KIMES BY AND THROUGH KIMES v. Herrin

                                           No.    84-35

                I N THE SUPREME COURT O THE STATE OF M N A A
                                       F              OTN

                                                  1985




TONYA KIMES, by and t h r o u g h MICHAEL
KIMES, h e r f a t h e r a n d g u a r d i a n ,

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



GORDON HERRIN,

                            D e f e n d a n t and Respondent.




APPEAL FROM:       D i s t r i c t Court of t h e F i r s t 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 Lewis & C l a r k ,
                   The H o n o r a b l e Henry L o b l e , J u d g e p r e s i d i n g .


COUNSEL OF RECORD:

         For Appellant:

                S m a l l , H a t c h , Doubek & P y f e r , H e l e n a , Montana


         F o r Respondent :

                R o b e r t J. J o h n s o n , Lewistown, Montana


                                           -
                                           -           --




                                           Submitted on B r i e f s :             A p r i l 1 8 , 1985
                                                                ~       ~   ~   i August 2:0 ,
                                                                                  d ~ d          1985



Filed:
           AUG 2 d 1985
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.

     This is an appeal from a District Court jury trial
concerning     negligence   causing,    and     persona.1     injuries
resulting from, an automobile and farm vehicle collision.
The District Court had granted partial summary judgment to
the respondent, Gordon Herrin, by ruling that the collision
occurred at an "intersection."      The jury returned a verdict
in favor of the respondent.        The appellant, Tonya Kimes,
appeals from the granting of partial summary judgment and
from the District Court allowing certain testimony at trial.
     We reverse and remand.
     The appellant, Tonya Kimes, at the time, two years old,
was a passenger in a station wagon operated by her father,
                    .
Michael Kimes.        Her mother, Ella Mae Kimes, was also a
passenger.    The station wagon was traveling west along Herrin
Road which is a short distance north of Helena, Montana.          The
respondent, Gord-on Herrin, was traveling in a farm vehicle, a
self-propelled hay bale stacker, south on a short segment of
road. which is called Helberg Drive.     As the respondent drove
onto Herrin Road a collision occurred with the station wagon
operated by appellant's father.        The collj-sion occurred at
approximately 12:OO    noon, October 3, 1974.
            of area where collision occurrec
                                    occurred.      (Not to sca




                                           Gordon Herrin

                                                    Herrin Road
     York
                                              Michael Kimes
       Two issues are presented for review:
        1.   Whether     the    District        Court    erred     in    allowing
testimony       regarding      family      fighting       and     drinking       by
appellant's father.
       2.    Whether     the     District       Court     erred    in    granting
respondent's motion for summary judgment on the question of
"intersection."
       The first issue is whether the District Court erred in
allowing testimony regarding family fighting and drinking by
the appellant's father.            We hold that the District Court
erred in allowing this testimony.
       When the collision occurred, the appellant, then two
years    old,    suffered      injuries.         Several years          later she
exhibited symptoms incl-uding listlessness, sleepiness, and
staring.     The appellant sought to show that these symptoms
were related to injuries incurred in the collision.                             The
respondent      introduced      testimony       of      family    fighting      and
drinking by appellant's father to show that the symptoms were
caused by the appellant's environment and not the collision.
       Damages were at issue in this case.                   Critical to the
issue of damages was what caused the symptoms exhibited by
the appellant.         The questioned testimony had a tendency to
make the alleged cause of the symptoms more or less probable
than it would be without the testimony.                          The questioned
testimony    was    therefore      relevant       pursuant       to     Rule    401,
M.R.Evid.       All relevant evidence is admissible, except as
otherwise provided by law.              Rule 402, M.R.Evid.              However,
there is an exception to the admissibility of this testimony
that    applies    here--exclusion         if    its     probative      value    is
substantially outweighed by the danger of unfair prejudice as
set forth in Rule 403, M.R.Evid.                  The application of this
exclusion is discretionary with the District Court.                Rule
403, M.R.Evid.,      Annot.      This Court will not reverse an
evidentiary ruling that is within the discretion of the
District Court unless that discretion was clearly abused.
Board of Trustees v. Board of County Commissioners (1980),
186 Mont. 148, 157, 606 P.2d 1069, 1074.
       We hold that the District Court abused its discretion in
allowing this testimony.          The District Court demonstra.ted
some    concern    over   the    admissibility   of   the   questioned
testimony and allowed the testimony because the respondent
assured the District Court that home environment would be
medically linked to the appellant's symptoms.            We note that
both   parties'     expert witnesses     indicated    that poor    home
environment may cause symptoms such as were exhibited by the
appellant.        However, no evidence at trial established a
medical connection between poor home environment and the
appellant ' s symptoms.
       The second issue deals with the District Court granting
partial summary judgment and thereby establishing that the
collision occurred at an "intersection."              This ruling was
critical because it gave respondent the right-of-way.             At an
"intersection" the driver approaching from the left shall
yield the right-of-way.           Section 61-8-339, MCA.       If the
junction was an "intersection" the driver of the vehicle in
which the appellant was riding would have been required to
yield the right-of-way when they reached the junction at
approximately      the    same   time.     Section    61-8-339,    MCA,
provides :
       "61-8-339.     Vehicle approachin     or enterin
       intersection.    (1)  When two vegicl~s enter :  0
       approach an intersection from different highways at
       approximately the same time, 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 declzred in subsection
        (1) is modified at through highways and otherwise
        as stated in this chapter."
     We do not believe that the legislature intended that two
roads joined as shown on the above drawing were to be an
intersection within the meaning of S      61-1-212, MCA.     The
evidence does not show that the two roads joined here were
highways.     To establish an "intersection" the two roads must
be "highways."     Highways means the entire width between the
boundaries of every publicly mainta.ined way when any part is
open to the use of the public for purposes of vehicular
traffic.     Section 61-1-201, MCA; Leach v. Great Northern Ry.
Co. (1961), 139 Mont. 84, 94, 360 P.2d 94, 99.      The record
here shows that at the time of the collision the road the
appellant was traveling, Herrin Road, was a paved through
road.     The short segment of road upon which the respondent
approached Herrin Road was not a through road and therefore
could not form an "intersection" within the meaning of S
61-1-212, MCA.
     Reversed and remanded.




We Concur:
Justices
      IJr. Justice Frank B. Morrison, Jr. specially concurring:

      I concur in the result.            However, I would only reverse
the granting of         summary judgment in connection with                    the
right-of-way issue on the basis that the trial court erred in
taking     this    issue    from   the   jury.         In    my     opinion    the
connecting road upon which Herrin was travelling immediately
prior to the accident might be found to constitute a "public
approach ramp" within the meaning of 61-8-343, MCA.
      I do not believe         that the      legislature intended              for
"right-of-way" as referred           to in      S 61-8-339, MCA, to be
applied    to     intersections such       as    the    one       found   in   the
evidence here.      Most likely the right-of-way law was intended
to apply to the intersection of highways which meet and cross
at right angles.        However, I realize the Court must refrain
from legislating.          Legislative history is not illuminating.
Under the circumstances I would submit the factual question
to   the   jury    to   determine whether        the        short    segment of
questioned road qualified as a public approach ramp as that
term is utilized in the statutes.