Fryda v. Vesely, 10037
| Decision Date | 24 September 1963 |
| Docket Number | No. 10037,10037 |
| Citation | 80 S.D. 356,123 N.W.2d 345 |
| Parties | James L. FRYDA, Plaintiff and Respondent, v. Frank VESELY, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Cherry, Braithwaite & Cadwell, Sioux Falls, for defendant and appellant.
John A. Engel, Avon, Ray Post, Tyndall, for plaintiff and respondent.
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:
'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 extended almost to the southerly edge of the road. Slightly to the west of this are some box-elder trees. At the north shoulder of the road is a fairly deep ditch. The collision occurred in this area of the road.
About 8:00 a. m. on September 1st, 1961, the defendant, an employee of the County Highway Department approached this curve from the east, driving a two-ton truck with a gravel box that was 90 inches wide, at a speed of 35 miles per hour. He was well acquainted with the road having driven over it on numerous occasions. Plaintiff, who also was familiar with it, approached the curve from the west driving a tractor going about 15 miles per hour. In its widest part, at the rear wheels, the tractor was 7 1/2 feet wide with a front portion that was much narrower. The surface of the road was dry and 'washboardy'.
Their vehicles collided at a point about 50 feet west of the clump of bushes. The left front of the gravel box hit the left rear wheel of the tractor, causing it to be broken. The impact also severed the tractor at its clutch housing and swung it around in the road. It came to rest facing north with the rear portion, the transmission part, near the ditch to the south and the front part, which contained the motor, to the north in about the middle of the road. The truck came to rest on its top in the ditch north of the road facing east.
Defendant testified that in approaching the curve he could see only to the curve. He first saw the tractor as he rounded the curve at which time it was only 15 feet ahead of him. He then turned his truck to the right but he had to cut back to the left to keep from going off the shoulder and into the ditch on the north. He thought that he drove on his side 'right until the accident'. There is evidence by others that the operator of a vehicle going west on this highway in his own lane of traffic has an open view of the 'S' curve for approximately 100 feet from the crest of the incline. From photographs in evidence it can reasonably be concluded that if one approaches this curve from the east in the wrong lane of travel, his view of traffic from the west is obstructed by the clump of bushes to the south of the road to the extent that he couldn't see such traffic until he had rounded the curve.
Plaintiff testified that he was driving his tractor in the lane to his right with the right rear wheel over on the shoulder and off the gravel and that he remained in that lane going around the curve. Because of the clump of bushes and trees to the south of the highway he was unable to see anyone approaching from the east. He didn't see defendant's truck any distance before it hit his tractor. He caught only a flash of it as it went by followed closely by the noise of the collision. He didn't then realize what had hit him. When the tractor came to rest he was still seated on it. The defendant's testimony was that when h...
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...foundation to enable him to form, or testify to, an opinion as to the place on the road where the vehicles collided. Fryda v. Vesely, S.D., 123 N.W.2d 345. The challenged evidence was that of defendant's expert witness, Dr. Ronald Nelson, a college professor of physics and engineering consu......
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...must look at the evidence, including all possible inferences to be drawn therefrom, in a light most favorable to the verdict. Fryda v. Vesely, S.D., 123 N.W.2d 345; Stygles v. Ellis, S.D., 123 N.W.2d Viewing the evidence in that posture, it appears plaintiff purchased the butter at a retail......
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...Counsel is bound by the grounds stated in his objection if it is overruled. Ross v. Foss, 77 S.D. 358, 92 N.W.2d 147; Fryda v. Vesely, 80 S.D. 356, 123 N.W.2d 345; Accord: State v. Dietz, N.D., 115 N.W.2d 1, citing 88 C.J.S. Trial § The evidence of stopping defendant's auto being without ob......
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State v. Muhs, 10163
...used in statutes as: 'gross' (Ch. 147, L.1933 in Melby); 'slight' compared to 'gross' (S.D.C.1960 Supp. 47.0304-1 in Fryda v. Vesely, 80 S.D. 356, 123 N.W.2d 345) and 'culpable' (SDC 13.2016 in State v. Bates, 65 S.D. 105, 271 N.W. ...