Anderson v. Adamson

• Decision Date: 16 January 1962
• Docket Number: No. 9914,9914
• Citation: 112 N.W.2d 612,79 S.D. 429
• Parties: Venard R. ANDERSON, Plaintiff and Respondent, v. Eugene ADAMSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 612

112 N.W.2d 612

79 S.D. 429

Venard R. ANDERSON, Plaintiff and Respondent, v. Eugene ADAMSON, Defendant and Appellant.

No. 9914.

Supreme Court of South Dakota.

Jan. 16, 1962.

Sam D. Sechser, Sioux Falls, for defendant and appellant.

T. M. Bailey, Jr., Sioux Falls, for plaintiff and respondent.

SMITH, Judge.

This litigation arose out of a collision of motor vehicles of the parties which occurred in the 300 block of West 9th Street in a business district of Sioux Falls, South Dakota. Just prior to the event plaintiff had entered his vehicle, which was parked facing east parallel with the south curb in the space assigned to the first parking meter west of the alley. He was intending to travel east along the south lane of the street. At about the same time defendant was approaching from the east along the north side of the street. He was intending to make a left turn to the south into the above mentioned alley. After defendant had made his turn toward the alley, and plaintiff had pulled out in a northeasterly direction from the curb, the vehicles collided on the south side of the street opposite the opening to the alley. In this action plaintiff recovered the full amount of damage to his automobile. Obviously the verdict was based upon a conclusion that plaintiff was not guilty of contributory negligence as averred by defendant. The appeal is by defendant.

The first contention of the defendant deals with an instruction of the court to the jury reading in part as follows:

'The Ordinances of the City of Sioux Falls do not authorize a left turn from a street into an alley, as defendant was attempting to make at the time the collision occurred. The action of the defendant in this regard was negligent. Having established that fact it then becomes necessary for you the Jury to determine whether that act of the defendant proximately caused the accident which occurred and the damages which the plaintiff thereafter sustained * * *.'

We are told that this instruction was erroneous because 'The record does not show any Sioux Falls Ordinances prohibiting or regulating left hand turns into alleys. The instruction does not state that such turns are prohibited by city ordinance, but rather states that they 'are not authorized."

To regulate the use of motor vehicles by ordinance is within the power of the City of Sioux Falls. SDC 45.0201(32) and 45.0201(19); City of Sioux Falls v. Peterson, 71 S.D. 446, 25 N.W.2d 556. The pertinent ordinances of that city were not placed in evidence and are not a part of the settled record. Although such ordinances were neither pleaded nor offered in evidence, the municipal court in which the action was brought was required to take judicial notice of the same as the applicable law of its jurisdiction. City of Milbank v. Cronlokken, 29 S.D. 46, 135 N.W. 711, Ann.Cas.1914C, 1231. However, on appeal from a judgment of a municipal court, a reviewing appellate court will not take judicial notice of such ordinances. City of Arlington v. Butler, 59 S.D. 443, 240 N.W. 496 and McDonnel v. Lakings, S.D., 99 N.W.2d 799.

From considering the charge of the court as a whole, we understand it to have employed the word 'authorize' in this questioned instruction as synonymous with 'permit', to convey the meaning that the ordinances of Sioux Falls do not 'permit' such a left turn as defendant was attempting. Without knowing judicially that the ordinances of Sioux Falls do not 'prohibit' a left turn such as defendant attempted, we are not in position to determine whether the assailed instruction is erroneous and prejudicial. The proceedings of the trial court are presumptively correct. Dyea Electric Light Co. v. Easton, 15 S.D. 572, 90 N.W. 859; Hardman v. Lasell, 55 S.D. 176, 225 N.W. 301; and Dwyer v. Christensen, 77 S.D. 381, 92 N.W. 199. In Steiner v. State, 78 Neb. 147, 110 N.W. 723, 724, it was aptly written:

'The judgment of the district court comes here attended with the usual presumptions of regularity. The records shows that the jury were instructed that the facts charged in the information were in violation of the ordinances of the city. In the absence of a showing to the contrary, it will be presumed that the facts before the court, including those of which it was required to take judicial notice, justified the court in so instructing.'

And see Wells v. State, 152 Neb. 668, 42 N.W.2d 363.

It follows that the record is insufficient to support this contention of defendant. What we have said in reference to this first contention of defendant rules a subsequent contention that the trial court erred in refusing a requested instruction said to be based on an ordinance not appearing in the settled record.

We are aware of the authorities which take the position that an ordinance being law in the municipal court should be judicially noticed as applicable law in the reviewing court. Orose v. Hodge Drive-It-Yourself Co., 132 Ohio St. 607, 9 N.E.2d 671, 111 A.L.R. 954. However, to adopt the suggested practice would be for us to shoulder a burden now resting on those more conversant than are the members of this court with the proceedings of the governing body of a particular municipality and its ordinances.

The contention is also made that the court erred in requiring defendant, a member of the Sioux Falls police force, to say whether he knew the ordinances of the city do not authorize a left turn into an alley. It being settled by the trial court's instruction, mentioned supra, that such a left turn is not authorized by the ordinances of Sioux Falls, it is apparent that this rule of the court could not have prejudiced defendant.

The defendant complains of prejudice from an instruction given to the jury reading as follows:

'You are further instructed that in the exercise of due care one must at all times see and know from having seen that the street or highway which he is using or intends to use is reasonably safe and clear for travel a sufficient distance ahead to make it reasonably safe to advance at the speed being employed by him. A driver must so drive that he can and will discover objects within the range of his vision and to drive so that he is enabled to bring his vehicle to a stop without colliding with any other vehicle unless such other vehicle moves into his path of travel unknown to him and in violation of the rules of the road.'

The phrasing we have emphasized is the portion of the instruction to which defendant takes exception. It is his position that the evidence offers no support for the theory that defendant's vehicle could have moved into plaintiff's path of travel unobserved and unknown if he had maintained such a lookout as the remaining portion of the instruction described. The contention must be considered in the light of the testimony of the parties, including some facts upon which they agree.

The south half of West 9th Street is 26 feet wide. The alley to the south is 14 to 16 feet wide. Plaintiff's car was parked with its front 4 feet from the west side of the alley. After the collision the cars lodged in contact opposite the opening of the alley, the point of contact being 12 or 13 feet north of the curb line and about on the center line of the alley. Plaintiff's car traveled 16 to 18 feet from its parked position to the point of contact with defendant's car.

According to defendant's version of the facts he entered West 9th Street from the north at the first intersection to the east of the point of collision. He saw plaintiff's car in its parked position just after he turned into the street but did not see plaintiff therein. The highest speed he reached in traveling the half block to the line of the alley was ten to fifteen miles per hour. He signaled for a left turn with his blinker lights from a point about half way to the alley line, and slowed down to about five miles as he was making his turn. He observed plaintiff's car without concentrating on it as he advanced. After he had turned and the front two-thirds of his car was across the center line of the street he discovered plaintiff moving forward. Plaintiff's head was then turned to the west. He hit his brakes. He judged each car moved about 8 feet after the moment he discovered plaintiff's movement.

Plaintiff testified he had just entered his car intending to travel east. He started the motor and then checked traffic from the west. He permitted two on-coming cars to pass by to the east. He then checked west again to see that all was open. He then looked forward and south for traffic in the south alley and across to the north alley. He said no car was coming along the street from the east. Thereafter he turned and looked west, let out his clutch and started. At first he testified that he did not see defendant's vehicle until the moment of the collision. He later testified that after he saw defendant's vehicle he had time to hit his brakes before the collision. He said defendant came toward him at an angle of 45 to 90 degrees, and he 'didn't see no signal; there was no signal' for a left turn.

It is settled law that even though plaintiff failed to take cognizance of defendant's vehicle approaching along the north side of the center line of West 9th Street, because it was there to be seen, he was as much bound as though he had seen it. Flanagan v. Slattery, 74 S.D. 92, 49 N.W.2d 27. If, however, the jury believed plaintiff's testimony that defendant came toward him at an angle of 45 to 90 degrees and there was no signal for a left turn, that which plaintiff would have been bound to have seen if he had made an earlier proper observation would have been defendant's vehicle moving along the north side of the street without anything to indicate an intention to turn left. In these circumstances there would have been a reasonable possibility that defendant's turn came at a time when plaintiff was making a required observation to the west. It will be recalled that both parties testified plaintiff was...