No. 84-477
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
ANELLA AEMISEGGER,
Plaintiff and Appellant,
-vs-
WAYNE HERMAN,
Defendant and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable J. M. Salansky, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hash, Jellison, O'Brien & Bartlett; James C.
Bartlett, Kalispell, Montana
For Respondent:
Williams Law Firm; Richard Ranney, Missoula,
Montana
Submitted on Briefs: Jan. 31, 1985
I Decided: April 2, 1985
Clerk
Mr. Justice William E. Hunt, Sr. , del-ivered the Opinion of
the Court.
The appellant, Anella Aemisegger, appeals from a jury
trial that resulted in a verdict that the respondent, Wayne
Herman, was not negligent when the vehicle he was operating
ran into the rear end of her vehicle. Prior to the verdict
the appellant moved for a directed verdict. The motion was
denied. After the verdict the appellant moved for a jud.gment
notwithstanding the verdict or a new trial. The motion was
denied..
We reverse and remand with instructions to grant
appellant a new trial on the issue of d-amages.
The appellant had stopped her vehicle at a city
intersection controlled by a traffic light. The road
condition was partially snowpacked and icy. The respondent
was approaching the intersection in the same lane and
direction of travel as the appellant. The respondent braked
and slowed his vehicle but failed to reach a complete stop
before colliding with the appellant. The appellant filed a
complaint against the respondent for negligence in having
caused the accident and the resulting personal injuries.
The so1.e issue on appeal is whether the respondent was
negligent as a matter of law. The appellant alleges that the
respondent violated the basic rule set forth in
§§ 61-8-303 (1) and ( 5 ) , MCA:
"Speed restrictions--basic rule. (1) 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 grea.ter 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 the use of the street or
highway.
" i5) The driver of a vehicle shall, consistent
with subsection (I), drive at an appropriate
reduced speed when approaching and crossing an
intersection or railway grade crossing, when
approaching and going around a curve, when
approaching a hill crest, when traveling upon a
narrow or winding roadway, and when a special
hazard exists with respect to pedestrians or other
traffic or by reason of weather or highway
condition."
This hzsic rule statute requires a driver to drive in a
careful and prudent manner and at a rate of speed reasonable
and proper, taking into account traffic conditions and road
conditions. The appellant alleqes that the respondent
violated this statute because the respondent did not have his
vehicle under control, did not keep a proper lookout,
exceeded a reasonable and prudent rate of speed, did not give
a warning of the impend.ing collision by sounding his horn,
and did not seek to avoid the accident by turning to the left
unoccupied lane or to the right unoccupied curb area.
The evidence shows that the respondent was aware of the
road conditions. He was traveling at a reduced speed. He
was aware of the appellant's vehicle a.nd that it was stopped
for a red light. His exercise of care, however, was not
sufficient to avoid the collision and under the facts and
circumstances of this case he was negligent as a matter of
F.espondent cites R.eed v. Little (Mont. 1984), 680 P.2d
937, 41 St.Rep. 644, as being applicable to this case. The
facts of that case are considerably different. There the car
in front moved forward when the light turned green, stopped
and was struck from behind. In this case the appellant was
properly stopped and did nothing and could do not-hing that
would avoid the accident.
Reversed a.nd remanded with instructions to grant
appellant a new trial on t.he issue of damages.
We Concur:
1
1 - - ,
Justices