Bothern v. Peterson

• Decision Date: 27 December 1967
• Docket Number: No. 10388,10388
• Citation: 155 N.W.2d 308,83 S.D. 84
• Parties: Dolly B. BOTHERN, Administratrix of the Estate of William H. Bothern, deceased, Plaintiff and Appellant, v. Darrell PETERSON and Western Dairy Company of Clarkfield, Minnesota, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 308

155 N.W.2d 308

83 S.D. 84

Dolly B. BOTHERN, Administratrix of the Estate of William H.

Bothern, deceased, Plaintiff and Appellant, v. Darrell PETERSON and Western Dairy Company of Clarkfield, Minnesota, Defendants and Respondents.

No. 10388.

Supreme Court of South Dakota.

Dec. 27, 1967.

Willy, Pruitt & Matthews, Gene E. Pruitt, Sioux Falls, McCann & Martin, W. R. McCann, Brookings, for plaintiff and appellant.

Davenport, Evans, Hurwitz & Smith, Lyle J. Wirt, Sioux Falls, Alvin F. Schulz, Brookings, for defendants and respondents.

HANSON, Judge.

This action for the wrongful death of William H. Bothern resulted in a verdict for defendants, Western Dairy and its truck driver, Darrell Peterson. A motion for judgment notwithstanding the verdict or in the alternative for a new trial was denied. On appeal plaintiff primarily contends defendants were guilty or negligence as a matter of law which was the proximate cause, or a concurring cause, of the collision between the automobile in which decedent was riding and defendant's milk truck.

In reviewing such issues this court is obligated to view the evidence in the light most favorable to the verdict. Hanisch v. Body, 77 S.D. 265, 90 N.W.2d 924. Accordingly, it appears that decedent, William H. Bothern, was 45 years old and resided on a farm eleven miles south of Brookings. Shortly after noon on September 28, 1965 he left his farm to attend a sale riding in a Buick automobile owned and operated by Clarence A. Davis. While Davis was driving and at a point about four miles north of White, South Dakota, at the intersection of Highways 25 and 44, the Buick collided with a Western Dairy milk truck owned and operated by defendant, Darrell Peterson. The accident resulted in the immediate death of Davis and the subsequent death of Bothern.

Highway 25 is a north/south asphalt surfaced road 22 feet wide protected by stop signs on the east and west. Highway 44 is a narrower graveled road running east and west. The intersection corners are rounded rather than right angled. The speed limit on Highway 25 is 60 m.p.h.

Western Dairy is a farmers' cooperative located at Clarkfield, Minnesota, having several truck drivers including defendant, Darrell Peterson, who daily collect milk from dairy farms in its area. Peterson's milk route extended into South Dakota. He drove a 1964 GMC truck with a 3,200 gallon milk cooler bulk tank. It was 26 feet long with double sets of rear dual wheels and weighed, with its load at the time of the accident, 35,000 lbs. It was equipped with two headights, four lower taillights three upper taillights, two side lights on each side, and five marker lights on top of the cab.

Shortly before the accident Peterson was driving his truck south on Highway 25. It was a foggy, wet day. Visibility veried from 150 feet to 300 feet. All the truck lights were on and the windshield wiper was working. Peterson was driving between 20 and 25 miles per hour. As he approached the Highway 44 intersection he turned on his signal light indicating a left turn. He looked south and saw no approaching cars. There was, however, a pickup truck driven by David Hicks stopped at the stop sign on the east side of the untersection. When Peterson was from 125 to 300 feet north of the intersection the pickup started out and headed south on Highway 25. Before beginning his left turn Peterson slowed down to 5 miles per hour and again looked to the south and saw no approaching vehicles. He was driving in his right-hand lane and did not start turning left until he reached a point where he oculd proceed onto Highway 44.

Just as Peterson started his left turn he saw the Davis Buick about 150 feet south of the intersection. It was coming north in the east lane of Highway 25. The Buick was traveling 70 to 75 miles per hour and had no lights on. When he saw the Buick Peterson stepped on his brakes. The truck stopped north of the intersection headed into the curve of Highway 44. It was facing southeasterly with the front end of the truck in the east lane and the rear end in the west lane of Highway 25. The Buick hit the front of the truck with such force it was a total loss. It left skid marks extending across the intersection and for a distance of 129 feet south of the intersection. After the accident Bothern asked two different witnesses to get rid of whiskey bottles in the Buick. They refused and bottles of whiskey were afterwards of found in the Buick by the investigating officers. There was no evidence, however, that either Bothern or Davis had been drinking.

The trial court correctly instructed the jury the presumption of due care applied to decedent in the absence of any evidence of negligent conduct on his part. Also, as a guest in the Buick, the negigence of the driver Davis, was not imputable to him. The issue of contributory negligence is therefore not presented.

Plaintiff contends defendant was negligent as a matter of law in the operation of his milk truck as follows: (1) Driving on the wrong side of the highway, (2) failing to maintain a proper lookout, (3) failing to yield the right-of-way, and (4) making an improper left turn. Ordinarily, questions of negligence and proximate cause are factual issues for jury determination. Only where the facts are not in dispute or are of such nature reasonable men could not differ do they become questions of law for the court. Dwyer v. Christensen, 76 S.D. 201, 75 N.W.2d 650, 56 A.L.R.2d 734; Bogh v. Beadles, 79 S.D. 23, 107 N.W.2d 342.

There is substantial credible evidence that Peterson was driving his truck in the proper lane of traffic. The jury could properly find he did not commence turning left until he was at the intersection curve of Highway 44. The pictures in evidence show the turning position of the truck after the collision. The rear wheels were still in the right half of the highway. If Peterson had been traveling in the wrong lane of traffic at least the left rear wheels of the truck would have had to be in the east side of the highway center line.

There is further substantial evidence that Peterson was keeping a proper lookout for other users of the highway. He observed the pickup at the stop sign and waited for it to enter and proceed south on Highway 25. He looked to the south as he approached the intersection and again as he commenced turning left. Because of the fog, speed, and lack of lights the Buick could not be seen. Peterson was entitled to turn left at the intersection. In doing so he proceeded slowly and looked for other users of the highway. All of the truck lights were on including the directional signal indicating a left turn. He was under no obligation to yield the right-of-way to a vehicle which could not be seen and was approaching the intersection in fog at an unlawful speed without lights. Under such circumstances the right-of-way is forfeited. Bogh v. Beadles, 79 S.D. 23, 107 N.W.2d 342.

Peterson concedes he did not make a left turn in strict compliance with SDC 44.0316 which provides that the driver of a vehicle 'intending to turn to the left shall approach such intersection in the lane for traffic to the right of and nearest to the center line of the highway and in turning shall pass beyond the center of the intersection, passing as closely as practicable to the right thereof before turning such vehicle to the left.' Instead, he apparently made a 'short-cut' turn left of the intersection center.

A violation, without legal excuse or justification, of a statute enacted for reasons of safety constitutes negligence per Zakrzewski v. Hyronimus, 81 S.D. 428, 136 N.W.2d 572; Albers v. Ottenbacher, 79 S.D. 637, 116 N.W.2d 529; Roth v. Jelden, 80 S.D. 40, 118 N.W.2d 20; Grob v. Hahn, 80 S.D. 271, 122 N.W.2d 460; and McCleod v. Tri-State Milling Co., 71 S.D. 362, 24 N.W.2d 485. In Albers v. Ottenbacher the following excusable...