Reed v. Little

No. 82-342
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984

EVA P. REED and EDDIE REED,

Plaintiff and Respondent,

-vs-

TERRY LITTLE,
Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD:
For Appellant:

Jardine, Stephenson, Blewett & Weaver; Lon Holden
argued, Great Falls, Montana

For Respondent :
James, Gray & T4cCafferty; Robert F. James argued,
Great Falls, Montana

Submitted: :\Jovember 3, 1983
Decided: April 12, 1934

Filed:

--
Clerk
Mr. Justice Fred J. Weber delivered the Opinion ot the Court.

This is a traffic accident case in which the jury found
plaintiff 90% comparatively negligent. Defendant appeals
from an order of the Cascade County District Court, which
concluded defendant, the following driver, was negligent as a
matter of law and granted plaintiffs a new trial on the issue
of damages only. We reverse the order of the court and
reinstate the jury verdict.
The dispositive issue on appeal centers on the
relationship between negligence per se and comparative
negligence.
The accident occurred on August 29, 1979 at the
intersection of First Avenue North and 26th Street in Great
Fal.ls, Montana. Both parties were traveling ea.st in the
right lane of First Avenue North, a two lane, one way street.
Traffic was heavy. The weather was clear. Visibility was
good. Prior to the rear-end collision, the light at the
intersection was red.
Before trial, plaintiffs moved for summary judgment on
the issue of liability. The District Court denied this
motion on the basis that there were genuine issues of
material fact to be resolved by the jury, including "the
circumstances surrounding the subject accident and the
negligence, if any, of the Plaintiff Eva P. Reed and the
Defendant Terry Little."
Plaintiff Eva Reed testified initially that defendant's
car hit her from behind as she stopped or began to stop at
the intersection. She was then confronted with a statement
she had given to a police investigator at the scene of the
accident. At that time she said that she had stopped for the
red light, started forward when traffic began moving after
t h e l i g h t c h a n g e d , and s t o p p e d a g a i n b e c a u s e a c a r s t o p p e d i n

front of her. She a d m i t t e d t h a t t h e s t a t e m e n t s h e had g i v e n

t o t h e p o l i c e i n v e s t i g a t o r was c o r r e c t . T h i s ''second s t o p "

version is consistent with testimony in behalf of the

defendant.

Defendant T e r r y L i t t l e t e s t i f i e d t h a t a f t e r t h e t r a f f i c

signal had turned green, he began moving slowly forwsrd

behind Mrs. Reed's automobile. He testified that she

proceeded approximately one car's length and then made a

s u d d e n , u n s i g n a l e d s t o p f o r no a p p a r e n t r e a s o n .

Mrs. Elsie Huss, who was driving a four-wheel drive

pickup, t e s t i f i e d t h a t s h e had a n u n o b s t r u c t e d v i e w o f the

a c c i d e n t because of the height of the pickup's cab. She

t e s t i f i e d t h a t s h e had s t o p p e d b e h i n d M r . L i t t l e ' s c a r , which

was f i v e t o t e n f e e t b e h i n d Mrs. R e e d ' s a u t o m o b i l e . When t h e

light turned green, plaintiff begam moving, then defendant

started moving. Mrs. Huss testified that Mrs. Reed's

t a i l l i g h t s came on j u s t b e f o r e d e f e n d a n t h i t h e r from b e h i n d .

Both e y e w i t n e s s Huss and t h e d e f e n d a n t t e s t i f i e d t h a t
t h e r e was no apparent reason for Mrs. Reed's sudden s t o p .

Mrs. Reed t e s t i f i e d t h a t s h e a p p l i e d h e r b r a k e s " v e r y e a s i l y "

b e c a u s e t h e r e was a c a r s t o p p e d a c a r ' s length i n front of

her. She s t a t e d t h a t t h e c a r d r o v e o f f a b o u t a s e c o n d a f t e r

defendant hit her car. Adult passengers in defendant's

a u t o m o b i l e and M r s . Huss' p i c k u p t e s t i f i e d t h e r e was no c a r

i n front of M r s . Reed a t t h e t i m e s h e s t o p p e d .

The s u b s t a n t i v e p r i n c i p l e s o f law which g o v e r n t h i s c a s e

are codified at sections 61-8-329 ( I ) , MCA

(following-too-closely) and 61-8-303 (1) , MCA (the basic

rule) . These statutes were given as jury instructions

numbers 6 and 5:
 "The driver of a motor vehicle shall not follow
another vehicle more closely than is reasonable and
prudent, having due regard for the speed of such
vehicles and the traffic upon and the condition of
the highway. I Section 61-8-329 (1), MCA.
'
"A person operating or driving a vehicle of any
character on a public highway of this state shall
drive it in a careful and prudent manner, and at a
rate 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, condition of brakes, weight
of vehicle, grade and width of highway, condition
of surface, and freedom of obstruction to view
ahead, and he shall drive it so as not to unduly or
unreasonably endanger the life, limb, property, or
other rights of a person entitled to use of the
street or highway." Section 61-8-303 (1), MCA.
The jury returned a special verdict finding the
plaintiff, Eva P. Reed, 90% contributorily negligent, and the
defendant, Terry Little, 10% contributorily negligent. Not
having been instructed on the effect of comparative
negligence, the jury determined plaintiff's damages to be
$3,233.68, with no damages for Mr. Reed's claim for loss of
consortium. Judgment was entered awarding nothing to either
plaintiff and awarding defendant his costs.
After post-trial motions by the plaintiffs, the court
concluded that the defendant was liable as a matter of law,
issued a judgment notwithstanding the verdict, and granted
plaintiffs a new trial on damages only. The order did not
comment on any negligence on the part of Mrs. Reed. In
setting aside the jury verdict, the court concluded that the
defendant, as the following driver, was negligent as a matter
of law, that his negligence was the proximate cause of
plaintiffs' damages, and that the only issue to be presented
on retrial was the amount of da.mages sustained by plaintiffs.
The relationship between negligence per se and
comparative negligence is the dispositive issue. Because of
our conclusion on this issue, it is not necessary to address
issues regarding the motion for judgment notwithstanding the
verdict and the sufficiency of the court's findings of fact,
conclusions of law and order entering the judgment in favor
of plaintiffs and. granting the new trial.
The Montana legislature adopted the comparative
negligence rule in 1975. But for a comma, the original

statute is identical to the current law:

"Contributory negligence shall not bar recovery in
an action by any person or his legal representative
to recover damages for negligence resulting in
death or injury to person or property if such
negligence was not greater than the negligence of
the person against whom recovery is sought, but any
damages allowed shall be diminished in the
proportion to the amount of negligence attributable
to the person recovering." Section 27-1-702, MCA.
The legislature did not define the effect of comparative
negligence on existing areas of tort law when it enacted what
is now section 27-1-702, MCA. No statute covers the
interaction between a claimed violation of a traffic statute
and comparative negligence.
The District Court accepted plaintiffs' contention that
a statutory violation coupled with proximate causation was
sufficient to constitute negligence per se, which imposed
absolute liability upon the defendant violator. Plaintiffs
contend. that negligence per se cannot be compared to
ordinary negligence and that negligence per se can only be
compared where hoth parties are guilty of statutory
violations.
Defendant agrees that proof of a statutory violation and
proximate causation are sufficient to prove negligence.
However, he contends that the defense of contributory
negligence is still appropriate, leaving to the jury the
comparison of the degree of negligence on the part of hoth
parties.
In Lackey v. Wilson (Mont. 1983), 668 ~ . 2 d1051, 40
St.Rep. 1439, the jury determined that plaintiff wa.s guilty
of 50% contributory negligence. The plaintiff allowed the
question of her contributory negligence to be submitted to
the jury although defendant had been cited for and plead
guilty to a statutory violation (failure to yield while
making a left turn). The jury was instructed as to both
parties' obligations in turning situations, as well as to
every motorist's duty to drive carefully and maintain a
proper lookout. This Court rejected plaintiff's assertion
that pleading guilty to a traffic citation for a statutory
violation conclusively established defendant's culpability
for the accident. The evidence in Lackey raised factual
issues for the jury's determination. We held that
plaintiff's speed upon entering the intersection and the fact
that her view was completely obstructed constituted
sufficient evidence to support the jury's finding that
plaintiff was 50% contributorily negligent. Lackey, 668 P.2d
at 1054, 40 St.Rep. at 1443.
In Thibaudeau v. Uglum (Mont. 1982) , 653 P. 2d 855, 39
St.Rep. 2096, the jury found plaintiff to be 40%
contributorily negligent in causing a traffic accident at an
unmarked intersection. As here, the District Court denied
plaintiff's motion for a directed verdict on the issue of
defendant's negligence. This Court noted that the
coiiflicting testimony raised factual issues for the jury to
decide as to whether defendant entered the intersection first
(according him the right-of-way) or whether the vehicles
approached or entered the intersection at approximately the
same time (giving plaintiff the right-of-way), and whether
each driver kept the proper lookout. We held that a directed
verdict may not be predicated on such conflicts of material
fact. Thibaudeau, 653 P.2d at 859, 39 St.Rep. at 2102.
 In support of its conclusion that the defendant was
liable as a matter of law in this case, the District Court
cited Farris v. Clark (1971), 158 Mont. 33, 487 P.2d 1307;
Custer Broadcasting Corp. v. Brewer (1974), 163 Mont. 519,
518 P.2d 257; and Kudrna v. Comet Corp. (1977), 175 Mont. 29,
572 P.2d 183. All three cases involved accidents that
occurred prior to July 1, 1975 and were decided under the law
in existence prior to the adoption of Montana's comparative
negligence statute. In these cases, no comparison between
defendant's negligence as a matter of law for a statutory
violation and any negligence on the plaintiff's part was
allowed. However, that conclusion is no longer warranted
since the adoption of the comparative negligence statute.
Under the old contributory negligence rule, a plaintiff

could not recover if the plaintiff were negligent in any
degree. This is no longer true. Under the comparative
negligence statute, a plaintiff may recover where the jury
finds both the plaintiff and defendant to have been
negligent.
"[Tlhe negligence of the plaintiff does not bar
recovery so long as it is not greater than that of
the defendant. However, his recovery is reduced by
his own contributory negligence." Derenburger v.
Lutey (Mont. 1983), 40 St.Rep. 902, 904-05.
A plaintiff whose negligence is partially responsible for the
accident is no longer barred from recovery. Both parties may
be found partially responsible for the accident. Either
party's negligence may be evidenced by violation of a traffic
statute.
The dissent suggests that all jurisdictions that have
considered a statute similar to section 61-8-32(1), MCA, have
concluded that the primary duty always rests upon the
followj-ng driver. Without analyzing all jurisdictions, we
note that California's following-too-closely statute is
identical. to Montana's and California courts have held to the
contrary. See Annot. to Cal. Veh. Code S21703; Leighton v.
Dodge (1965), 236 Cal.App.2d 54, 45 Cal.Rptr. 820 (negligence
is not necessarily established as a matter of law when one
vehicle runs into the rear of another); Coppock v. Pacific
Gas & Electric Co. (1934), 137 Cal.App. 80, 30 P.2d 549 (what
is a reasonable and prudent distance to be maintained between

vehicles is a question of fact). See also, Annot., 85
k.L.R.2d 613, 636 (1962).
We hold that the defense of contributory negligence on
plaintiff's part is available to a defendant who has violated
a traffic statute. It is for the factfinder to determine the
comparative degree of negligence on the part of plaintiff and
defendant.
On the special verdict form, the jury answered "yes" to
each of the following questions:
"Question Number 1: Was [defendant] Terry Little
guilty of negligence which proximately contributed
to or caused the accident and injuries?
"Question Number 2: Was [plaintiff] Eva P. Reed
guilty of negligence which proximately contributed
to or caused the accident and injuries?"
Testimony about plaintiff's "sudden stop" in heavy
traffic for no apparent reason could be considered as
evidence of violation of the basic rule, which requires every
driver to drive in a careful and prudent manner. Section
61-8-303 (1), MCA; Jury Instruction No. 5. In a similar
manner, the evidence of defenda.ntls failure to stop in time
to avoid the rear-end collision could be found by the jury to
constitute following more closely than was reasonable and
prudent under the circumstances. Section 61-8-329(1), MCA;
Jury Instruction No. 6. The fact that both parties may well
have been guilty of statutory violations is a further reason
for leaving the comparison of the negligence to the jury in
this case.
We conclude that the jury must consider evidence of
negligence from violation of a highway traffic statute, which
was a proximate cause of the accident, with other evidence of
negligence on the part of both parties. The jury must then
weigh or compare the negligence of both parties in reaching
its verdict.
We reverse the order of the District Court granting
judgment to the plaintiffs notwithstanding the jury verdict
and granting a new trial. On remand the original judgment is
to be reinstated awarding nothing to plaintiff and costs to
defendant.

We concur:
Mr. Justice John C. Sheehy, dissenting:

I dissent.
The District Court, having heard four days of testimony,
determined on motion for new trial that Terry Little was
guilty of negligence which was the sole cause of the rear end
collision, and ordered a new trial only on the issue of
da-mages sustained by Eva Reed.

The majority, either sitting as a jury or relying on a
jury verdict from an improperl-yand insufficiently instructed
lury, have overruled the district judge ' s determination, to,
in effect, reinstate the faulty verdict. The majority has
failed to analyze and to apply properly the law applicable to
vehicles in stop-and-go traffic, especially the duties
devolving upon drivers of following vehicles in stop-and-go
traffic.
The facts, taken in the light most favorable to Little,
and accepted. by Little in his briefs are simple:
". .
. This is a two lane, one way street. [Eva
Reed] was in the right lane. The roadway was flat
and dry. Visibility was clear. [I;ittl.el and his
family were proceeding in an automobi1.e immediately
behind Respondent Eva P. Reed's vehicle. The
traffic light ahead of both vehicles at the
intersection of First Avenue North and 20th Street
turned from green to red ...
"[Little] testified that he approached the subject
intersection and. stopped a customary dista.nce
behind Respondent Eva P. Reed's vehicle because of
the red light, the light changed from red to green,
and he began moving forward at a slow rate of speed
only after the Respondent Eva P. Reed's vehicle had
begun moving forward. [Little] testified that
Respondent Eva P. Reed's vehicle then came to a.
sudden, unexpected and unsignalled stop, for no
-
apparent reason, after having proceeded
approximately - - length, and that he did not
. one car
have sufficient time or distance to be able to
avoid the resulting collision with Respondent Eva
P. Reed's automobile." (Emphasis added.)
 On those facts, Little violated section 61-8-329(1),
MCA :

"The driver of a motor vehic1.e shall not follow
another vehicle more closely than is reasonable and
prudent, having due regard for the speed of such
vehicles and the traffic upon and the condition of
the highway."
Under that statute, where a driver of a vehicle is
following another vehicle too cl.osely, we follow the doctrine
that the primary duty of avoiding a collision rests upon the
following driver. Custer Broadcasting Corp. v. Brewer
(1974), 163 Mont. 519, 521-32, 518 P.2d 257, 259. Every
court in the country that has considered a similar statute
has arrived at the same conclusion, that the primary duty
rests upon the following vehicle to keep sufficient distance
between the vehicles so as to be able to avoid colliding with
the preceding vehicle in the event of a stop. The purpose of
that section is:
". . . the protection of every person or vehicle
which would reasonably be afforded a measure of
protection by the enforcement of the terms thereof.
Nothing contained in the section woul-d indicate any
intention to restrict its application. ' The
purpose of statutes regulating an6 effecting
automobile traffic on the highways is the promotion
of the safety of the public.'"
Bj-nion v. Armentrout (NO. 1960) I 333 S-W-2d 871

Wyoming agrees. Zanetti Bus Lines, Inc. v. Logan yo.

Since the primary duty of avoiding the collision is on
the following driver, the verdict of the jury in this case
that Eva Reed was 90 percent negligent is against law. The
jury in this case was not instructed that the primary duty
rested on Little to avoid the collision.
Little's statement of the facts that there was an
"unsignaled." stop can be disregarded. The only sta.tutory
duty not to stop is contained in section 61-8-336(5), MCA,
that no person shall stop suddenly without first giving an
appropriate signal to the vehicle immediately in the rear
"when there is opportunity to give such signal." Obviously
that statute does not apply here. Moreover the brake lamp on
the Reed automobile constituted a signal for a stop. Section
61-8-337, MCA, provides that any stop signal when required
can be given either by means of a hand and arm signal or by a
lamp. In the circumstances here, Eva Reed's brake lamp
provided a legal signal of her intention to stop.
There are certain conditions of traffic when a following
driver must anticipate that the preced.ing vehicle will
abruptly stop. In conditions of stop-and-go traffic on the
freeway, .there is a duty on the followj-ng vehicle to
anticipate a stop:
"Where there is no reason to anticipate the conduct
of the preceding driver, the driver who follows may
not be responsible for the collision. (Citing a
case) . However in the instant case, Russ
rear-ended Hahn in heavy rush-hour traffic. One
should expect sudden stops in heavy traffic
especially when it has recently been stop-and-go.
If Russ had been following at a safe distance, he
should have been able to stop before he collided
with Hahn's car. We can perceive of no explanation
for the accident, based on a review of the evidence
most favorable to Russ, which does not include
negligence on his part. Accordincfly, we believe
that the motion for directed verdict should have
been granted as to the issue of Russ' negligence."
Hahn v. Russ (Alaska 1980), 611 P.2d 66, 67-68.
And in New Mexico:
"However, the primary duty of avoiding a collision
does rest with the driver of the second. car; he is
negligent unless an emergency or unusual. condition
such as a sudden stop exists. Under certain
conditions, a driver is required to foresee the
likelihood of a sudden stop of a preceding car.

"Whether the circumstances were such that a sudden
stop or decrease in speed should have been
 anticipated rests with the jury . . ." Murphy v.
Frinkman ( N . M . 1978), 589 P.2d 212, 214-15.
The jury in this case was not instructed on the duty of
the following driver to anticipate a sudden stop in the
circumstances that existed here.
It is not unlawful in Montana (unless the majority has
now made it unlawful) for a driver at a busy intersection in.
Great Falls, Montana, having stopped for a red light, to
drive into the intersection when the light turns green and
then stop abruptly on perceived or actual danger. There is
no statute in Montana that prevents such a stopping by the
preceding driver. The only duty of the preceding driver is
to signal if the opportunity presents, and we have
demonstrated that the brake lamp in this case is a sufficient
signal. The following driver at that intersection has the
duty to anticipate such a sudden stop, the duty to keep a
lookout for the vehicle ahead and the duty not to follow so
closely that a. col.lision will result. The primary duty, it
bears repeating, to avoid the collision is on the following
driver. If that is a proper view of the law, and I submit it
is, then the jury verdict in this case finding Eva Reed 90
percent negligent in causing the collision is against law and
this Court is ignoring the law in reinstating the jury
verdict.
The majority has inaptly (one must not say ineptly)
applied section 61-8-303(1), MCA, against Eva Reed in
depriving her of a right to recovery here. In this case, the
only driver to whom that section applies is the following
driver, Terry Little. Section 61-8-303, MCA, js a speed
.
statute. It is entitled "Speed restrictions--basic rule."
It has no application to a person stopping his or her vehicle
on the public highway. A stopped vehicle cannot violate the
basic speed rule. It does have application to a driver who
does not drive "in a careful and prudent manner, - at a
and
rate of speed no greater than is reasonable and. proper under
the conditions existing at the point of operation . . ." The
duty of Eva Reed to bring her vehicle to a stop without
negligence derives from the common law, not from the basic
speed rule statute. The difference in law is enormous: if
the statutory basic speed rule applied to Eva Reed, she can
be considered negligent as a matter of law, if she violated
the statute. This is not so if her duty derives from the
common law. The majority has missed this point.
If, as Little admits to be true, Eva. Reed brought her
vehicle to a sudden stop after proceeding one car length
after the change of traffic light signal, and thereupon
Little collided with the rear end of Reed's vehicle, I see no
basis for a.ny jury to find Reed negligent. The circumstances
were totally in the control of Little. He did not have his
car under control, he failed to anticipa-te a possibl-e sudden
stop in traffic conditions, he did. not keep a lookout, and
his rate of speed was greater than reasonable and prudent
under the circumstances at the time. I therefore would hold
that the District Court was correct in setting aside the jury
verdict in this case and in ordering a new trial solely on
the issues of Reed's damages. We should follow the example
of the Washington Supreme Court in Bonica v. Gracias (Wash.
1974), 524 P.2d 232, 234, where the court said:
"Defendant presented no evidence of plaintiff's
contributory negligence except the fact that
plaintiff made an abrupt stop. Defendant failed to
prove that but for plaintiff's abrupt stop the
collision would not have occurred. That was
defendant's burden and he failed to meet it.
(Citing authority.) "
 Where contributory negligence does not exist, as here,

the District Court had a duty to act as it did and to hold.
the following driver solely liable for Reed's damages.

I concur in the dissent of 14r. Justice Sheehy.
Mr. Justice Daniel J. Shea dissenting:

f join the dissent of Justice Sheehy. Comparative
negligence was instituted to ameliorate the harshness of the
doctrine of strict contributory negligence. This does not
mean, however, that because a negligence concept has been
changed to ameliorate its harshness, that the question of
comparison must always go to the jury. There first must be
negligence to compare before there j s a legitimate issue of
comparative negligence. Here the plaintiff stopped, had a
right to stop, and had every right to assume that the
following vehicle would stop before striking plaintiff's
vehicle. The record shows no evidence that plaintiff was
neligent and Justice Sheehy has amply set forth the law on
the duties of the following driver.
I have no difficulty in holding that the following
driver was negligent as a matter of law. There being no
negligence on the part of the plaintiff, all the negligence
can properly be attributed to the defendant who rear-ended
the plaintiff's vehicle. I would affirm the trial court's
order granting judgment notwithstanding the verdict and
ordering a new trial on the issues of damages only.