Audiss v. Peter Kiewit Sons Co.
| Decision Date | 06 July 1951 |
| Docket Number | 280.,No. 14,14 |
| Parties | AUDISS v. PETER KIEWIT SONS CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
G. F. Johnson, Gregory, S. D., for appellant.
C. F. Kelsch, Mandan, N. D. (W. J. Sullivan and A. R. Scanlon, Mandan, N. D., on the brief), for appellee.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
The appellant, who was the plaintiff in this action, is the administratrix of the estate of her deceased husband. She is a resident of South Dakota. Defendant is a corporation organized under the laws of the State of Nebraska. In her complaint plaintiff alleged that her husband died in an accident caused by the negligence of defendant's agents, and sought recovery of damages. Defendant denied any negligence on its part, and counterclaimed against the plaintiff for damages caused defendant's equipment in the same accident, alleging that the accident was caused by the negligence of plaintiff's decedent. At the conclusion of all the evidence, the trial court sustained the motion of defendant for a directed verdict in its favor as to plaintiff's action on the ground that the evidence was insufficient to permit plaintiff to recover. Thereupon defendant dismissed its counterclaim and judgment for defendant was entered pursuant to the directed verdict. The single question presented on this appeal is whether the trial court erred in so directing a verdict for the defendant. The appellant insists here as she did on the trial that there was sufficient evidence to support a verdict in her favor.
Despite much conflict there was evidence from which it could fairly be inferred that:
The accident occurred between 6:30 and 7:00 P.M. in the evening of September 21, 1949. Plaintiff's decedent was driving a loaded cattle truck south on South Dakota Highway No. 73 in Perkins County, South Dakota. The decedent had entered Highway No. 73 at the point where that highway intersects U. S. Highway No. 12, some seven or eight miles north of the point of the accident. Highway No. 73 is a gravelled road with an oil surface, and at the point of the accident the oiled surface was 28 feet wide, with shoulders of three feet in width on each side. The highway at that point is approximately level, and the weather at the time of the accident was clear. It was after dusk when the accident happened, and all persons driving there at the time had their car lights on.
At the intersection of Highways 73 and U. S. 12, there were signs posted to the effect that Highway 73 was "Under Construction", and other signs setting the speed limit on 73 at 35 miles per hour. Highway No. 73, however, was heavily traveled, and for the seven or eight miles from the intersection to the point of the accident the road appeared to be completely repaired and there were no signs of construction work on it — that is, there was no road repair equipment either in use or parked along the highway, nor were there any flares or any other indications to show that the road repairs were not completed. Between the intersection and the point of the accident there were several signs posted setting the speed limit at 35 M.P.H.
The decedent's truck was the lead truck of a group of three cattle trucks proceeding south. The speed of all three trucks was between 30 and 35 miles per hour, and the drivers were maintaining a uniform distance between their trucks of 100 to 150 yards. The lights and brakes on the decedent's truck were in good operating condition, since the truck had been overhauled shortly before the accident. The decedent himself was an experienced truck driver who had done a great deal of night driving.
As the decedent proceeded down the highway on his proper side, he collided with a road packer, or road roller, owned and operated by the defendant. His truck was overturned and burned and he died before he could be gotten out of the wreckage.
Defendant's road roller was being operated by the defendant's employees in rolling the final oil coat on the highway. The roller was of the type called a tandem-roller — that is, there were two large rolling surfaces, positioned like the front and rear wheels of a bicycle. These rolling surfaces were 54 inches wide, the overall height of the roller itself was 6½ feet, and it weighed about eight tons without ballast. The rolling surfaces were of steel, as was the roller itself. The roller had been in use for some time on the road and the rolling surfaces were a dull, neutral color. The roller was of a dull or dark green color.
The lighting equipment on the roller consisted of four lights on the south end and three lights on the north end. On the front, or south, end of the roller there were two white lights with clear lenses about five inches in diameter, and two red automobile tail lights. These lights were mounted in pairs, a red light and a white one being mounted on the same bracket. On the rear, or north end — that is, the end which the decedent approached — there were two white lights with the five inch clear lens and one red light. It was admitted the other red light on the rear had been missing for some time. The testimony of the witnesses was conflicting as to which of these lights were lit at the time of the accident. The testimony of witnesses called for plaintiff was to the effect that at the time of the accident only one "very dim light" on the roller was shining toward the north, and that that light was white. There were no reflectors or any similar devices at any place on the roller.
The roller was operating in about the middle of the west lane of the highway and was proceeding south. According to testimony for the plaintiff the roller was not moving at all at the time of the collision, but according to the testimony of the man on it it was being operated toward the south at the rate of two miles per hour.
Just before the fatal accident another driver had been proceeding south on the same highway in a DeSoto car. This witness testified that he was going 35 miles per hour and that he came within 30 feet of the roller before he saw a white light shining north. This driver testified that he did not know which part of the roller he discerned first but that "it loomed up after I saw the light". He turned his car as sharply to the left as possible and barely avoided a collision. Other witnesses testified to the fact of the difficulty of seeing the roller. A driver going north had passed the roller just as the decedent was approaching going south. This driver and the decedent dimmed their lights for each other as they passed, as required by South Dakota law (S.D.C. 44.0356: "* * * Whenever a motor vehicle meets another vehicle on any highway it shall be mandatory to tilt the beams of the head lamps downward * * *").
There was evidence that the defendant had not fully complied with South Dakota statutes which called for reflectors on all commercial vehicles, and required all vehicles to have a red rear light visible for 500 feet to their rear. Further, the mere fact of having or operating such a cumbersome, comparatively immobile piece of heavy equipment on a well traveled highway after dark without taking any kind of special precautions to protect the traveling public against injury from it might well have been found to constitute negligence when considered in connection with all the other circumstances.
In passing upon the asserted error in directing the verdict for the defendant, the evidence must be viewed in the light most favorable to the party against whom the verdict was directed. Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Kuper v. Betzer, 8 Cir., 115 F. 2d 842; and also the holding of the trial court upon the status of the law of the state within which it acts must be accorded great weight by the appellate court and must not be overturned unless the appellate court is convinced that the view taken by the trial court was erroneous. Northern Liquid Gas Co. v. Hildreth, 8 Cir., 180 F. 2d 330; Mast v. Illinois Central R. Co., 8 Cir., 176 F.2d 157.
South Dakota has its Comparative Negligence Law, Chap. 160 of the South Dakota...
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