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Bartel v. State8/27/1985
of the accident, Bartel's blood stream was carrying between .103 and .213 percentage alcohol, which seriously impaired his sensory and mental functions. . . ."
Bartel also contends that finding of fact number 6, that Bartel was "thoroughly familiar with the intersection," is not supported by substantial credible evidence. We disagree. The record indicates that Bartel had driven past this intersection daily for many months prior to the accident. Bartel denied at trial that he had every driven through this intersection or that he had a friend in St. Ignatius. This statement was impeached at trial through Bartel's deposition in which he admitted having visited a friend in St. Ignatius and having driven through the intersection. The trial court specifically found that Bartel had previously been in St. Ignatius on several occasions and that Bartel had done extensive traveling in the area during the 6 years he lived in Ronan.
We hold there is substantial credible evidence to support the District Court's finding of fact number 6, as well as findings number 7 and 8.
III
Finally, we turn to an issue which was not raised by appellants but which was discussed in oral argument. The issue was whether the District Court erroneously concluded that Bartel's negligence was the sole proximate cause of the accident.
The court specifically found that under the light and weather conditions at the time of the accident an ordinarily observant driver could observe:
"A. From a distance of not less than 450 feet south of the north end of the traffic island the roadway itself could be seen to curve to the right, or east. B. The end of the island and its hook were visible from an approaching distance of not less than 350 feet, the point of the designated bypass to Highway 93. C. From a point approximately 200 feet to a point approximately 50 feet from the north end of the island the center line yellow stripe was clearly discernible, as were the white border stripes and the curbing of the island. D. From a distance of at least 150 feet south of the north end of the island an unobstructed passage to Highway 93 was clearly discernible. E. The triangular cautionary `yield' sign could be observed at least 400 feet south of the north end of the island."
Investigating Highway Patrol Officer Richard G. Schmauch testified as follows:
"Q Officer, based on your experience and your training, your investigation of this particular accident, your observations do you have an opinion as to the cause of this accident?
"A Yes, sir, I do.
"Q And what is that opinion?
"A Just carelessness on the part of the operator.
"Q And why do you say that?
"A Because I know that if a person was paying attention, obeying the laws and the signs in the area, that he would not have contacted that divider."
As previously set forth the District Court concluded that if Bartel had been driving in a reasonably careful and prudent manner and not under the influence of alcohol, he could have easily avoided the collision with the traffic island. He also concluded that Bartel was not in any way trapped by highway design, signing or maintenance. The findings and conclusions of the District Court regarding proximate cause are not challenged by Bartel on appeal.
We hold there is substantial credible evidence to support the District Court's findings and conclusions that Bartel's negligence was the sole proximate cause of the accident. See McAlpine v. Dahl (1978), 179 Mont. 23, 585 P.2d 1307; Jimison v. United States (D. Mont. 1967), 267 F. Supp. 674, af
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