Anderson v. Lanning, 9148

• Decision Date: 13 November 1951
• Docket Number: 9148
• Citation: 50 N.W.2d 57,74 S.D. 161
• Parties: L.W. ANDERSON, Respondent, v. LEO LANNING, C. H. Connolly, and Michael Connolly, Appellants.
• Court: South Dakota Supreme Court

74 S.D. 161, 50 N.W.2d 57 (1951)

L.W. ANDERSON, Respondent v LEO LANNING,

C. H. Connolly, and Michael Connolly

Appellants

South Dakota Supreme Court

Appeal from Circuit Court, Union County, SD

Hon. John T. Medin, Judge

#9148—Affirmed

A. J. Beck, Elk Point, SD

Attorney for Appellants.

Donley & Crill, Elk Point, SD

Attorneys for Respondent.

Opinion Filed Nov 13, 1951

ROBERTS, Judge.

Plaintiff brought this action to recover damages for injuries to his person and property sustained in a collision between an automobile owned and driven by him and a pickup truck owned by defendant C. H. Connolly and Michael Connolly and driven by defendant Leo Lanning, their employee. The case was tried before a jury and there was a verdict for the plaintiff. From the judgment entered thereon defendants have appealed.

The collision occurred on November 5, 1948; about 4:15 p. m., two miles east of Elk Point, South Dakota, on Highway 77 which at the place of collision is a straight, level, two lane paved highway and runs generally in a northwesterly and southeasterly direction along a railroad right of way. At or near the point of the accident Highway 77 crosses an intersection of two section line highways.

The evidence on behalf of the plaintiff shows that he was driving his ambulance on an emergency call southeasterly in the right-hand lane at a speed of between 50 and 60 miles an hour; that he was at the time traveling with lighted red lights in front, but without sounding the siren; that defendant Lanning accompanied by A. V. Connolly and Joe Hirock was driving a Ford pickup loaded with cement blocks; that plaintiff observed defendants' truck approaching and when about 60 feet distant from plaintiff's automobile the truck turned to the left heading toward the south highway and across the lane directly in the path of the oncoming automobile; that the driver of the truck gave no signal indicating his intention to make the turn; that the front of the automobile came into collision with the right door of the truck; that the front wheels of the truck were near the edge of the pavement at the time of the impact; and that the wheels of plaintiff's automobile were on the pavement. As a result of the collision, A. V. Connolly was killed.

It is conceded that there was evidence sufficient to go to the jury on the issue whether defendant driver was guilty of negligence. Appellants ask reversal on the ground that it conclusively appears from the physical facts and undisputed testimony that plaintiff was guilty of contributory negligence. The car and the truck were about 60 feet apart when they came to rest and remained upright. Plaintiff's car was on the pavement facing northwest and the truck was in the ditch to the southeast facing in the same direction as the car. The testimony of the driver of the truck is that he approached the intersection at a speed of 15 to 20 miles an hour; that at the time of the impact the front wheels of the truck were off the pavement; that the right wheels of plaintiff's car were on the graveled shoulder of the highway; and that it seemed to him that the truck "was thrown through the air." Witnesses for appellants testified that there were no marks on the ground between the places where the truck left the highway after the collision and where it came to rest. It is the claim of appellants that the facts demonstrate excessive speed on the part of the plaintiff and that if he had kept within a proper speed and in his lane of travel he would have been able to turn aside to avoid the collision. We have carefully considered the evidence and have been unable to discover wherein the so-called physical facts conclusively demonstrate the precise place of collision and that the accident did not happen as plaintiff claims. There may have been some merit in these contentions before a jury, but the asserted facts are not certain proof of what happened.

Appellants assign as error the giving of instruction No. 9 which is as follows:

You are instructed that under the law of this state one has the right to drive a car at a speed of 60 miles per hour in the daytime. You are further instructed that under Sec. 44.0308 of our Code, this speed limit shall not apply to public or private ambulances when traveling in emergencies. This exemption shall not, however, protect the driver of any such vehicle from the consequences of a reckless disregard of the safety of others, so that if in this case the plaintiff was driving the Packard car as an ambulance in an emergency, the plaintiff would be authorized to drive faster than sixty miles per hour, but if there...