NO. 87-459
I N THE SUPREME COURT O F THE STATE O F MONTANA
1988
DAVID A L A R I C PALMER, a p r o t e c t e d
p e r s o n , by MARTHA ROSE DIACON, h i s
conservator,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
FARMERS INSURANCE EXCHANGE,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e E i g h t h 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 C o u n t y of C a s c a d e ,
T h e H o n o r a b l e T h o m a s M c K i t t r i c k , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
S m i t h , B a i l l i e & Walsh; W i l l i a m J . G r e g o i r e a r g u e d ,
a n d J a m e s R . Walsh a r g u e d , G r e a t F a l l s , M o n t a n a
For R e s p o n d e n t :
D e n n i s P. C o n n e r argued, G r e a t F a l l s , M o n t a n a
J o h n C. R i s j o r d , K a n s a s C i t y , M i s s o u r i
Submitted: August 9, 1988
Decided: S e p t e m b e r 13, 1 9 8 8
Filed: 5EP 13 1
9
8
'
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
The defendant, Farmers Insurance Exchange, appeals a
9-3 jury verdict from the Eighth Judicial District, Cascade
County, finding it liable for $50,000 under two uninsured
motorist policies to cover a motorcycle accident in which
David Alaric Palmer suffered head injuries.
Palmer was injured on June 10, 1984, when his
southbound 750-cc motorcycle went off the east side of U.S.
89 approximately fifteen miles north of White Sulphur
Springs, Montana. His family subsequently filed claims for
$25,000 in uninsured motorist protection on each of two
policies issued by the defendant, claiming that a red semi
tractor-trailer travelling north had forced Palmer off the
road and had not stopped after the accident. The
defendant refused the claims. It cited the Highway Patrol
officer's report that attributed the accident to Palmer's
recklessness and excessive speed. Neither Palmer, who is not
able to recall the accident, nor the driver of the
tractor-trailer, who was never identified or located,
testified.
Serena Diacon was riding as a passenger on Palmer's
motorcycle at the time of the accident and suffered only cuts
and bruises. She testified at trial that Palmer was driving
south at about 50 m.p.h. when they came to a right-hand curve
in the highway. On the east side of this curve (to the left
of Palmer's southbound motorcycle), Stud Horse Road enters
the highway. Serena testified that Palmer was about two and
one-half feet from the center line in his proper lane when
she looked over Palmer's shoulder and saw the tractor-trailer
"half in our lane and half in their lane." This northbound
tractor-trailer, which was straddling the center line of the
highway, was travelling between 60 and 70 m.p.h., Serena
testified. She said she ducked behind Palmer and braced
herself as he swerved to the left; she could not say whether
Palmer passed in front of or behind the tractor-trailer. The
motorcycle travelled across the northbound lane of traffic,
across the approach to Stud Horse Road, and flew off an
adjacent embankment in pretty much of a straight line.
The only other witness to testify as to the position of
the tractor-trailer was Frank Atchison, a water truck driver,
who was following the tractor-trailer some 100 yards back.
His testimony was that the tractor-trailer was so far to the
right side of its proper lane of travel that it kicked up
dirt and dust as it passed over the approach to Stud Horse
Road. Through that dirt and dust, Atchison said he saw a
"flash" that he thought was a motorcycle going off the road,
but did not know whether it passed in front of or behind the
tractor-trailer. Atchison stopped at Stud Horse Road, where
he had planned to turn off originally, and helped Serena
Diacon as she climbed up the embankment. Atchison testified
that he was gaining on the tractor-trailer when the accident
occurred and was driving 45 m.p.h. Thus, he said he believes
the tractor-trailer was travelling no faster than 40 m.p.h.
and believes the motorcycle was travelling more than 55
m.p.h. The defense presented other witnesses who testified
that a red tractor pulling a trailer stopped several hundred
yards north of the accident scene to inform them that he
thought he had seen through his side mirrors a motorcycle
going off the road behind him.
The investigating Highway Patrol officer diagrammed the
scene and measured skid marks. He testified that the
motorcycle's skid marks started just east of the center line
(in the northbound lane), and extended in roughly a straight
line off and on for 90 feet before reaching the dirt road,
and then the embankment. His measurements show that the
motorcycle was airborne for twenty-eight feet from this point
and rolled another twenty-four feet. The patrolman did not
learn of the tractor-trailer's alleged involvement in the
accident until one day later, when he talked to Serena.
However, he inspected both lanes of traffic on the day of the
accident and found no skid marks or other signs that a
northbound vehicle had braked suddenly or hit any object. He
testified that this indicates the motorcycle passed behind
the tractor-trailer. Although his original report said the
accident was caused by Palmer's excessive speed, he said at
trial that he no longer has an opinion as to the cause of the
accident.
The plaintiff presented various experts to testify as
to the speed of the motorcycle. Professor Denman Lee, a
Montana State University physicist, testified that the length
of the skid marks, the height of the embankment, and the
distance of flight indicated the motorcycle was travelling
about 28 m.p.h. when it became airborne as it left the
embankment, and about 48 m.p.h. at the point on the highway
where it started to leave skid marks. Robert "Evil" Knievil,
a motorcycle stunt driver, testified that had the motorcycle
been travelling more than 25-30 m.p.h. when it left the
embankment it would have been airborne farther. Also
introduced as evidence were ambulance reports that indicated
Palmer had been injured when his motorcycle left the road "at
a moderate rate of speed" and a physician confirmed that
Palmer's injuries were consistent with moderate speed, over
defense's objection that such testimony was impermissible
hearsay as well as irrelevant.
The defendant raises these issues:
1. Did the District Court err when it allowed medical
evidence concerning the injuries even though the defendant
had stipulated to the severity of the injuries?
2. Did the District Court err by allowing the
plaintiff to display cer.Laim vfdeo tapes to the jury?
3. Did the District Court issue an improper "sudden
emergency" instruction?
4. Did the District Court err in computing prejudgment
interest?
We affirm on all counts except for the last one. We
remand the court's order granting prejudgment interest for a
new order consistent with this opinion.
This case presented difficulties in proof for both
parties. In a sense each party was attempting to prove a
negative since Palmer was asserting an unidentified
tractor-trailer driver, not he, was responsible for the
accident. In turn, the defendant asserted that this same
unidentified tractor-trailer driver was nowhere near the
center line of the highway, let alone straddling or crossing
it. The jury voted 9-3 to accept Palmer's version.
This Court presumes the verdict of a jury properly
instructed on the law to be correct and will accept the
evidence in a light most favorable to the prevailing party.
Mountain West Farm Bureau Insurance v. Girton (Mont. 1985),
697 P.2d 1362, 1363, 42 St.Rep. 500, 501. We do not disturb
lightly the verdict of a competent jury, Gee v. Egbert
(1984), 209 Mont. 1, 18-19, 679 P.2d 1194, 1203. Instead we
determine if substantial credible evidence exists in the
record to support that verdict and, if such evidence exists,
to affirm. Clark v. Norris (Mont. 1987), 734 P.2d 182,
184-85, 44 St.Rep. 444, 445; Gibson v. Western Fire Insurance
Co. (Mont. 1984), 682 P.2d 725, 736, 41 St.Rep. 1048, 1058;
Wilhelm v. City of Great Falls (Mont. 1987), 732 P.2d 1315,
1321, 44 St.Rep. 211, 218. However, we emphasize that
because the questions of fact in this case are so close, we
will afford the jury that heard the evidence the utmost
discretion. This is not to be read as an endorsement of the
jury's verdict since we may well have decided differently on
the facts of the case.
Medical Evidence
Dr. William Tacke, a rehabilitation specialist,
testified that initial ambulance reports and emergency room
records from the White Sulphur Springs Hospital indicate that
Palmer had suffered no fractures and that the bones of his
face and skull were not damaged in the accident. He also
testified that admission records from the Montana Deaconess
Medical Center in Great Falls showed no thoracic or spinal
injuries. Dr. Tacke testified that such results are
consistent with a moderate rate of speed and describes
Palmer's injury as a "closed-head injury," which is where
brain damage occurs without a skull fracture. The defendant
objected to this witness' testimony claiming that liability
was the only question at issue before the jury and such
medical evidence is not probative of which driver was at
fault. It also argued that the testimony represented
impermissible hearsay.
As the physician in charge of Palmer's rehabilitation,
Dr. Tacke may testify concerning health records made by other
health professionals if he has relied on them in forming
opinions or inferences. Klaus v. Hillberry (1971), 157
Mont. 277, 285-86, 485 P.2d 54, 58-59; In the Matter of the
Mental Health of G.S. (Mont. 1985), 698 P.2d 406, 409-10, 42
St.Rep. 451, 454-55; Garza v. Peppard (Mont. 1986), 722 P.2d
610, 613, 43 St.Rep. 1233, 1237; Rule 703,M.R.Evid. Dr.
Tacke first saw Palmer as a consultant for neurologists who
were treating him and later worked with Palmer when he was
deemed stable enough for rehabilitation. In these roles he
used other physicians' records, charts, and reports to treat
Palmer. When the physician uses other professionals' reports
to advise a patient or to provide care, any hearsay objection
to those reports fails. Ankenny v. Grunstead (1976), 170
Mont. 128, 133-34, 551 P.2d 1027, 1031. Thus, the
defendant's hearsay objection to the physician's testimony
was properly denied.
The physician's testimony also was relevant to the
case. Besides noting that the injuries were consistent with
moderate speed, the physician also testified that Palmer
suffers from post-traumatic amnesia and remembers nothing
about the accident. Both parties to this suit attempted to
prove the other driver was travelling at excessive speed
while they were driving at a reasonable pace. A lack of
bodily injuries is useful to show the force of the impact,
thereby creating an inference as to speed. See, Knuth v.
Murphy (Minn. 1952), 54 N.W.2d 771, 775. In Goodnough v.
State of Montana (1982), 199 Mont. 9, 647 P.2d 364, we held
that the circumstantial evidence that moments before an
accident the car's occupants were seen miles away relieving
themselves was admissible to create an inference as to speed
because its probative value outweighed its prejudicial
nature. Goodnough, 647 P.2d at 368, citing Rule 403,
M.R.Evid. In this case, Dr. Tacke's testimony was brief and
concise. Because defense counsel had the right to
cross-examine but chose not to do so, we find no prejudice.
At the conclusion of his rebuttal case, Palmer offered
Plaintiff's Exhibit 6.1, the White Sulphur Springs Emergency
Room report; 6.2, a dismissal form from the Montana Deaconess
dated September 29, 1984; and 6.3 the White Sulphur Springs
a.mbulance report. The defendant claimed these records lacked
foundation and were not the best evidence since no custodian
came forth to verify the records. The District Court
admitted the records as Rule 803(6) business records
exceptions to the hearsay rule.
Ordinarily such documents would not be
self-authenticating. See Rule 902, M.R.Evid. However, the
defense had stipulated to the authenticity of a series of
medical records including these three and had agreed there
would be no need to call a medical librarian. Exhibits 6.1
and 6.3, prepared the same day as the accident by trained
professionals, make no mention of alcohol being present or
absent from Palmer's system. This serves to rebut a defense
witness' claim that he smelled alcohol on Palmer as Palmer
lay in the ditch after the accident.
The defense asserts on appeal that its concession that
such records are authentic does not by itself make the
medical reports admissible. The fact that it had agreed that
neither side would need to call a records custodian and had
opened the door on evidence concerning alcohol eliminates any
harmful error in admitting this evidence. Under these
particular circumstances we will affirm on this issue since
the defense has been unable to identify any specific portion
of the reports as inaccurate.
Plaintiff's Use of Video Tapes
Defendant argues that the District Court erred when it
allowed counsel for Palmer to use Plaintiff's Exhibit 11 as a
demonstration and to enter Exhibit 2 3 into evidence. Exhibit
11 shows Evil Knievil driving southbound through the curve at
various speeds on a 750-cc motorcycle. Exhibit 2 3 was a
video tape made by the defense attorneys for their use in
preparing their case. It shows the curve from different
angles and at one point the camera is mounted on the
dashboard of a car as it drives through the curve.
We deal first with Exhibit 11.
This tape was shot from the shoulder on the east side
of the highway directly adjacent to the northbound lane of
traffic. The first several seconds of this video tape show a
semi-tractor and trailer driving in a northerly direction in
the wrong lane of traffic. It is apparent from the video
tape that the right inside rear wheel of the trailer is
tracking along the center line of the highway. This places
the left side of the tractor and trailer well within the
southbound lane. This tractor-trailer was - hired as part
not
of a reconstruction or demonstration; it just happened to be
driving through the area as the tape was made.
Serena Diacon testified that the tractor-trailer shown
in this tape occupies "the exact position" on the road as the
red tractor-trailer occupied on the day of the accident. She
voiced this opinion after viewing this video tape two times
almost three years after the accident. Serena admitted in
voir dire by defense attorneys that she had seen no other
tapes of trucks on that curve from which to choose which best
represented the position of the red tractor-trailer. She
also noted that she saw the red tractor-trailer on the day of
the accident from the front and this video tape showed the
truck from behind. However, she said she knew the
tractor-trailer on the tape was in the same position by
looking at the center line as it appears beneath the truck.
The defense objected to this demonstration as prejudicial and
lacking foundation.
Exhibits used for demonstration purposes are admissible
if they supplement the witness' spoken description of the
transpired event, clarify some issue in the case, and are
more probative than prejudicial. Workman v. McIntyre
Construction Co. (Mont. 19801, 617 P.2d 1281, 1291, 3 7
St.Rep. 1637, 1650, citing 29 Am.Jur.2dI Evidence 5 785.
Movies are considered to be reliable if they are accurate and
relevant with any change in circumstances explained. Brown
v. North American Manufacturing Co. (19781, 176 Mont. 98,
117, 576 P.2d 711, 722. The admission of such evidence lies
solely in the discretion of the District Court and we will
not reverse unless a manifest abuse of discretion is shown.
Brown, 576 P.2d at 722. A focal question in this case
concerns where the red tractor-trailer was located on the
highway prior to the accident. Since Serena testified that
this video tape shows that location it is relevant.
Questions concerning this video tape go not to its
admissibility for demonstrative purposes, but rather to the
weight to be given it.
As it admits or rejects various pieces of evidence, the
District Court must bear in mind Rule 403, M.R.Evid.:
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger
of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of
cumulative evidence.
To reduce the prejudicial effect of Exhibit 11, the
District Court admonished the jury before Serena testified:
THE COURT: Ladies and gentlemen, prior
to the testimony of this witness, I want
to read you a cautionary instruction.
"During the next witness' testimony, you
will see a video demonstration which the
Court has ruled may be shown. This
video tape was taken by the Plaintiff's
attorney approximately two-and-a-half
years after the accident.
"The video tape shows a semi truck and
trailer over the center line on U.S.
highway 89 approaching the Stud Horse
intersection from the south. It is
offered only to demonstrate visually the
testimony of Serena Diacon. You are not
to consider this video tape for any
other purpose. It is not allowed for
the purpose of showing that there is any
general tendency for semi trucks to
cross the center line on the curve in
question. In viewing the video, you
should consider the effect that the
location of the camera operation had on
the path taken by the semi. You should
also consider the presence of a vehicle
on the right side of the highway."
This admonition advises the jury that Exhibit 11 is
only a visual illustration of a part of Serena's testimony
and that it must be considered along with all other evidence
and that it is not proof that trucks routinely cross the
center line. In addition, the jury is told to consider what
effect the position of the camera had on the path of the
truck. This admonition is proper and serves to alleviate any
prejudice in Exhibit 11. We find no abuse of discretion in
admitting it for demonstrative purposes.
The video tape labeled Plaintiff's Exhibit 2 3 was made
the day that surveyor Herbert Sherburne measured the curve
for defendants but Sherburne testified that he had no role in
producing the video tape and had never viewed it until the
day he testified. Sherburne testified that his measurements
show the vigilant driver approaching the curve from the north
would have been able to see a 13-foot 4-inch high semi truck
and trailer 750 feet away from the point Palmer's skid marks
began.
Palmer introduced the exhibit through Sherburne in
order to impeach his calculation. The defense objected to
this use of Exhibit 2 3 because Sherburne had. not made the
video tape, knew little about photography and was not aware
of what type of lens was used to make the video tape, could
not locate his survey stakes on the video tape and could not
be expected to determine distances on a two-dimensional
screen. The District Court cited the video tape's probative
value, overruled the objection, and directed plaintiff to
show the video tape at normal speed.
Sherburne need not be the maker of the video tape to
introduce it. Pickett v. Kyger (1968), 151 Mont. 87, 97, 439
P.2d 57, 62. A video tape will be allowed as long as it
shows a true representation of the scene at the time in
question or any difference is explained. Lamb v. Page
(1969), 153 Mont. 171, 176-77, 455 P.2d 337, 340; Pilgeram v.
Hass (19461, 118 Mont. 431, 449, 167 P.2d 339, 348. Because
the defendant's witness had testified a driver in Palmer's
lane should have been able to see a truck 750 feet away,
Palmer had the right to test the witness on that assertion
and to impeach him if he could.
To do this Palmer played Exhibit 23, which at one point
showed a tractor-trailer driving north and negotiating the
curve. As this truck moved, Palmer's counsel on several
occasions froze the frame on the tape so he could ask
Sherburne how far away the truck was and whether it was in
its proper lane of travel. On three occasions when counsel
for Palmer asked Sherburne to indicate what distance on the
screen represented 750 feet the defense objected and was
sustained by the court. On another occasion when counsel for
Palmer asked Sherburne if anything had been edited out of the
tape, the defense objected and was sustained. By doing so
the District Court exercised its discretion not only in
permitting the video tape into evidence but also in policing
the cross-examination. We find no manifest abuse of
discretion that would warrant reversal.
In rejecting this issue of defendant's appeal, we rely
on what appears to be the fair application of discretion by
the District Court. The defendant makes a strong argument
that these video tapes were not intended to demonstrate any
witness' testimony or impeach any other witness so much as
they were intended to constantly display to the jury a
tractor-trailer either over the center line or right up
against the center line. We will not pass judgment here upon
that. The District Court's prompt and effective use of
discretion in this case protected the relevancy of this
evidence from damaging prejudice.
Instruction No. 13
The defendant claims the District Court improperly gave
a sudden emergency instruction. Instruction No. 13 read:
The following traffic regulations of the
State of Montana are designed to enhance
safety on the public highways of this
State:
"1. A vehicle shall be driven as
nearly as practicable entirely
within a single lane and shall not
be moved from such lane until the
driver has first ascertained that
such movement can be made with
safety.
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 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.
3. 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 the use of the street
or highway."
If you find that the unidentified truck
driver or David Palmer violated one of
the statutes just read to you, you will
find that such violation was negligence
unless on behalf of such party its [sicl
is proven by a preponderance of the
evidence that he did what might
reasonably be expected of a person or
ordinary prudence [sic], acting under
similar circumstances, who desired to
comply with the law. In order to
sustain such burden of proof, such party
must prove by a preponderance of the
evidence that he was faced with
circumstances which prevented compliance
or justified noncompliance with the
statute.
The defendant's objection concerns the final paragraph of the
instruction. This Court has ruled:
[A sudden emergency instruction] adds
nothing to the law of negligence and
serves only to leave an impression in
the minds of the jurors that a driver is
somehow excused from the ordinary
standard of care because an emergency
existed. This is not the law.
Simonson v. White (Mont. 1986), 713 P.2d 983, 989, 43 St.Rep.
133, 141-42. The use of a sudden emergency instruction was
"banned" in automobile accident cases. White, 713 P.2d at
990.
The instruction read to the jury in the present case is
more than a sudden emergency instruction. It presents three
standards of care expected of all drivers of motor vehicles
and says the failure to live up to the standards by any
driver constitutes negligence. It requires the jury to
decide not whether a sudden emergency erupted but whether
either driver in this case was negligent forcing the other to
take protective measures. Because it is more concrete than
the instruction disapproved of in White, 713 P.2d at 989, and
because it speaks to both drivers, we hold that this
instruction is one in comparative negligence, not one in
sudden emergency.
The defendant points out typographical errors exist in
the final paragraph but there is no record that any objection
was made while settling the instructions as to these
typographical errors or that the jury was confused by the
typographical errors. The misphrase "person - ordinary
or
prudence" is harmless in the context of the instruction
because it is clear that the instruction refers to the
actions of a reasonable person, i . e . the "person - ordinary
of
prudence." There is no appreciable difference and nc harm
has been done.
Prejudgment Interest
The District Court's amended judgment imposes
prejudgment interest of 10 percent per year from July 13,
1984, which was 30 days after the claim had first been
presented. Farmers asserts error since the policy's language
strictly limits Farmers' liability only to the amount of
coverage and also because the court misused the statute on
awarding prejudgment interest. We find this second
contention persuasive.
Three conditions must be met before 5 27-1-211, MCA,
applies. First, there must be an underlying monetary
obligation; second, the amount of recovery must be certain or
capable of being made certain by calculation; and third, the
right to recovery must vest on a particular day. Agri-Lease,
Inc. v. Gray (1977), 173 Mont. 151, 160, 566 P.2d 1114,
1118-19; Safeco Insurance Co. v. Lovely Agency (Mont. 1985),
697 P.2d 1354, 1356, 42 St.Rep. 509, 511-12; Byrne v. Terry
(Mont. 1987), 741 P.2d 1341, 1343, 44 St.Rep. 1620, 1622.
When liability is contested, as it was here, the conditions
fail since no monetary obligation exists until the day the
jury determines the degrees of comparative negligence. The
right to recover does not vest until the jury renders its
verdict. McPherson v. Schlemrner (Mont. 1988), 749 P.2d 51,
54, 45 St.Rep. 33, 37. Palmer's right to recovery,
therefore, did not vest until the jury returned its special
verdict form on March 13, 1987 finding the unidentified
driver of the red tractor-trailer negligent and Palmer not
negligent. Palmer has no right to interest before the date
of the verdict.
Finally, we note that the parties bifurcated the bad
faith insurance claim from this matter of liability and the
bad faith claim is still pending. In his recitation of facts
on this appeal, Palmer has mentioned that Farmers denied his
claims in 1984. At that time Farmers claimed its uninsured
motorist policies did not take effect unless there was
"physical contact" with a "phantom vehicle." Farmers
believed such a provision to be lawful at the time. It was
not until June 19, 1985, one year later, that this Court held
j.n McGlynn v. Safeco Insurance Co. (Mont. 1985), 701 P.2d
735, 42 St.Rep. 882, that such a policy provision runs
contrary to the public policy and therefore is
unconstitutional. McGlynn, 701 P.2d 733-40. We do not
believe that Farmers' adherence to a policy it considered to
be lawful and which was later declared unconstitutional
establishes any liability upon the insurer for the time
period before the policy was struck down. We therefore would
urge counsel for Palmer, if he elects to proceed on the bad
faith insurance claim, to prosecute that case on allegations
concerning the insurer's actions subsequent to the McGlynn
decision.
Affirmed in part, reversed in part.
We concur:
Chief Justice
Justices
Mr. Justice Fred J. Weber dissents as follows.
I dissent from the majority opinion because Instruction
No. 1 3 was both unnecessary and confusing. Further, the use
of a sudden emergency instruction such as the one in the last
paragraph of Instruction No. 1 3 was disapproved in White.
Paragraph 2 of Instruction No. 1 3 is a statement of law
that a driver shall drive "in a careful and prudent manner 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." Paragraph 3 is a statement of law
which requires persons to drive "in a careful and prudent
manner" taking into account the conditions of traffic, the
vehicle, the surface, and the view ahead. The last paragraph
of the instruction then states that if one of the parties
acted in a way which "might reasonably be expected of a
person [of] ordinary prudence" but which was not in compli-
ance with one of the above laws, there is no negligence.
Read together these statements seem to excuse a person from
acting in a careful and prudent manner. That is not an
accurate statement of law.
As this Court has stated such an instruction "adds
nothing to the law of negligence and serves only to leave an
impression in the minds of the jurors that a driver is some-
how excused from the ordinary standard of care because an
emergency existed." White, 7 1 3 P.2d at 989. I would remand
for retrial without the use of an instruction like Instruc-
tion No. 13.
Mr. Justice L. C. Gulbrandson concurs in the foregoing
dissent. /'
Pr , /
Justice
i ;
/'
Mr. Chief Justice J. A. Turnage concurs in the foregoing
dissent.
TL~
Chief Justice