date, time and place where each
such discussion took place;
"(b) The name and present address of each
person present at said discussion;
"(c) Were any statements, written or
otherwise, obtained from anyone, includ-
ing you, who was interviewed or ques-
tioned on your behalf in connection with
the incident described in the Complaint?
If so, state:
"(1) The name and present address of each
person giving such statement;
"(2) The dates upon which such statements
were given;
"(3) 'The names and present addresses of
 all persons who have present custody of
such statements.
"ANSWER: NO.
" ( a ) Not applicable.

"(b) Not applicable.

" ( c ) No.

"(1) Not applicable.
"(2) Not applicable.
"(3) Not applicable."
It can be seen from defendant's answers to these interroga-
tories that plaintiff's attorney was not furnished with the
Corm that was filled out at defendant's insurance company's
off ice.
At trial, plaintiff testified regarding the facts sur-

rounding the accident, that his physical activities had been
hampered somewhat as a result of the accident, and that he
still had recurrent headaches. Defendant on cross-examina-
tion attempted to impeach plaintiff's testimony by using the
information contained on the "Report of Facts" form. Plain-
tiff objected to the use of that information because he was
unaware of the existence of the form, contending that it
should have been supplied to him under the interrogatory
request. Plaintiff's objection was overruled and defendant
used information from the form to contradict plaintiff's
earlier testimony and discovery statements regarding the
speed of the vehicles and when plaintiff first saw
defendant.
At the close of both parties' case-in-chief, plaintiff
moved for a directed verdict in his favor on the issue of
defendant's negligence, which was denied. After rebuttal

testimony from both parties was received, the jury found
plaintiff's total damages to be $1,814.25, and found plain-

eiff to be 40 percent negligent and the defendant 60 percent
negligent. Accordingly, the judgment plaintiff received

against defendant was reduced to $1,088.55.
Plaintiff appeals from that judgment and presents two
issues for our consideration which can be stated as follows:
1. Did the trial court err in allowing defendant to
cross-examine plaintiff about plaintiff's statements made on
the "Report of Facts" form?
2. Did the trial court err in failing to direct a
verdict in plaintiff's favor on the issue of liability?
Regarding the first issue, appellant argues that
defendant's Exhibit No. 1 (the "Report of Facts" form)
should have been produced in response to Interrogatory No. 3
and that the first time appellant was aware that such a
statement had been given was at trial, on cross-examination
ot plaintiff. Appellant further argues that the resulting
impeachment had a harmful effect on plaintiff's credibility
before the jury as reflected in the small judgment and that,
had the document been timely delivered, plaintiff could have

refreshed his recollection about the details of the accident
prior to trial.
Respondent contends that Interrogatory No. 3 should

have been more clearly worded and that it was not clear that
the exhibit was a statement executed by plaintiff. Respon-

dent also contends that the effect of the exhibit on the
jury was merely cumulative, since plaintiff had also been
Impeached by inconsistent statements given in an earlier
deposition and in answers to interrogatories and by testi-
mony of defense witnesses.
 Plaintiff 's statement, given to defendant Is insurance

company, clearly falls within the ambit of Interrogatory No.
3(c) as a written statement obtained from the plaintiff on

defendant's behalf and it was error for the District Court
to allow impeachment thereon. It is clear on the face of
the document that it was filled out by plaintiff. On the
top of the front page under the column entitled "You,"
plaintiff's name appears. The following statements also
appear on the form:

"Who had the right of way? me
Describe I was on his right

"Dld anyone receive a ticket? Yes
Who? Mr. Uglum For what? Not
giving me the r i g h F o f way

"Exactly what was said? Nothing we
lust called the ~ o l i c e

"Describe Accident: I was going East
o n my way home, at 2:lO. W e both tryed
[sic] to stop but the roads were too icey
[sic] and h e was also going too fast for
road conditions. he hit me in the middle
of the intersection pushing me over to
the riaht and then his rear end of his
II
car hit mine
Even a cursory examination of these responses on the form
would have indicated that plaintiff filled it out or, at
least directed someone else to fill it out, which would
still qualify as a "statement" under the interrogatory
language.
In his brief, respondent admits that he reviewed the
insurance adjuster's entire file when answering the inter-
rogatories and a more thorough examination thereof would
have clearly revealed this exhibit. Nor are we persuaded by
defendant's argument that the plaintiff was not "inter-
viewed" or "questioned" in completing the form. The spirit
of the Montana Rules of Civil Procedure requires broad
disclosure of knowledge of the case on the part of all
parties, Smith v. Babcock (1971), 157 Mont. 81, 482 P.2d
1014, and the result is the same whether the plaintiff was
"interviewed," "questioned" or filled out defendant's
insurance company's form, i.e., the defendant's insurance
company obtained a statement about the accident from
plaintiff.
Furthermore, at trial defense counsel admitted they
realized that plaintiff had probably prepared the form as
the following transcript shows:
". . . I participated in the preparation
of this case prior to trial, and partici-
pated in answering the interrogatories in
question, and I want the record to show
that I had no idea that Defendant's
Exhibit No. 1 was, in fact, a statement
prepared by the plaintiff, and Mr.
Conklin. when e n t e r e d t h i s c a s e ,
discovered that this document had,--
------------ in
fact, probably------prepared by t h e
------------- been --------------
. . ."
lai in tiff (Em~hasisadded.)
Because the interrogatories are, by their language, continu-
ing, it was incumbent upon defense counsel to turn the docu-
ment over to plaintiff at that time, also. Defense counsel
were in violation of Rule 26(e)(2), Pl.R.Civ.P., which
states:
"(2) A party is under a duty seasonably
to amend a prior response if he obtains
information upon the basis of which (A)
he knows that the response was incorrect
when made, or (B) he knows that the
response though correct when made is no
longer true and the circumstances are
such that a failure to amend the response
is in substance a knowing concealment."
We have held that reversal and a new trial may be had
where interrogatories were not properly answered, Sanders v .
Mt. Baggin Livestock Co. (1972), 160 Mont. 73, 500 P.2d 397.
In this regard, appellant requests that we instruct
the trial court to assess reasonable damages pursuant to
Rule 37(b), Eii.It.Civ.P., for defendant's failure to comply
with discovery rules. However, Rule 37(b), M.R.Civ.P.,
relates to failure to comply with a court order compelling
discovery, which did not occur here. Thus appellant's
request is denied.
The focus of the second issue is whether the trial
court should have directed a verdict in plaintiff's favor on
the issue of liability. Appellant argues that this should
have been done because both vehicles approached and entered
the intersection at approximately the same time and
plaintiff's vehicle was on the right of defendant's vehicle
and thus had the right-of-way. Section 61-8-339(1), MCA,
provides:
"Vehicle approaching or enterinq inter-
section. (1) When two vehicles enter or
approach an intersection from different
highways at approximately the same time,
the driver of the vel~icle on the left
shall yield the right-of-way to the
vehicle on the right."
Appellant also argues that DeVerniero v. Eby (1972),
i59 Mont. 146, 496 P.2d 290, is controlling here. In
DeVerniero plaintiff and defendant approached an uncon-
trolled intersection at approximately the same time and
collided. Plaintiff was to the right of defendant. This
Court found that plaintiff was not contributorily negligent
as a matter of law and the jury verdict for defendant was
reversed and a new trial ordered on the issue of damages.
Respondent contends that DeVerniero is factually dis-
t i n g u i s h & b l e from the instant case and points out that

D e V e r n i e r o was d e c i d e d u n d e r t h e o l d c o n t r i b u t o r y n e g l i g e n c e

law, rather than under the present comparative negligent

statute. Even if we hold that a directed verdict on

liability should have been granted, respondent contends

there is no need for a remand b e c a u s e p l a i n t i f f ' s damages

h a v e a l r e a d y b e e n f i x e d by t h e j u r y ( $ 1 , 8 1 4 . 2 5 ) .

The D i s t r i c t C o u r t was c o r r e c t i n r e f u s i n g t o g r a n t a

directed verdict in plaintiff's favor on the issue of

liability. The r i g h t - o f - w a y s t a t u t e , s e c t i o n 61-8-339, MCA,

supra, r e q u i r e s t h a t t h e two v e h i c l e s e n t e r o r a p p r o a c h t h e

i n t e r s e c t i o n a t a p p r o x i m a t e l y t h e same t i m e . The d e f e n d a n t

testified that the vehicles did not enter the intersection

a t a p p r o x i m a t e l y t h e same t i m e and c l a i m s t h a t h e e n t e r e d

the intersection first. Other testimony, including t h a t of

the officer investigating the accident, indicated that the

two v e h i c l e s d i d e n t e r t h e i n t e r s e c t i o n a t approximately t h e

same t i m e .

This c o n f l i c t i n g testimony r a i s e d a f a c t u a l i s s u e f o r

the jury to decide as to whether defendant entered the

intersection f i r s t ( a c c o r d i n g him t h e right-of-way) or

whether t h e v e h i c l e s approached o r e n t e r e d t h e i n t e r s e c t i o n

a t a p p r o x i m a t e l y t h e same t i m e ( g i v i n g t h e right-of-way to

plaintiff).

Another f a c t u a l c o n f l i c t f o r t h e j u r y ' s determination

is w h e t h e r t h e respective d r i v e r s kept t h e proper lookout.
D e f e n d a n t t e s t i f i e d t h a t h e d i d n o t see p l a i n t i f f ' s v e h i c l e

until just before defendant entered the intersection.

Plaintiff testified at trial that plaintiff was seventy

feet from the intersection when he first saw defendant.
 However, i n a n s w e r s t o i n t e r r o g a t o r i e s p l a i n t i f f s t a t e d t h a t

t h e d i s t a n c e was t h i r t y f e e t and on E x h i b i t 1 t h e d i s t a n c e

given was one car lengtl?. This evidence raised a jury

question on whether each driver had maintained a proper

l o o k o u t , t h u s p r e v e n t i n g a d i r e c t e d v e r d i c t on t h e i s s u e of

liability.

A d i r e c t e d v e r d i c t may n o t b e p r e d i c a t e d on s u c h con-

f l i c t s of m a t e r i a l f a c t .

R e v e r s e d a n d remanded.

Chief J u s t i c e

W e concur:

Mr. J u s t i c e J o h n C. Sheehy w i l l f i l e a s p e c i a l c o n c u r r i n g
opinion later.
 LN THE S I J P ~ COUIiT OF THE STPPm OF JWNTANA
J

F m D m THIBAuDrnTJ,

P l a i n t i f f-Appellant ,
VS .
ROBEXI? LAWRENCE UCLUM,

Defendant-Respondent.

CONCURRENCE AND DISSENT
OF M ? JUSTICE JOHN C. SkEEHY
E.

DATED: J a n u a r y 20, 1983
Mr. Justice Job C. Sheehy, concurring in part and dissenting in
part:

I concur in the remand of +his cause for a new trial for the
failure of respondent to make adequate discoven/. I dissent to the
further conclusion.of the majority that plaintiff is not entitled to
a directed verdict on liability. In my opinion, the defendant in
this intersection-collision case is negligent as a matter of law,
and the plaintiff is not guilty of any contributory or comparative
negligence as a. matter of law.
My dissent is based. on two grounds: (1) the right of way
statute qave the plaintiff an undisputed right to proceed and placed
an undisputable burden upon the disfavored driver to stop if
necessary to avoid the collision; and (2) that lookout of the
plaintiff, proper or otherwise, is not a factor of prox-imatecause
1in this case.
1 PI-TIFF
. HERIZ HAD AN ABSOLUTE RIGHT TO THE K RG OF WAY.
C I

The collision here occurred on a clear but wintry dzy a t an
.

uncontrolled intersection in urban Great Falls. Plaintiff was
approaching the intersection from the right, the defendant f r m the
left. Although there is dispute about their speeds, the evidence
indicates that neither was exceeding the speed limit as each
approached the intersection sad entered it.
The right of way statute provides:
"61-8-339. Vehicle approaching or enterin
intersection. (1) Ie two vehiclys enter oz
&n
approach intersection from different highways
at approximately the same tire, the driver of
the vehicle on the left shall yield the
right-of-way to the vehicle on the right.

(2) The right-of-way rule declared in
subsection (1) is difiec? at through highways
and otherwise as stated in this chapter.''
Subsection (I.) of section 61-8-339, ?CAI applies in this case.

Without doubt the statute establishes a favored driver on the right
of the intersection and a d i s f a v o r 4 driver on the l e f t of the

intersection.

The 1-anguaqe of the s t a t u t e is tha.t the vehicles "enter or

approach" a t "approximately the sam~t b - .I' That language precludes

any consideration by t h i s Court or t h e Distxict Court of who entered

the intersection f i r s t . I f i n f a c t the vehicles are entering -
or

approa.ching the intersection a t a~proximatelythe same the, it is

the duty of the driver on the l e f t t o yield t o the driver on the

right.

The me~ning the word "approximately" a s used i n this s t a t u t e
of

was discussed in Mmre v. Kujath (Minn. 1947) , 29 N.W. 2d 883, 886,

175 A.L.R. 1007, where the Minnesota Court said:

"Bv approximately, +he l e g i s l a t u r e must have
meant t h e approach t o an intersection of twa
vehicles so nearly a t the s m t- t h a t there
would be imnjnent hazard of a c o l l i s i o n i f both
continued the same course a t the same s p e d . I n
t h a t case, he on the l e f t should yield t o him on
the right. While the driver on the l e f t is not
required t o come t o a dead stop a s a t a through
highway stop sign, unless it is necessary t o
avoid a c o l l i s i o n , he nevertheless must approach
+he intersection w i t h h i s c a r so under control
t h a t he can yield the r i q h t of way t o a vehicle
w i t h i n t h e danger zone on the r i g h t ...
.I1

In Fester v. George (S.D. 1946), 25 N.W.2d 455, 456, it is

said :

". . . in determining the r i g h t of way, it is
without legal significance which car actually
entered the intersection f i r s t i f it appears
+hat the vehicles approached o r entered the
intersection a t approximately the same. It
f o l . 1 0 ~ ~h a t the single f a c t t h a t pl-aintiff
t
entered the intersection f i r s t did not aive him
a r j g h t of precedence over defendant. The
controlling issue is whether the two c a r s w e r e
zpproaching o r enterinq the intersection a t
approximatelv the same time; i f thev were, the
p l a i n t i f f beinq on the l e f t , should have yielded
t o the defendant; i f thev were not, no question
of r i g h t of way is presented. The p a r t i e s A r e
approaching the intersection I a t approximately
the same t h e ' whenever the two vehicles are i n
such a r e l a t i v e position t h a t upon appraisal of
a l l of the factors in the s i t u a t i o n it should
a p p a r t o a man of ordinary prudence aproaching
 from the left that there is danger of collision
if he fails to yield the right of way."
Therefore, 1 cannot a.gree with the followin9 language in the
majority opinion:
"This conflicting testimony raised a factual
issue for the jury to decide as to whether
defendmt entered the intersection first
(according him the right-of-way) or whether the
vehicles approached the intersection at
approximately the same time (giv-ing the
right-of-way to plaintiff.)"
That language does not embody the law, ignores the wording of our
right-of-way statute on uncontrolled intersections, and restores the
"race to the intersection" test that the legislature itself intended
to abolish in 1965.
Section 61-8-339, MCA, is the successor statute to section
32-2170, R.C.M. 1947. Before 1965, the right-of-way statute read as

follows:
"32-2170. Vehicle approaching or enterin
intersection. (a) The driver o f a vehiclz
approachinq an intersection shall vield the
right of way to a vehicle which has entered the
intersection from a different highway.

" ( b ) When two vehicles enter an intersection
from different highways at approximately the
sane time, the driver of the vehicle on the left
shall yield the right of way to the vehicle on
the right . . .I1

It will 5e noted that paragraph (a) of t h old sta.tuteprovided for
vehicles where one had entered the intersection and one was
approaching the intersection.

Para.graph (b) provided for v~hiclesentering the intersection

- approximately ---
at the same time.
The old statute was unsatisfactory, particularly because
paragraph (a) provided in effect for a race to the intersection
which led to the amendment in 1965.
Paragraph (a) in the old statute was deleted, and a new
parayra-phprovided as follcx?~s
:
 "32-2170. Vehicle approaching or enterinq
intersection. (a) When. two (2) vehicles enter
. .
- approach an intersection from d.ifferent
or
hiqhways at approximately the same time, the
driver"of the -khicl.e on^ the left shall .yield
the right of way to the vehicle on the right."
(-hasis added.)
The amendment in 1965 can be found in Taws of 1965, S 1, Ch. 175.
The stztute was again amended in 1979, but without affecting the
language which we have quoted & e
v.
We have heretofore construed the statute in accordance with the
legislative intent until this case. In DeJJerniero v Eby (1.972),
.
159 Mont. 146, 496 P.2d 290, a intersection collision case, this
n
Court said:
"Defendant's failure to yield the right of way
constituted both statut.orily recognized duty m d
breach of that duty. It is clear that by
statutory directive automobiles approachinq or
entering an intersection are accorded the status
of favored and disfavored drivers to facilitate
the orderly mvement of automobiles." (Emphasis
added.) 159 Mont. at 1.51, 496 P.2d at 292.
In Yates v. Hedges (1978), 178 Mont. 488, 585 P.2d 1290,
mother intersection collision case, we reversed the District Court
under the provisions of the right-of-way statute where the collision
had occurred. at an uncontrolled intersection and seted the
following:
". . . The rul-e for drivers approachinq an
intersection is primarily one of reasonableness:
"'If a traveler, not having such riqht of
precedence, comes to the crossing and fhds no
one approaching it upon -- street with5
the other
such distance as-reasonahlv to indicate A danqer
of i n t e r f e r e o r i o ~ h is under no
- e
o h l i ~ o p < rto wait,but he may proceed
to u.se such crossincr as a matter of r c h . '
irt
(Citing a. case.) ( % & i s in original o~inlon.)
lps.

"Here, there was another driver approaching on
+he right within a distance that reasonably
indicated danger of interference or collision.
Yates wa.s under a legal duty to yield to him
rather than accelerate to try to make it through
the intersection hefore him." Yates v. Hedges
(1978), 178 l o t 488, 495, 585 P.2d 1290, 1294.
ln.
 In Marcoff v Buck (1978), 179 Mont. 295, 587 P.2d 1-305,we
.
reversed the District Court for not applying the right-of-way rule
to give the plaintiff on the right of the'right of m y .
The only two cases in Montana that uphold the right of a
plaintiff who was on the left at the intersection to recover damages
involved situations where the driver on the left would not have
collided with the other vehicle unl-essthe vehicle on the riqht was
violating the law; for example, driving at an excessive rate of
speed. See Jessen v. O'Daniel (1960), 136 Mont. 513, 349 P.2d 107,
and Flynn v. Helena Cab and Bus Company (1.933), 94 Mont. 204, 21
P.2d 1105.
The 1965 legislature, in plain and easily understood lmguage,
did what it could to standardize the rights and duties of vehicles
approaching or entering an uncontrolled intersection at
approximately the s m time. The legislature did away with the
"race to the intersection" theory of right of way. I trust that
anyone construing the effect of the majority opinion here as to the
right-of-v~ay statute will understand that it is only an
inadvertence, and that DeVemiero, Yates and Marcoff, supra, have
not been overruled.
I . THEPS3 IS NO ISSUE OF IOOKOUT AS A PFOXIJZATE CAUSE IN THIS CASE.

The majority find a possible issue of whether the respective
drivers kept a propr lookout. With respect to the plaintiff, that
cannot be an issue in this case. It is true that pl-ajntiff
testified that he first saw the defendant's vehicle when defendant
was 70 feet from the intersection; that i
n answers to
interrogatories, he stated the distance was 30 feet, and on exhibit
1
- in the trial, he gave the distance as one car length. While an
issue of fact m y have existed as to when plaintiff first observed
+he defendant's vehicle, it has no bearing on proximate cause and is

thus not an issue in the case. Again the majority have
misapprehended the rights and duties arising from the riqht of way

In Moffitt v. Dean (Ga. 1951.1, 65 S.E.2d 637, 639, under the

same right-of-way statute, t h a t court said:

"Under these circumstances, the alleged failure
of the defendant t o keep a 1-ookout ahead is
immaterial since had he observed the ap3?roaching
vehicle he would have Seen authorized t o proceed
across the intersection notwithstanding i t s
approach. It may be conceded that under some
circumstances where one approaches an
intersection on the riqht of another vehicl.~
approaching on an intersecting highway he w i l l
not be authorized t o proceed into the
intersection ahead of the other vehicle or t o
assLm t h a t the other w i l l yield the right of
way t o him. Such a case might be where the
vehicle on the l e f t approaches the intersection
a t a high r a t e of speed, w i t h obviously no
intention of stopping or yielding the right of
way t o the vehicle on the right, o r where the
one on the l e f t enters the intersection ahead of
the one on the riqht. Under such a s s m d
circumstances, it might possibly be negligence,
as t o those riding as passengers i n the vehicle
on the right, not t o exercise caution, slow
down, o r stop t o permit the passing of the
vehicle or! the l e f t . However, no such facts o r
circunstances are alleged in the instant case
.md the courts are not authorized t o hypothesize
t e where nothing in the petition even remotely
hm
Implies such facts.

7: could not improve on the prose of the hate Justice Hamley. In

Massengale v. Svangren (Wa. 1953), 252 P.2d 317, Judge Hamley wrote:

"'Etrery driver has the right t o assum t h a t
other users of the highway w i l l obev the t r a f f i c
Laws and rules of the road. Accordingly, w e
have frequently held that a favored driver who
has done nothina t o confuse o r deceive a
disfavored driver i s entitled t o assume t h a t the
Latter w i l l yield the right of way. (Citing
cases. ) The favored driver may rely upon t h i s
assumption u n t i l he becomes aware, o r i n the
exercise of reasonable care should have become
aware, t h a t the right of way w i l l not be
yielded. (Citing cases. )

" 'Under the establj-shed facts of this case, the
two vehicles were about equidistant from the
intersection a s they approached a t a speed of
approximately 30 miles per hour. H d appellant
a
looked t o h i s l e f t when he was 100 feet from the
 intersection, he could have seen respondents
approaching from t h e l e f t a similar distance
'ran the intersection and traveling a t a similar
speed. I t w s broad daylight, the intersection
a
was unobstructed, and both vehicles were i n
plain view of the respective drivers.

"'There i s no finding t h a t , had appellant
looked, he would have observed that the
disfavored was inattentive t o her driving, o r
t h a t any other circumstance would have k e n
observed which would have given notice t h a t t h e
disfavored driver did not intend t.0 yield the
r i q h t of way. There i s no finding t h a t
a p p l l a n t was driving in a manner which would
tend t o confuse o r deceive the disfavored
driver.

"'The conclusion is inescapable, on these f a c t s ,
t h a t had appellant lmked and seen respondent%
c a r when both w e r e 100 f e e t from t h e
intersection, appellant would have been e n t i r e l y
warranted in proceeding on the assumption t h a t
he would he accorded the r i g h t of way. Nor did
the situation change a s the two vehicles
approached t h e intersection. Appellant a t a l l
times had the r i g h t t o assume t h a t the
disfavored driver, observing appellant ' s steady
orogress towards ~ n d i n t o the intersection,
would slow down o r change h i s course so a s t o
s r a n t the r i q h t of way. There came a time, of
course, when appellant could and did see t h a t
the r i g h t of way was not being yielded. By
then, however, it w s too l a t e t o avoid the
a
collision.

" 'The f a c t s here found distinguish t h i s case
from those cases, c i t e d by respondents, where
the p l a i n t i f f f a i l e d t o a c t promptly t o avoid an
accident, a f t e r observing, o r negligently
f a i l i n g t o observe, the disfavored driver
crossing, or attempting to cross, the
intersection immediately ahead of the p l a i n t i f f .
(Citing cases. )

"'For the reasons indicated, the findings of
f a c t entered by the t r i a l court do not support
the court s ultimate finding o r conclusion t h a t
appellant's f a i l u r e to look t o h i s l e f t and see
respondent's vehic1.e was a proximate cause of
the accident. Contributory negligence was
therefore not established. W e need not and do
not decide whether the favored driver had a duty
t o look t o h i s l e f t . " 252 P.2d a t 318, 319.

Whether p l a i n t i f f f i r s t saw the defendant's vehicle when he was

a car length away, 30 f e e t away, o r 50 f e e t away from the other

vehicle, nothing i n t h i s record shows t h a t an observation a t any of
those points would have led plabtiff to believe that the right of
way would not be yieldled to him i time for him to avoid the
n
collision. Plaintiff's lookout, therefore, could not be a proxhte
cause i this case.
n Plaintiff was correct in relying on his riqht
of m y and assLnming that the less favored driver would respect the
right of way.
I would therefore reverse this cause and remand it to the

District Court with instructions to find the defendant negligent as
a matter of law, enter a directed verdict as to liability and let
the jury re-examine the issue of damages.
It should be said that defendant's contention that plaintiff's
alleged negligence should be considered in this cause because we now
have comparative negligence instead of contributory negligence is,
o course, weightless.
f Negligence is negligence, whether it is
contributory or comparative. The comparative negliqence statute did
not do away with the concept of proximate cause.