Alborn v. Arms

• Court: South Dakota Supreme Court
• Writing for the Court: LEEDOM; SMITH
• Citation: Alborn v. Arms, 74 S.D. 277, 52 N.W.2d 101 (S.D. 1952)
• Decision Date: 18 February 1952
• Docket Number: No. 9236,9236
• Parties: ALBORN v. ARMS et al.

Page 101

52 N.W.2d 101

74 S.D. 277

ALBORN v. ARMS et al.

No. 9236.

Supreme Court of South Dakota.

Feb. 18, 1952.

Bailey, Voorhees, Woods & Fuller and F. M. Smith, all of Sioux Falls, for plaintiff and appellant.

Carl W. Miller, Flandreau, for Leslie Arms, Guardian Ad Litem for Darrel Arms, Leslie Arms, defendants and respondents.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, for Edward Cox and William Cox as Cox & Sons, contractors, a co-partnership, defendants and respondents.

LEEDOM, Judge.

Plaintiff, the appellant here, brought this action as special administrator of the estate of his infant son to recover damages arising from the death of the child in an automboile and truck collision. The action was brought against defendants represented by different counsel. Two of the defendants are a father and his 19 year old son, Leslie and Darrel Arms, owner and driver respectively of the truck involved. The other defendants are a father and son, Edward and William Cox, copartners in the business of graveling roads for whom the defendants first mentioned were hauling gravel. For convenience and clarity the defendants first mentioned, that is the truck owner and driver, will be referred to as Armses and the son who drove the truck as Darrel; and the other defendants, the gravel contractors, as Coxes.

The Armses were engaged in hauling gravel under an oral agreement with the Coxes in the performance of a contract, also oral, that the Coxes had with a township board to gravel a township road. The accident occurred at an intersection of U. S. Highway 14 running east and west, east of Brookings, South Dakota and a graveled county road referred to as the Flandreau road running north and south north of Flandreau, South Dakota. Darrel drove his truck loaded with gravel north toward this intersection. Plaintiff drove his Plymouth automobile in which his family were passengers west on highway 14 toward the intersection. A stop sign is placed near the southeast corner of the intersection east of the Flandreau road to warn drivers on that road to stop before entering the intersection. The vehicles collided in the intersection and plaintiff's son about 3 months old was killed.

The circuit court directed the jury to return a verdict for Coxes, the gravel contractors, on a motion made at the end of the case on the grounds that there was no evidence of their liability under the doctrine of respondeat superior and that the evidence conclusively established that the Armses were independent contractors.

The defendants Arms had moved for a directed verdict at the end of plaintiff's case and again after all parties had rested on the ground, among others, that plaintiff's own negligence contributed to and was the proximate cause of the accident. The court denied these motions. The jury returned a verdict for plaintiff of $6,250 against the Armses. Their motion for judgment notwithstanding the verdict based on all the grounds urged in the previous motions, and the whole record, was granted.

The appeal presents two questions only: (1) Does the evidence establish as a matter of law that the Armses were independent contractors? and, (2) Does the evidence establish as a matter of law that plaintiff's conduct at the time of the accident constituted contributory negligence? We answer the first affirmatively and the second in the negative. It is our opinion that the circuit court properly directed a verdict for the defendants Cox and erred in granting the motion of the defendants Arms for judgment n. o. v.

We consider the question involving the respondents Arms first. For our purpose the jury verdict establishes Carrel Arms's negligence. All we consider is the contributory negligence of appellant; and in such consideration we are bound to view the evidence in the aspects most favorable to appellant.

Appellant proceeded west on U. S. Highway 14 at midday about 55 or 60 miles per hour returning with his family to their home in Brookings after a visit with relatives in Minnesota. The highway was of bituminous surface and dry. The day was overcast. Appellant was familiar in a general way with the highway, having made several such trips, knew it was a through route and that there were intersecting secondary roads equipped with signs to stop traffic before entering the arterial highway on which he traveled. On cross-examination appellant testified thus:

'Q. As you approached the intersection where the accident occurred, did you look to the south for approaching vehicles? A. No.

'Q. Did you look to the north for approaching vehicles? A. No.

'Q. Did you see any vehicles approaching from either the north or south? A. No.'

On redirect he testified:

'Q. Now as you were driving down that highway, west on Highway 14, on October 3, 1949, and as you approached this particular intersection, where were you looking? A. Down the road and taking in what my regular cone of vision was.

'Q. Now as you looked down this highway, did you have a certain amount of vision to the right and to the left? A. Yes. * * *

'Q. Now I will ask you, Melvin, as you came out of that swale [1/8 to 1/4 mile from the intersection] going west, did the vision that you had to the left, was it sufficiently wide so you could see the stop sign placed to the left of the oil on the Flandreau Road? A. Yes.

'Q. And do you recall seeing that stop sign? A. I do.

'Q. Now I will ask you, Melvin, was there any vehicle in sight in or around that stop sign at that time? A. No.'

Appellant continued to maintain a continuous lookout ahead and did not see the truck coming into the intersection until he was within 50 to 75 feet from the intersection. His contributory negligence, if it exists as a matter of law, must be based on the conduct revealed by the foregoing testimony. What appellant did or failed to do to avoid the collision in the emergency after seeing the truck at close proximity quite clearly had no relation to proximate cause as the accident then as a practical matter was inevitable. The split second timing involved did not permit of the execution of such good intention as may have been formed by either driver.

The evidence shows that traffic converging on either of the two roads toward the intersection was partially obscured to motorists on the other road by the swale referred to in highway 14, by a fully grown cornfield south of highway 14 and east of the Flandreau road, and by an elevation of ground in the cornfield; and that northbound traffic on the Flandreau road was substantially hidden for a short distance by a grove of trees along the east side of the road about a quarter of a mile south of the intersection.

The jury may reasonably have found from the evidence that Darrel wholly failed to stop his truck at the intersection; or if the jury chose to believe Darrel's testimony that he stopped before entering the intersection the point of stopping could have been from 10 to 50 feet or even a greater distance south of the stop sign which would place the vehicle while stopped 60 to 90 feet or more south of the tarred surface of highway 14. Different witnesses gave varying versions of the degree of obscurity of converging traffic on, and viewed from this point and other points down to the grove on Flandreau road, all in relation to various points on highway 14 from the intersection to the swale.

Except for such failure of duty as may be found in the quoted testimony there is no evidence of any degree of carelessness or negligent operation of his car on the part of appellant prior to the time he first saw the truck.

It is contended by respondents Arms and it was apparently the position of the trial court that the evidence clearly establishes the fact that appellant did not 'look' as he approached the intersection and that he therefore, as a matter of law, was guilty of contributory negligence. We hold such view unjustifiable under the evidence. Reasonable men certainly could infer from the quoted testimony, and in fact the conclusion seems inescapable, that appellant maintained a lookout to a greater or lesser degree, and therefore did 'look' as he approached the intersection. Appellant's admission that he did not 'look to the south' is not inconsistent with his statement that the area...