Alendal v. Madsen, 7999
| Decision Date | 05 October 1937 |
| Docket Number | 7999 |
| Citation | 65 S.D. 502,275 N.W. 352 |
| Parties | EUGENE ALENDAL, by his guardian ad litem Arthur Alendal, Respondent, v. NELS MADSEN, Appellant. |
| Court | South Dakota Supreme Court |
NELS MADSEN, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Turner County, SD Hon. Lucius J. Wall, Judge #7999—Affirmed Krause & Krause, Dell Rapids, SD Ervin P. Van Buren, Dell Rapids, SD Attorneys for Appellant. B. O. Stordahl, Sioux Falls, SD Attorney for Respondent. Opinion filed Oct 5, 1937
The defendant, it August, 1935, at 8:30 o’clock in the morning, was driving his car north on state trunk highway No. 18, in the city of Viborg, Turner county, SD At a point in front of the Kellar residence, the defendant’s car struck the plaintiff, a boy 12 1/2 years old, injuring him quite severely. The plaintiff was engaged in distributing milk and had hurried from behind a parked car just as defendant drove past. The defendant was driving an 18-foot long 1929 model Buick which weighed about 4,000 pounds. The four-wheel brakes on his car had recently been adjusted and were in good condition.
The defendant’s version of the accident, the events prior thereto, and those succeeding it, is substantially as follows: He testified that he observed a car parked on the pavement in front of him, and that two boys were standing on the west side of it. Nothing occurred as defendant’s car approached the other car, but, as the radiator of his car was about even with the radiator of the parked car, the boy (plaintiff) jumped from behind the parked car. That was the first indication defendant had of any one attempting to cross in front of his car, and, though he applied his brakes the instant the boy shot out from behind the parked car, he was unable to avoid striking the boy as he only had a car’s length in which to stop. Defendant further stated that the right fender of his car struck the boy and that when his car came to a standstill the boy slid off and fell to the pavement. Defendant immediately stepped on the gas to drive his car out of the way, and then stopped it a second time and went hack to where the boy, lay. He testified that she was driving at a speed of about 15 miles an hour, and that his car stopped after he applied the brakes in about the distance of the length of the car. A Mrs. Otto Nelson, a witness for the defendant, who was walking along the street, testified that she saw his car traveling at from IS to 20 miles per hour. On cross-examination she admitted that she might have stated that she estimated the speed to The 20 to 25 miles per hour.
Plaintiff’s controversial evidence is substantially as follows Christofer Sorenson, the driver of the parked milk car, who was sitting in the car, testified that he saw the Madsen car a block away, and that it came towards them at a speed of about 35 miles per hour. He further testified that he thought the boy had ample time to get across the street, and that the boy saw the car coming.
The plaintiff, Eugene Alendal, stated that he was almost 13 years old and that he had reached the eighth grade in school. In describing his actions at the time of the accident, he stated that he had a bottle of milk in his hand, that he jumped off the parked car on the right-hand side, and moved around to the back of the car. He looked south through the back window of the parked car and saw the Madsen car coming about 55 steps away. He looked north and started across the street on the run. Upon looking south again he saw the Madsen car close to him on the right, and about that instant it struck him. He testified that when he saw the car through the back window he thought he had plenty of time in which to cross. The record does not indicate any testimony that the defendant did anything to steer his car to the right or left in order to avoid the accident when he discovered the boy crossing in front of him.
At the conclusion of plaintiff’s evidence and at the close of all the evidence, the defendant moved for a directed verdict, which was denied. A verdict of $3,500 was rendered, and a motion for new trial made. Defendant has appealed from the judgment and order denying the motion for new trial.
Appellant, at the outset, charges the respondent with failure to plead, in his complaint, the exact speed that the appellant was traveling. In his objection, he refers to section 8636G, paragraph 8, of the 1929 Compiled Laws of South Dakota, and states “There is no allegation in the Complaint as to the speed, which the statute requires to be set forth in both the summons and complaint in a case of this kind.” The section referred to by appellant is found in chapter 251 of the 1929 Session Laws of South Dakota, in section 4, paragraph 8 thereof, at page 300. A portion of it reads as follows: “In every charge of violation of this section the complaint, also the summons or notice to appear, shall specify the speed at which the defendant is alleged to have driven, also the speed which this section declares shall Madsen. prima facie lawful at the time and place of such alleged violation.”
A portion of the title of chapter 251 is labeled “Uniform Motor Vehicle Act.” Examining the authorities for a construction of this particular paragraph, as to the necessity of pleading speed, we find that the Supreme Courts of North Dakota and North Carolina have both passed upon the meaning of specifying the speed at which the defendant is alleged to have driven, “in the summons and complaint and notice to appear.” In Hausken v. Coman et al., the Supreme Court of North Dakota, in a decision as late as April 7, 1936, held that this particular section of the statute does not apply to the pleadings in a civil action, and cited the North Carolina case of Piner v. Richter, 202 NC 573, as an authority holding on this same section of the Uniform Motor Vehicle Act. Upon an examination of the facts, as disclosed by the record, we are of the opinion that the respondent’s pleadings were sufficient, and that respondent was entitled to place in evidence the speed at which appellant was driving immediately before the injury to the respondent.
Appellant states that the respondent pleaded a lack of contributory negligence, and that, appellant having pleaded a general denial, it would be encumbent upon the respondent to establish by a preponderance of the evidence the lack of contributory negligence on his part, and that the burden was not upon the appellant to prove contributory negligence. Examining the pleading, we find that the respondent in paragraph 3 of his complaint makes the following allegations: “That all of the aforesaid damage and injury to the said Eugene Alendal was not due to any negligence on his part, nor were they due to any risk assumed by him. ...” The complaint then charges that the injury was caused by the appellant’s carelessness, recklessness, and negligence in operating his automobile at an excessive rate of speed, and driven in a negligent manner without regard of other occupants of the street, and not having his automobile under proper control, and in not having any regard of the rights and use of the occupants of said street. The appellant in answering did not plead contributory negligence. He argues that contributory negligence on the part of the plaintiff implies negligence on the part of the other party and that it cannot exist without it. It is his contention that the appellant was free from negligence and that, the respondent having pleaded in his complaint that he was free from negligence, his general denial placed the burden of proof squarely upon the respondent to show that he was free from negligence. Appellant, in addition to his general denial, pleaded as a specific defense his own freedom from negligence, and also specific acts and conduct of the respondent as being in fact the immediate and sole cause of the injury complained of.
We observe that, regardless of the pleadings, there was injected into the trial the question of contributory negligence. We also find that in the motion for a directed verdict appellant contended that the injury was the result of an unavoidable accident and resulted from Eugene’s conduct in darting out from behind the parked car and...
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