Anderson v. Huntwork
| Decision Date | 22 March 1939 |
| Docket Number | No. 8211.,8211. |
| Citation | 66 S.D. 411,284 N.W. 775 |
| Parties | ANDERSON v. HUNTWORK et al. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Huron; C. N. Hall, Judge.
Action by J. L. Anderson against Fred Huntwork and Paul Westling, operating as a sole trader under the name of Home Grocery, for damages sustained in an automobile collision. From a judgment for the plaintiff, the defendants appeal.
Reversed, with instructions.
Churchill & Benson, of Huron, for appellants.
Max Royhl, of Huron, for respondent.
Plaintiff brought this action to recover damages for the smashing, bending and destroying of plaintiff's automobile and for the loss of the use thereof as the result of a collision with the defendant Westling's truck at the street intersection of Beach Avenue, S. E., and Ninth Street, S. E., in the city of Huron, South Dakota, which truck was driven by the defendant Huntwork. The case was submitted to the jury who found for the plaintiff. The defendants made timely motions for a directed verdict and presented a motion for a judgment notwithstanding the verdict for the reason that the undisputed evidence established the plaintiff's contributory negligence as a matter of law. It is our opinion that the motions should have been granted. We believe, therefore, that the entire case may be disposed of by considering only those matters charged in assignment as errors in overruling the appellants' motions.
[1] This Court has dealt with the question of contributory negligence in a number of its cases but we realize that contributory negligence must be determined in the light of the particular facts of the case in which the question is raised. In the instant case, we are of the opinion that the evidence as a matter of law defeats the respondent's right of recovery. The evidence quite conclusively shows that the respondent failed to observe the ordinary rules of safety while approaching a street intersection with which he was familiar. The testimony shows that he lived in the vicinity and that he had driven upon this particular street for a long period of time. Respondent's testimony as to his knowledge of the intersection and what he did indicates that he was at fault and failed to protect himself or his property to avoid a collision with the truck approaching the intersection from the right. The evidence indicates that respondent was driving along without paying any attention to cars approaching the intersection, for had he looked he must necessarily have seen the on-coming car. Heberer v. Chicago, M., St. P., and P. R. Co., 59 S.D. 123, 238 N. W. 339.
[2] In view of the fact that the jury returned a verdict for the respondent we accept the testimony of respondent's witnesses as to their version of what actually happened immediately before and at the time of this collision. We quote excerpts from testimony offered by respondent. J. L. Anderson testified in narrative: ...
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