No. 83-156
IN THE SUPREME COURT O TIIE STATE O F M N A A
F OTN
1953
PAUL LACKEY a n d PHYLLIS LACKEY,
P l a i n t i f f s and A p p e l l a n t s ,
-vs-
TONI (NASH) WILSON,
D e f e n d a n t a n d Kespondent .
APFEAL FROM: D i s t r i c t Court of t h e Fourth 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 M i s s o u l a ,
The H o n o r a b l e J a c k L. G r e e n , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Apgellants:
Noel K . L a r r i v e e , M i s s o u l a , Montana
For Respondent:
R i c h a r d Ranney, W i l l i a m s Law F i r m , M i s s o u l a , Montana
S u b m i t t e d on B r i e f s : May 1 9 , 1983
Decided: S e p t e m b e r 2 , 1953
Filed:
C; E P 2 .- 7983
- -.
--
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a judgment for plaintiffs in the
amount of $795.00, following a special verdict of a
six-person jury in the District Court of the Fourth Judicial
District of Montana, finding the plaintiff, Phyllis Lackey,
guilty of 50% contributory negligence. We affirm the
judgment.
The sole issue presented on appeal is the sufficiency of
the evidence to support the jury's finding of 50%
contributory negligence on the part of Mrs. Lackey.
This action arose as a result of a collision between
vehicles driven by plaintiff Phyllis Lackey and defendant
Toni Nash. The accident occurred on Monday morning, July 21,
1980 on Highway 10 West approximately four miles west of
Missoula at an unmarked, uncontrolled intersection. The
road was straight, flat and dry. The weather was clear.
Plaintiff and defendant were traveling in opposite
directions on a two-lane highway without left turn lanes.
Defendant had stopped at the intersection with her left turn
indicator on. A white truck was in front of plaintiff's car
and across the intersection from defendant. The truck's left
turn indicator signaled. Defendant waited, allowed a car to
pass the white truck, then eased into the intersection. She
testified that the man in the truck waved his hand indicating
to her that she could proceed with her left turn. She eased
out slowly, and the next thing she remembered was waking up
after the collision. Defendant was cited for and plead
guilty to "failing to yield when making a left turn."
Plaintiff was traveling at approximately 50 miles per
hour at the time of the accident and intended to pass the
white truck on the right. Plaintiff testified that the
roadway was wide enough for her to pass the truck without
leaving the pavement. She further testified that she slowed
from 55 to 45 or 50 miles per hour as she approached the
intersection; that the white truck in front of her blocked
her view of oncoming traffic "at one certain point;" and that
she first saw defendant's car as it started to cross into her
lane of traffic. Plaintiff admitted she saw defendant's left
turn indicator on. The cars struck each other in plaintiff's
lane of traffic.
The highway patrolman who investigated the accident
could not tell which vehicle entered the intersection first.
He testified that plaintiff was traveling "at about 50 miles
an hour at impact." The speed limit was 55 miles per hour.
No motion for a directed verdict was made. Plaintiff
allowed the question of her comparable negligence to be
submitted to the jury and decided on a special verdict form.
Plaintiff's post-trial motion for a new trial, on the ground
of insufficiency of the evidence, was denied.
The standard for review of sufficiency of the evidence
is whether there is substantial evidence to support the
jury's verdict. As set forth in Gunnels v. Hoyt (1981),
Mont . , 633 P.2d 1187, 1191, 38 St.Rep. 1492, 1495,
appellate review of the evidence is governed by the following
well-established legal principles:
" . ..
In considering the sufficiency of evidence, we
apply a limited standard of review. Where a fact
issue is presented before a court sitting with a
jury, and there is substantial evidence to support
the jury verdict, the verdict will stand. Matter
- Estate - -
of of Holm (1979), Mont., 588 P.2d 531, 533,
36 St.Rep. 11, 13 (and cases cited therein).
"We review the evidence in a light most favorable
to the prevailing party. We will reverse only
where there is a lack of substantial evidence to
support the judgment. Groundwater v. Wright
(1979), Mont., 588 P.2d 1003, 1004, 36 S ~ R ~ P .
41,
42; Holm, 588 P.2d 532, 36 St.Rep. 14.
"Evidence may be inherently weak and still be
deemed substantial, and substantial evidence may
conflict with other evidence. Matter - Estate -
of of
Holm, supra.
"If there is conflicting evidence in the record,
the credibility and weight given to such
conflicting evidence is the province of the jury
and not this Court. Holm; In Re Carroll's Estate
(1921), 59 Mont. 403, 4 3 1 9 7 ~ 7 9 9 6 ,
1, 998.
"If there is substantial evidence in the record to
support the finding of the jury, then we must
sustain the trial court's action in denying the
plaintiff's motions for a directed verdict.
Butler Manufacturinq Co. v. - & L Implement Co.
J
(1975), 167 Mont. 5,
1
9
,5
2
9 545 P.2d 962, 9 8 "
6.
In addition, this Court has recognized the constitutional
sanctity of jury verdicts.
"Motions to set aside jury verdicts as not
supported by the evidence are proper only when
there is a complete absence of any credible
evidence in support of the verdict. All evidence
and all inferences drawn therefrom must be
considered in a light most favorable to the adverse
party. The courts will exercise the greatest
self-restraint in interfering with the
constitutionally mandated processes of jury
decision. l1 Barmeyer v. Montana Power Co.
(1983), Mont . , 657 P.2d 594, 597, 40
St.Rep. 23, 25, citing Jacques v. Montana Nat.
Guard (1982), Mont . , 649 P.2d 1319,
1325-1326, 39 St.Rep. 1565, 1573-1574.
The jury was instructed as to both parties1 obligations
in left turn situations. Jury instruction No. 11 is
identical to section 61-8-340, MCA, which provides:
"The driver of a vehicle within an intersection
intending to turn to the left shall yield the
right-of-way to any vehicle approaching from the
opposite direction which is within the intersection
or so close thereto as to constitute an immediate
hazard, but said driver, having so yielded and
having given a signal when and as required by this
chapter, may make such left turn and the drivers of
all other vehicles approaching the intersection
from said opposite direction shall yield the
right-of-way to the vehicle making the left turn.
The provisions of this section shall not be
applicable where it is otherwise directed by
appropriate signs or signals."
The jury was further instructed that all drivers must
proceed :
' . .in a careful and prudent manner, and at a rate
I.
of speed no greater than is reasonable and proper
under the conditions existing at the point of
operation, taking into account the amount and
.
character of traffic. .and freedom of obstructions
- - ahead.. "
of view .. Jury Instruction No. 9
(emphasis added).
Jury Instruction No. 10 defined each driver's duty to
maintain a lookout for oncoming traffic:
"A motorist approaching an intersection is under a
duty to be vigilant and to have his vehicle under
such control as to be able to stop at the shortest
possible notice. The mere fact that a motorist has
the right-of-way over another at an intersection
does not relieve the motorist thus favored from the
duty of exercising reasonable care not to collide
with other vehicles. It is especially true where
the motorist's view is obstructed by a physical
obstacle. The fact that a motorist has the
right-of-way at an intersection does not excuse
heedless or reckless conduct on his part or exempt
him from the duty of keeping a lookout for
motorists entering the intersection."
Plaintiff argues that defendant's failure to yield at
the intersection was the sole cause of the accident. She
cites Thibaudeau v. Uglum (1982), Mont . , 653 P.2d
855, 39 St.Rep. 2096 as authority for the position that she
had a right to rely on her right-of-way in the intersection.
Plaintiff asserts that pleading guilty to the citation for
failure to yield conclusively established defendant's
culpability for the accident.
In Thibaudeau, the drivers approached an intersection
from perpendicular directions. Conflicting testimony raised
a factual issue for the jury to decide whether defendant
entered the intersection first, according him the
right-of-way, or whether the vehicles entered the
intersection at approximately the same time thereby giving
plaintiff the right-of-way. The evidence also raised a jury
question as to whether each driver had maintained a proper
lookout. We held that a directed verdict is improperly
awarded where such conflicts of material fact exist.
In a special concurrence, Justice Sheehy concluded that
plaintiff, as the driver on the right approaching an
intersection at approximately the same time as defendant
approached from the left, was correct in assuming the driver
to the left would respect his right-of-way. Justice Sheehy
reasoned that such reliance was reasonable since:
"Whether plaintiff first saw the defendant's
vehicle when he was a car length away, 30 feet
away, or 50 feet away from the other vehicle,
nothing in this record shows that an observation at
any of those points would have led plaintiff to
believe that the right of way would not be yielded
to him in time for him to avoid the collision."
Thibaudeau, 656 P.2d 222-223, 39 St.Rep. 2102F.
In Thibaudeau, both parties saw the other before
reaching the intersection. This case is distinguishable from
Thibaudeau on the critical fact that Mrs. Lackey passed the
truck in front of her, while traveling 50 miles per hour,
even though the truck blocked her view of oncoming traffic
and the intersection. The fact that one driver enjoys the
right-of-way does not absolve that favored driver of
maintaining a proper lookout for oncoming traffic.
The speed at which plaintiff entered the intersection
and the fact her view was obstructed at the time constitute
sufficient evidence to support the jury's finding that
plaintiff was guilty of 50% contributory negligence. The
district court did not abuse its discretion in denying the
motion for new trial.
The judgment is affirmed.
W e concur:
Chief Justice
Justices C/