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
.l
*~ - 1
--
~
- J
b l
,,
,
w
,
- Lk ~ f&
s &
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.
~ y ' sice
t
,/'