Buck v. State

No. 84-504
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

TAMELA BUCK, ALICE KEYS, KELLY KEYS, JOHN
A. BUCK and DOROTHY J. BUCK, Individually
and as personal representatives of the estate
of ELIZABETH RUTH BUCK, deceased,
Plaintiffs and Appellants,

STATE OF MONTANA, a body politic
and MADISON COUNTY, a political
subdivision of the State of Montana,
Defendants and Respondents

APPEAL FROM: District Court of the Fifth Judicial District
of the State of Montana, In and For the
County of Madison,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:

For Appellant:
Corette, Smith, Pohlman & Allen; Dolphy Pohlman,
Butte, Montana, Argued
Hash, Jellison, O'Brien & Bartlett; James C. Bartlett,
Kalispell, Montana, Argued

For R.espondent
:

John H. Maynard and Daniel Hoven, Argued for
The State of Montana
Harrison, Loendorf & Poston; James T. Harrison, Jr.
Helena, Montana, Argued for Madison County

Submitted: May 15, 1986
Decided: August 4, 1986

Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

This is an appeal by each of the plaintiffs above named
from a judgment entered against them and in favor of the
State of Montana and the County of Madison after jury trial
in the District Court, Fifth Judicial District, Madison
County.
On August 30, 1980, at approximately 2: 15 o'clock a.m.,
Tamela Buck, Alice Keys, Kelly Keys and Elizabeth Ruth Buck
were traveling in a 1973 Volkswagon from Whitehall to their
home on the South Boulder River in Madison County, Montana.
A single car accident occurred at that time approximately one
mile southeast of Cardwell on Highway 359 in Madison County.
The driver, Kelly Keys, was injured as were two passengers,
Alice Keys and Tamela Buck. A third passenger, Elizabeth
Ruth Buck, died from injuries received from the accident.
Kelly Keys, Alice Keys, and Tamela Buck filed separate
actions against the State of Montana. Later the three
plaintiffs filed a consolidated amended complaint naming the
State of Montana and the County of Madison as defendants.
In 1983 John A. Buck and Dorothy J. Buck, individually
as parents and as personal representatives of the estate of
Elizabeth Ruth Buck, deceased, filed a complaint against the
State of Montana, and County of Madison. By later
stipulation, all of the plaintiffs' cases were consolidated
for trial in Virginia City, Montana.
Highway 359 was a secondary highway owned by the State
of Montana on the date of the accident. The section of
highway where the accident occurred ,was subject to a
maintenance agreement between the State of Montana and
Madison County.
The principal issue of fact in this case was what caused
the accident. The plaintiffs each contended that the section
of roadway where the accident occurred was curved and that
there was no curve sign or other warning of the upcoming
curve presented to the driver of the Volkswagon. They
contend that instead of following the curve, because of the
lack of warning, the driver drove in a straight direction off
the left side of the highway, corrected to get back on the
highway surface and then the Volkswagon collided. with a
wooden railing bridge. A shaft or timber from the wooden
bridge came through the Volkswagon, pinning the passengers in
the rear seat, and apparently causing the death of Elizabeth
Ruth Buck. The plaintiffs attack tge construction of the
bridge as unsafe.
The plaintiffs contended that the State of Montana had a
legal duty to design and construct Highway 359 in a
reasonably safe condition for motorists and that it failed
such legal duty; that the County of Madison had the legal
obligation to maintain Highway 359 in a reasonably safe
condition at the time of the accident and it failed its
contractual duty; and that these factors were a proximate
cause of the injuries suffered by the four persons in the
Volkswagon.
The State and County contended that there was no breach
of legal duty in the design or construction; that they
maintained the highway in a reasonably safe condition at the
time; that the driver of the vehicle Kelly Keys had a
statutory duty to drive upon the right side of the roadway
and not to drive while under the influence of alcohol; that
the driver failed to keep a lookout and that her breaches of
statutory and common law duties were the sole proximate cause
of the accident from which the injuries to all plaintiffs
arose. The State and County further contended that the
passengers other than the driver had a duty to protect
themselves from unreasonable risk of harm and that by
occupying the vehicle with a driver known to them to have
been drinking they breached that duty, were contributorily
negligent, and proximately caused their own injuries.
The evidence adduced by the plaintiffs indicated on the
evening before the accident they had gone into Whitehall to a
bar at the Borden Hotel to join friends already present. It
was Saturday evening of a Labor Day weekend. The parties had
some beers and danced. About 1 a.m. Kelly Keys and Alice
Buck went to an adjoining restaurant to eat a hamburger and
drink coffee. As the bar closed they purchased a six pack of
beer to take home. Kelly had stopped drinking, and had
consumed in all 2% bottles of beer. They left the bar at
about 2 a.m. and proceeded to the place were the accident
occurred.
The accident site had been designed and constructed in
1957 by the State of Montana. The roadway in that section
proceeds directly east for about a half a mile before
entering a sharp right hand curve at the end of the
straightaway. Half way through the right hand curve was a
wooden bridge with wooden railings on each side. A "curve
sign" had been designed for the curve and had at one time
been placed at that location, but on the night of the
accident the warning curve sign was missing.
At the curve, the Volkswagon went straight ahead,
crossed the center line and smashed into the left bridge
abutment. After the impact, Kelly was injured but able to
get out of the vehicle and find help from a neighboring
family. Alice and Tamela were both injured and had to be
removed by Allen Pochelon. All were taken to the St. James
Community Hospital in Butte from the Pochelon residence.
Eliza.beth Ruth Buck died while in the vehicle and her body
was removed and taken to the mortuary at Ennis, Montana.
The State contended this accident was a result of the
drinking by Kelly Keys, the driver. The State and County
contended that the evidence showed that Kelly Keys lost
control of the automobile, drifted across the middle of the
road to the left hand side and went off the paved surface of
the road 105 feet 11 inches before the final resting place of
the vehicle. The highway investigating officer testified
that no evasive action was taken until immediately prior to
the impact. At one time the automobile was off the paved
surface and on the gravel shoulder so that its right rear
wheel was away from the paved road a distance of four feet
six inches.
The nurse who accompanied the ambulance testified that
Kelly Keys was under the influence of alcohol; she testified
that Kelly Keys interfered with the performance of her duties
and needed restraining. A blood alcohol test was taken in
the hospital at 6 a.m. of Kelly Keys. It showed a .07 blood
alcohol content at the time. Dr. Kenneth H. Mueller
testified that for such a blood alcohol content to exist at 6
a.m., following the accident, "her blood alcohol would have
to have been .11 to .15" at 2 a.m. He testified that Kelly
Keys must have consumed six, perhaps as high as ten drinks.
He said it was impossible to have a .07 blood alcohol result
from 2% bottles of beer 3% hours before the blood test.
 Contrary evidence on the intoxication of Kelly Keys was
had from John Buck, the father of Elizabeth Ruth Buck, who
talked to Kelly Keys at the hotel in Whitehall just before
she left to drive the Volkswagon. From his close
observation, she did not appear intoxicated to him. Mr. Buck
later drove his automobile down the same roadway, and
testified that there was no warning curve sign along the
road's edge and that he himself had nearly run off the road
before he realized he was approaching a curve.
Other contra evidence on intoxication came from Allen
and Debbie Pochelon. They occupied a house a distance from
the site of the accident. Following the impact, Kelly Keys
got out of her automobile, and went back on the highway
towards the Pochelon residence. There she banged on the
door, and both Allen and Debbie observed Kelly Keys, her head
covered with blood, hysterical, but in their opinion there
was no indication of any intoxication or drinking. Kelly
Keys remained at the house until the ambulance came. The
other two passengers also came to the Pochelon residence.
The Pochelons saw no evidence of drinking in the other two
passengers.
Issues of fact were submitted to the jury on a special
verdict devised by the District Court. In the first two
issues, the jury determined that the State of Montana was
negligent, but that its negligence was not a proximate cause
of the accident. In issues 3 and 4, it also found that
Madison County was negligent, but that its negligence was not
a proximate cause of the accident. Under the form of the
verdict as submitted, they having so answered the questions,
none of the other issues of fact was decided by the jury,
whose foreman signed the verdict form which was returned to
the Court. On the basis of the special verdict, the District
Court entered judgment in favor of the State and of the
County.
Assignments of error raised by the appellants include
instructional error in refusing to instruct on concurrent
cause; and evidentiary error in refusing to allow evidence of
subsequent improvements to Highway 359; excluding the opinion
of a witness as to the effect on the driver of the missing
curve sign; and admitting evidence that the driver was not
wearing a seat belt. It is also contended by appellants that
the court erred in instructing the jury that it was unlawful
for a person to drive a motor vehicle while under the
influence of alcohol.
INSTRUCTIONS
The principal problem in this case lies in instructions
given and not given to the jury by the District Court.
Here we have a case of an injured driver suing the State
and the County for injuries that she claims were brought
about by the negligence of the State and the County. Her
case was consolidated for trial with the separate actions of
three passengers in her automobile who also sued the State
and the County for their claimed negligently caused injuries.
The rules that permit recovery by an injured driver from
negligent actors are different from those applying to
non-drivers in the same automobile who seek damages from the
same negligent actors. The instructions as given do not set
forth those differences.
Although the State is not an insurer of one who uses the
highways, State ex rel. Bjord v. District Court (1977), 175
Mont. 63, 67, 572 P.2d 201, 203, it is under a duty to keep
its highways in a reasonably safe condition for the ordinary
use thereof.
The State's duty extends to the paved portion of the
roadway, and to the shoulders and the adjacent parts thereof,
including guard rails, or bridge abutments, Cech v. State
(1979), 184 Mont. 522, 604 P.2d 97, as it is common
experience that vehicles may stray or swerve from the usual
traveled portion thereof. 39 Am.Jur.2d 886 Highways,
Streets, and Bridges § 488.
It is the further duty of the State to construct and
maintain its highways so that no latent nor hidden defect or
trap thereon constitutes an unreasonable danger to persons
and vehicles, including those portions of the highway where
it may reasonably be foreseen that vehicles might traverse
though off the paved portion of the highway. 39 Am. Jur. 2d
887 Highways, Streets, and Bridges § 489.
These duties apply whether the defect occurs in the
original construction, or later through repair,
reconstruction, resurfacing or maintenance. Beeman v. State
(1968), 29 A.D.2d 1040, 289 N.Y.S.2d 263.
When defects are present the State's duty to cure or
remove the same, or give warning thereof begins when it has
notice of the same and opportunity to act. Cameron v. State
of California (Cal. 1972), 497 P.2d 777; Parfait v. State
Department of Highways (Louisiana 1976), 334 So.2d 549.
The duty of the County in this case, under its
maintenance contract with the State, was so to maintain the
highway as to reasonably protect the traveling public,
including the maintenance and upkeep of highway warning
signs. The County had no duty with respect to the original
construction and design of the highway.
 The pertinent duties of the driver Kelly Keys in this
case included the duty to keep a lookout, to keep her
automobile under control, and to operate the same at a
reasonable speed under the circumstances. She had a further
duty not to drive her vehicle if she were under the influence
of alcohol.
Different rules from those of the driver govern the
passengers in this case. The negligence, if any of Kelly
Keys in driving the Volkswagon, cannot be imputed to the
passengers in the car. The negligence of Kelly Keys in
driving and operating the automobile would be no bar to
recovery by the passengers from the State and the County if
the State and County proximately caused the injuries to the
passengers. The default of a driver in disobeying statutory
provisions regarding the operation of the automobile cannot
by imputation be made the default of a passenger. Kudrna v.
Comet Corporation (1977), 175 Mont. 29, 572 P.2d 183;
Hernandez v. Chicago Burlington and Quincy Railway Company
(1965), 144 Mont. 585, 398 P.2d 953; Wolf v. Barry O'Leary
Inc. (1957), 132 Mont. 468, 318 P.2d 582.
If however a passenger agrees to ride in an automobile
with a person he feels to be intoxicated and an unsafe
driver, the passenger then assumes the risk, under our law a
form of comparative negligence, and if the County and the
State were also negligent, the case of the passenger would
call for comparison and apportionment of the damages.
Johnson v. United States (U.S.D.C. Mont. 1980), 496 F.Supp.
597, affd. 704 F.2d 1431.
 Having the foregoing principles in mind, we append in
the footnote below all of the instructions given by the court
in this case on negligence. It will be seen that the

1 Instructions relating to negligence issues given by the
Court follow:
INSTRUCTION NO. 2
-
The instructions of the Court apply to all parties to
the litigation unless otherwise specifically stated in the
particular instruction.
INSTRUCTION NO. 9
-
You are instructed that the "proximate cause" of an
injury is that cause which in the natural and continuous
sequence, unbroken by any new and independent cause, produces
the injury, and without which it would not have occurred.
There may be more than one cause of an injury.
INSTRUCTION NO. 10
-
You are instructed that the State of Montana has a duty
to construct and maintain its highways in a reasonable, safe
condition for public use; however, this does not make the
State an insurer of the highways.
This duty of the State to construct and maintain
roadways is subject to realistic, viable, and
state-of-the-art limitations.
INSTRUCTION NO. 11
-
The State is not required to undertake reconstruction of
a highway simply because standards for highway construction
have changed since the highway was originally constructed.
INSTRUCTION NO. 12
-
You are instructed that the County of Madison had a duty
to reasonably maintain Highway 359 on the date of the
accident and before.
INSTRUCTION NO. 13
-
You are instructed that Madison County has no
responsibility for the original design or construction of the
road or bridge involved in this matter.
INSTRUCTION NO. 14
-
You are instructed that it is unlawful for any person
who is under the influence of alcohol to drive or be in
actual physical control of a motor vehicle upon the highways
of this State.
instructions contain no proper mention of comparative
negligence, concurrent cause, or in the case of the
passengers, imputed negligence.

INSTRUCTION NO. 15
-
Whether a person involved in an accident was then
intoxicated or under the influence of intoxicating liquor is
a question for the jury to consider in determining whether he
was negligent. In making this determination, the question to
be answered is whether as a result of drinking intoxicating
liquor the individual's physical or mental abilities were
impaired so that he was unable to conduct himself with the
caution of a sober person of ordinary prudence under the same
or similar circumstances.
One is not necessarily intoxicated or under the
influence of intoxicating liquor as a result of taking one or
more drinks. The circumstances and the effect must be
considered.
Intoxication is no excuse for failure to act as a
reasonably prudent person would act. A person who is
intoxicated or under the influence of intoxicating liquor is
held to the same standard of care as a sober person.
INSTRUCTION NO. 15B
You are instructed that if a reasonably prudent person
would not be able to detect a driver's intoxicated state,
then that person cannot be denied recovery against the
Defendants on the basis of contributory negligence.
INSTRUCTION NO. 16
-
Every person operating ar driving a vehicle of any
character on a public highway of this state shall shall drive
the same in a careful and prudent manner, and at a rate of
speed no greater than is reasonable and proper under
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,
weather conditions, including the condition of the roadway
surface, and freedom from obstruction of the view ahead, so
as not to unduly or unreasonably endanger the life, limb,
property, or other rights of any person entitled to the use
of the street or highway.
INSTRUCTION NO. 17
-
The driver of a motor vehicle 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.
The duty to keep a lookout includes a duty to see that which
is in plain sight.
 (Because all of the offered instructions in this case
related to proximate cause, we Leave aside from this
discussion whether the jury should have been instructed on

INSTRUCTION NO. 18
-
Violation of a statute enacted for the safety of the
public is negligence. However a violation of law is of no
consequence unless it was a proximate cause of the injuries
sustained.
INSTRUCTION NO. 19
-
You are instructed that Montana law requires as follows:
Upon all roadways of sufficient width a vehicle shall be
driven upon the right half of the roadway.
INSTRUCTION NO. 20
-
Negligence is the doing of something which a reasonably
prudent person would not do, or the failure to do something
which a reasonably prudent person would do, under
circumstances similar to those shown by the evidence.
It is the failure to use ordinary or reasonable care.
Ordinary or reasonable care is that care which persons
of ordinary prudence would use in order to avoid injury to
themselves or others under circumstances similar to those
shown by the evidence.
INSTRUCTION NO. 21
-
You are instructed that if you find that either of the
defendants were negligent, before either of the defendants
can be held liable for the plaintiffs' damages, you must find
that defendants1 negligence was a proximate cause of the
plaintiffs1 injuries and resulting damages.
INSTRUCTION NO. 22
-
You are instructed that if you find negligence to have
been present on the part of either or both Defendants, this
test to determine if it was a proximate cause is to be
applied: Did the wrongful act, in a natural continuous
sequence of events, which might reasonably be expected to
follow, produce the injury? If so, it is a concurring
proximate cause of the accident even though the later
negligent act of another cooperated to cause it.
On the other hand, if the later act of negligence in
causing the accident was of such a character as not
reasonably to be expected to happen in the natural sequence
of events, then such later act of negligence is the
independent, intervening cause and therefore the sole
proximate cause of the injury.
the basis of legal cause rather than proximate cause. For a
discussion of legal cause and its application to this type of
case, see Rudeck v. Wright (Mont. 1985), 709 P.2d 621, 628,
42 St.Rep. 1380, 1388; and Streich v. Hilton-Davis (Mont.
1984), 692 P.2d 440, 450, 41 St.Rep. 2310, 2322 (Morrison, J,
concurring.)
Instruction No. 22, given by the court in this case (fn.
1 at P. 11) speaks of concurring proximate cause.
Undoubtedly the jury followed this instruction, because
although it found both the State and the County negligent, it
determined that such negligence was not a proximate cause of
the injuries here. Court's Instruction No. 22 comes from
Halsey v. Uithof (1975), 166 Mont. 319, 327, 532 P.2d 686,
690, as repeated in Giles v. Flint Valley Forest Products
(1979), 179 Mont. 382, 389, 588 P.2d 535, 539. Instruction
No. 22 in this case is defective because it doesn't take into
account that the negligence of the State and the County in
this case, if it existed, was a continuing state of

INSTRUCTION NO. 22A
The negligence of a deceased plaintiff is attributable
to the parents of the deceased.
INSTRUCTION NO. 23
Although there are two defendants in this action, it
does not follow that if one is liable, both are liable. Each
defendant is entitled to a fair consideration of his own
defenses and is not to be prejudiced by any finding that you
may make against the other. Except as otherwise indicated,
all instructions given to you govern the case as to each
defendant.
INSTRUCTION NO. 24
-
You are instructed that you are not to consider any
testimony with respect to seat belts in your deliberation of
this of this case (sic). The failure to use seat belts is
not a proper defense under the laws of the State of Montana.
negligence which did not end at the moment that the
Volkswagon veered from the paved roadway. In this case, the
negligent conduct of the State and the County, as found by
the jury, necessarily created or increased a foreseeable risk
of harm through the intervention of another force, by failing
to maintain a curve sign on the roadway, and by maintaining a
dangerously unprotected wooden bridge. As the Federal
District Court stated in Deeds v. U.S. (U.S.D.C. Mont. 1969),
306 F.Supp. 348, where the negligent conduct of an actor
creates or his action increases the risk of particular harm
and is a substantial factor in causing that harm, the fact
that the harm was brought about through the intervention of
another force does not relieve the actor of liability except
where the harm is intentionally caused by the third person
and is not within the scope of the risk created by the
actor's conduct. Court's Instruction No. 22 improperly
allowed the jury to determine that the driving of the vehicle
by Kelly Keys was the sole proximate cause of the injuries
received by her and her fellow passengers without giving
consideration to the continuing nature of the negligence of
the County and the State to and through the time of the
accident. If the jury found that the curve sign was missing,
or that the bridge was improperly protected, or both, it is
idle to argue that direct injuries resulting from such
conduct is not foreseeable, or "not reasonably to be expected
to happen in a natural sequence of events." Otherwise there
would be no necessity for curve signs or for bridge
protection.
For that reason alone, we must reverse this case. There
are however other factors in the instructions that deserve
comment.
 Since 1975, it has been the law in this State that
contributory negligence does 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 the contributory negligence was not greater than the
negligence of the person against whom recovery is sought. In
such case the damages are diminished in proportion to the
amount of negligence attributable to the person recovering.
Section 27-1-702, MCA.
Under that statute, it is the duty of the trial court,
where there is evidence supporting the negligent acts of both
the plaintiff and the defendant to instruct the jury on
comparative negligence. This is because a party is entitled
to instructions adaptable to his theory of the case, Meinecke
v. Skaggs (1949), 123 Mont. 308, 213 P.2d 237, and "trial by
jury" requires that all material issues of the fact be
submitted to and determined by the jury. Dasinger v.
Andersen (1959), 136 Mont. 277, 347 P.2d 747.
In like manner, the jury should have been instructed
that the negligence of the driver in this case, if any, was
not to be imputed to the passengers riding with her.
Further, if sufficient evidence existed in the record to show
that in the exercise of ordinary care the passengers should
not have entered the automobile because of the intoxication
of the driver, the jury should be so instructed as a separate
issue of negligence involving the passengers. Once again, if
the jury were to find the passengers negligent in that
manner, such negligence would again have to be compared with
the negligence of the defendant State and County.
RULINGS - EVIDENCE
ON
 The bridge on which this accident occurred was
constructed in 1957. Its width was no wider than the paved
surface of the roadway approaching it. The sides of the
bridgework were constructed of wood railings attached to
wooden uprights. The railings ran the length of the bridge.
The stringers or railings consisted of two 2x10s or 2x8s
bolted together and bolted to the uprights. Thus the butt
end of the stringers presented an area of 4x8 inches or 4x10
inches. It was the butt end of one of these stringers that
entered the Volkswagon automobile into and over the backseat
of the Volkswagon. There were no guard rails guarding the
approach to the bridge itself.
Sometime after the date of the accident on August 30,
1980, and while this litigation was going on, the State of
Montana improved the approach to the bridge and the bridge
itself by placing steel approach guard rails and a steel
bridge railing across the bridge. The briefs of the
defendants indicate the highway reconstruction took place in
1981, several months after the accident in question. It is
also stated in the State's briefs that the reconstruction was
planned prior to the accident and not in response to the
accident nor to any other accident. The State made a motion

- limine that the Court hold inadmissible any evidence or
in
offered evidence relating to the subsequent improvement
project on the highway.
The Court granted the motion - limine, subject to the
in
reservation that the evidence "might be admissible for
impeachment purposes."
Rule 407, Montana Rules of Evidence provides:
When, after an event, measures are taken which, if
taken previously, would have made the event less
likely to occur, evidence of the subsequent
 measures is not admissible to prove negligence or
culpable conduct in connection with the event.
This rule does not require the exclusion of
evidence of subsequent measures when offered for
another purpose, such as proving ownership,
control, or feasibility of precautionary measures,
if converted, or impeachment.
The plaintiffs called David Johnson, a highway
department engineer to the stand, who testified that prior to
August 30, 1980, it would have been feasible to use "W"-beam
steel rail for bridge railing and approach guardrail.
Thereafter the following colloquy occurred:
Q. But at the time of this accident on August 30,
1980, there was no such steel guardrail used either
across the bridge or at the entrances to the bridge
on the north or the south, isn't that correct?
A. At the time of the accident?
Q. At the time of the accident. A. Yes. Yes,
that's correct.
Q. Prior to the accident, and I know you've
reviewed a lot of records and a lot of plans, prior
to the accident, did the State of Montana ever plan
to change the guardrail and use approach guard rail
of the steel type on this particular bridge on 359?

An objection was made to the question, conference was
held in the chambers of the Court, where plaintiffs' counsel
made an offer of proof that Johnson would answer the question
in the affirmative and thereafter counsel would ask Johnson
why the planned improvements had not been made prior to the
accident, to which counsel did not know the answer.
The Court ruled that the question violated the motion -
in
limine and overruled the offer of proof.
Johnson had already testified that improving the bridge
and its approach by the use of W-beam steel railings was
feasible, so the Court was correct in refusing the offer of
proof and denying the question on that point. However, the
question went to two other issues of fact important in this
case, that is, notice of hazardous condition, if it was
hazardous, and time and opportunity to act. The Court erred
in denying the offer of proof and in not permitting the
witness to answer the proposed question on those grounds.
Such issues were an integral part of the plaintiffsf cases
they should have been allowed to pursue the knowledge and
opportunity of the state with respect to the condition, if it
was a hazardous condition, of the bridge. Again the Court
committed reversible error.
There are further reasons that were not raised by
counsel that the evidence should have been permitted.
Plaintiffsf expert engineer later testified that the use of
W-beam steel railings was recommended in a document entitled
"Highway Design and Operational Practices Related to Highway
Safety, Second Edition, 1974." promulgated by the American
Society of State Highway Officials. Defense counsel on cross
examination of Lee elicited that a part of the text of the
document stated "it is basically intended that the concepts
included, seasoned with proper judgment should be applied
after date of circulation of the book to the design of all
new construction which could be reevaluated and modified as
necessary without unreasonable rework or design effort."
On -
further cross examination of Lee, the following
occurred:
Q. Do you know if that special report has been
adopted by any organization for application on any
highway system in the United States of America.
A. I sure do not.
Q. Do you know specifically, I take it, from that
you know you don't know whether it's been adopted
for any highway system in the State of Montana?
A. That's right.
Thus the jury was given the impression, although it may
not have been true in this case, that the state had not
adopted the steel guardrail standards when in fact they may
have been in the plans then existing for reworking Highway
359.
Other evidentiary issues raised by appellants have been
reviewed by us and we find no error with respect to the same.
It is unnecessary to burden this opinion with their
recitation.
The judgment as to each plaintiff is reversed and
remanded for a new trial or trials.

1 . i
i ' . , . I

Justice

We Concur:
,/
,

Chief Justice

Mr. Justice L. C. Gulbrandson:
I concur in the result but not in all t p t is said In the
majority opinion. ,/
i
I

f i /Ub,.-&\
Justice
1