123 N.W.2d 345 (S.D. 1963), 10037, Fryda v. Vesely

Docket Nº:10037.
Citation:123 N.W.2d 345, 80 S.D. 356
Opinion Judge:RENTTO, Judge.
Party Name:James L. FRYDA, Plaintiff and Respondent, v. Frank VESELY, Defendant and Appellant.
Attorney:[80 S.D. 357] Cherry, Braithwaite & Cadwell, Sioux Falls, for defendant and appellant. [1] John A. Engel, Avon, Ray Post, Tyndall, for plaintiff and respondent.
Case Date:September 24, 1963
Court:Supreme Court of South Dakota
 
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Page 345

123 N.W.2d 345 (S.D. 1963)

80 S.D. 356

James L. FRYDA, Plaintiff and Respondent,

v.

Frank VESELY, Defendant and Appellant.

No. 10037.

Supreme Court of South Dakota.

September 24, 1963

Page 346

[80 S.D. 357] Cherry, Braithwaite & Cadwell, Sioux Falls, for defendant and appellant.

John A. Engel, Avon, Ray Post, Tyndall, for plaintiff and respondent.

RENTTO, Judge.

This motor vehicle collision case concerns the application of our comparative negligence statute. On special interrogatories the jury found that plaintiff's contributory negligence was 20% of the total combined negligence proximately causing the injury and that defendant's negligence was 80% of it. Accordingly the jury awarded plaintiff a verdict for $4,000 after finding that his total damage was $5,000. Defendant appeals from the judgment entered on the verdict.

Our comparative negligence law, SDC 1960 Supp. 47.0304-1, reads as follows:

[80 S.D. 358] 'In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence of the defendant was gross in comparison but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff; and all questions of negligence and contributory negligence shall be for the jury.'

Appellant's basic complaint is that no judgment should have been entered against him because his negligence was not gross in comparison with the contributory negligence of the plaintiff.

The accident happened on an 'S' curve on county highway 16, a gravel surfaced road in Bon Homme County. Approaching this curve from the east the highway is straight and level for some distance. At the end of this straightaway the highway apparently curves to the north slightly and then from a crest it goes down hill for a short distance as it curves to the southwest. From the bottom of the incline west the highway, which is a little over 22 feet wide, is level east and west but its surface is sloped to the south. Near the west end of this incline, to the south of the road, there was a high clump of chokeberry bushes with thick foliage that...

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