Albers v. Ottenbacher, 9939

• Decision Date: 13 August 1962
• Docket Number: No. 9939,9939
• Parties: Harry J. ALBERS, Plaintiff and Appellant, v. Jack OTTENBACHER, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 529

116 N.W.2d 529

79 S.D. 637

Harry J. ALBERS, Plaintiff and Appellant, v. Jack OTTENBACHER, Defendant and Respondent.

No. 9939.

Supreme Court of South Dakota.

Aug. 13, 1962.

Roswell Bottum and Burnell H. Hendricksen, Rapid City, for plaintiff and appellant.

Hanley, Costello & Porter, Rapid City, for defendant and respondent.

ROBERTS, Judge.

Plaintiff appeals from a judgment following a verdict for the defendant in an action to recover damages for personal injuries sustained by plaintiff when the car he was operating, while stopped in compliance with a traffic signal, was struck in the rear by a car driven by the defendant.

The principal ground urged by plaintiff for reversal is that the court erred in submitting to the jury the issue of the liability of the defendant. Plaintiff contends that the only verdict possible under the law was one in his favor and that the court should have directed a verdict for him on the issue of negligence leaving only the question for the jury of the amount of the damages; that inasmuch as the evidence showed without dispute that the brakes on defendant's car were not in working order at the time of the accident as required by statute defendant was guilty of negligence as a matter of law.

The evidence discloses that on February 20, 1960, at about 8:00 o'clock a. m., while plaintiff was driving his car in a southerly direction on East Boulevard in Rapid City, he brought it to a stop at an intersection in obedience to a traffic light. At the place of the accident, East Boulevard is a fourlane street. Plaintiff stopped his car at a distance of four to ten feet behind the car that had stopped immediately ahead of him. He remained in that position with his foot on the brake pedal for a few seconds when his car was struck from the rear by a car driven by defendant. Plaintiff had a conversation with defendant immediately after the accident wherein he said 'I guess my brakes didn't hold.'

Defendant testified that he had experienced no difficulty with his brakes and in the short distance from his place of residence to the scene of the accident he had no occasion to use his brakes until his attempted stop to avoid the accident; that he started to slow his speed when he saw the light change at the intersection; that he removed his foot from the gas and eased up behind plaintiff's car ready to apply his brakes; and that he did not use his emergency brake because there wasn't time and was too close to the Albers car to turn either to the right or left to avoid the collision. Concerning the details of the accident and condition of his brakes defendant called and examined as an adverse witness testified: 'Q. So that when Mr. Albers stopped for that stop light behind the car immediately in front of him you were about 36 feet behind him, were you? A. Yes. Q. And then you applied your brakes, did you? A. Yes. Q. And you say your brake didn't work? A. Yes. Q. Is that what you're telling us? A. Yes. Q. What else did you do after you applied your brake? A. I pumped it a couple of times. Q. And it didn't work you say? A. That's right. Q. What else did you do if anything? A. Nothing. Q. Nothing at all. There was an emergency brake on that car, wasn't there? A. Yes. Q. You didn't reach to pull that on, did you? A. No. * * * Q. So just that one time, you want us to believe * * * that your brakes suddenly failed to operate. A. Yes. * * * Q. You fixed it yourself later, didn't you? A. Yes. Q. You didn't take it to an automobile mechanic to have it fixed, did you? A. No. Q. And when you fixed it * * * all you did was put some fluid in the cylinder, wasn't it? A. Yes. Q. Now do you mean to tell us that never before had you had to pump your brakes to make them take hold? A. Never. Q. When it was short of fluid as you found it to be, is that it? A. That's right.'

SDC 44.0346 provides in part as follows:

'Every motor vehicle, other than a motorcycle, when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and to hold such vehicle including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels; if these two separate means of applying the brakes are connected in any way, they shall be so constructed that failure of any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels. * * * All brakes shall be maintained in good working order and shall conform to regulations set forth in this section.'

Defendant was required by the provisions of this statute to have his car equipped with brakes adequate to control the movement of and to stop and hold that vehicle and maintained in good working order. Defendant admittedly was operating his car with defective foot brakes and in violation of the statute. The question presented is whether the violation by defendant of the statute containing specific requirements as to brakes constituted negligence as a matter of law or whether the jury under the facts and circumstances could find that defendant was not negligent.

Negligence is the breach of a legal duty. It is immaterial whether the duty is one imposed by the rule of the common law requiring the exercise of ordinary care or skill not to injure another, or is imposed by a statute designed for the benefit of a class of persons which includes the one claiming to have been injured as the result of nonperformance of the statutory duty. The measure of legal duty in the one case is to be determined upon common law principles, while in the other the statute fixes a standard by which the fact of negligence may be determined. With reference to the adoption of the requirements of a legislative enactment or regulation as a standard of conduct in determining liability for negligence, we have said: 'The violation of a statute or ordinance, designed for the benefit of individuals, is of itself sufficient to prove such a breach of duty as will sustain an action for negligence brought by a person within the protected class if other elements of negligence concur. The statute or ordinance becomes the standard of care or the rule of the ordinarily careful and prudent person.' McCleod v. Tri-State Milling Co., 71 S.D. 362, 24 N.W.2d 485. When the standard is thus fixed and its measure defined, the omission of that duty is negligence in and of itself. Descombaz v. Klock, 58 S.D. 173, 235 N.W. 502; Dwyer v. Peters, 58 S.D. 357, 236 N.W. 301; Harvison v. Herrick, 61 S.D. 245, 248 N.W. 205; Iverson v. Knorr, 68 S.D. 23, 298 N.W. 28; Robertson v. Hennrich, 72 S.D. 37, 29 N.W.2d 329; Serles v. Braun, S.D., 113 N.W.2d 216; see also Restatement of Law, Torts, § 286.

Even though an act or omission involves the violation of a statute, liability therefor may be avoided by showing that under the circumstances the violation was excusable or justifiable, or as sometimes stated, an excused violation of a legislative enactment does not constitute negligence. McCleod v. Tri-State Milling Co., supra. A violation will ordinarily be excused where a person confronted with an emergency not due to his own misconduct fails to comply and in the emergency does or attempts to do what any reasonably prudent person would have done under the same or similar circumstances. Zeller v. Pikovsky, 66 S.D. 71, 278 N.W. 174, illustrates application of the rule. In that case the driver of an automobile observing a truck approaching from the opposite direction on the left side of the highway and unable by reason of obstructions to turn to the right swerved his car to the left in an attempt to avoid a collision. This court held that while the law required the driver to keep to the right upon meeting another vehicle he could not be held under the circumstances guilty of negligence. The rule of excusable violation has been recognized where an automobile skids across the center line of the highway without fault on the part of the driver and collides with an approaching vehicle. Vaughn v. Payne, 75 S.D. 292, 63 N.W.2d 798. The court in Florke v. Peterson, ...