Bruening v. Miller

• Decision Date: 10 May 1930
• Docket Number: 6870.
• Citation: 230 N.W. 754,57 S.D. 58
• Parties: BRUENING v. MILLER et al.
• Court: South Dakota Supreme Court

230 N.W. 754

57 S.D. 58

BRUENING v. MILLER et al.

No. 6870.

Supreme Court of South Dakota

May 10, 1930

Appeal from Circuit Court, Aurora County; Frank B. Smith, Judge.

Action by Carl L. Bruening against Herman Miller, Sr., and Carl Ganshaw, copartners, transacting business as Miller & Ganshaw, and others. On motion, the court dismissed the action against certain defendants, and from a judgment in favor of the remaining defendants and an order denying a motion for a new trial, plaintiff appeals.

Affirmed.

H. G Giddings, of Mitchell, for appellant.

M. Q Sharpe and A. C. Miller, both of Kennebec, for respondents.

SHERWOOD J.

This action is based on negligence. At the close of plaintiff's case the court, on motion, dismissed the action against the defendants Frank Miller, Fritz Miller, and Richard W. Clark; also the counterclaim of said defendants against plaintiff. From these orders no appeal was taken and they are not involved in this appeal.

Thereafter the court on motion of the other three defendants, directed a verdict in their favor upon all the issues. From a judgment entered on this verdict, and from an order denying a new trial, plaintiff has appealed. The only question presented is the correctness of this ruling.

In directing the verdict the trial judge said, in substance Plaintiff's evidence shows he knew this threshing outfit was on the road in time to have stopped his car with the appliances at his command. In place of that, he chose to go around it. It is like a man passing a car ahead of him on the road knowing it is there. It could not be said that the car passed was guilty of any negligence in being there. The better rule is that unless the negligence of defendants is the proximate cause of the injury, such negligence is not actionable.

Based on this statement, appellant argues: The trial court conceded defendants' negligence; and based its order solely on the proposition that such negligence was not the proximate cause of the injury. And further argues: If defendants were negligent, such negligence might have been the proximate cause of the injury and the case should have been submitted to the jury.

The motion for directed verdict was based on three grounds:

1. Failure to prove defendants' negligence.

2. Plaintiff's contributory negligence.

3. That such contributory negligence was the proximate cause of the accident.

The remarks of the trial judge indicate he was considering the entire record, and what, if anything, it showed as to negligence, contributory negligence, and proximate cause of injury. They do not state the grounds nor furnish data sufficient to determine on what ground the motion was granted. Appellant is not justified in assuming that the trial court conceded defendants' negligence or that his ruling was based entirely on the proposition that defendants' negligence was not the proximate cause of the injury.

Appellant does not question the right, or duty, of the court to direct a verdict in a negligence case, where plaintiff has failed to prove defendants were negligent and that such negligence was the proximate cause of the injury. He does, however, claim that the question of contributory negligence was not raised by respondents' motion to direct the verdict. In this we think he is mistaken. Respondents' motion particularly called the trial court's attention to the testimony of the drivers of both automobiles, that each saw the threshing rig in time to stop his car before reaching it, and that "the whole proof shows that the only proximate cause of the injuries complained of is the actions of the two approaching automobiles themselves."

This clearly raised the question of contributory negligence, and it was proper to consider such negligence in the direction of the verdict. Hendrickson v. Swenson, 28 S.D. 323, 133 N.W. 250.

Appellant's complaint makes three separate charges of negligence, as follows:

(a) In parking the traction engine and separator upon the traveled portion of the highway and obstructing the highway thereby.

(b) In failing to guard the same or give notice of the presence thereof upon the highway by any lights or otherwise, or leaving a person in charge thereof.

(c) In failing to warn plaintiff, as he approached the obstruction upon the highway, of its presence upon the highway, having knowledge of plaintiff's danger and opportunity so to do.

He contends there is sufficient evidence in this record supporting these charges of negligence to take the case to the jury. This requires a brief review of the evidence, which is in substance as follows:

Herman Miller, Sr., and Carl Ganshaw, were copartners in a threshing business. Herman Miller, Jr., was employed by them in the business. About the middle of the afternoon of November 6, 1927, at the direction of Ganshaw, Herman, Jr., attached the tractor to the separator and started for the next threshing job, 7 miles distant. The route they had to travel took them south 5 miles on state trunk highway No. 41; thence west 2 miles on a section line road to their destination. When he had reached a point about 30 to 50 rods north of the corner where he was to turn off the trunk highway onto the section line road, the chain slipped off the drive wheel of the tractor and he was obliged to stop in the highway and fix it. As soon as this was fixed, he started the threshing rig and drove a short distance further, when his tractor stopped. An examination showed the float of the carburetor had stuck and let all the gasoline out. Miller fixed the float, and immediately and in company with one Frank Miller (who was not related to him and who was merely riding with him on the tractor) went to the Furchner house to get gasoline. The Furchner house was situated about 15 rods back from the north and south road on which they were traveling and about 30 rods north of the place where the tractor stood. It was the nearest farm house and was reached through a gate, hereinafter called the Furchner gate. Furchner had no gasoline but offered them his car to go to Baer's, the next nearest place. They took the car and drove about 50 rods further to the Baer place, where they obtained the gasoline. They drove directly back to the tractor, put the gasoline in its tank, then drove the car back to the Furchner house. After leaving the car they started at once to walk back to the tractor. When they reached the highway they turned south in the direction of the tractor and walked a short distance on the gravel and then turned into the ditch on the west side of the road and proceeded on toward the tractor. While walking in the ditch and when about 10 rods from the tractor, plaintiff's car, coming from the north and traveling on the side of the road nearest to them, passed by them. Both testified this car was traveling 40 to 45 miles per hour when it passed them and that it began to turn to the east about the time it passed them, and continued on and passed around the east side of the separator. When plaintiff's car had nearly reached the front end of the tractor to which the separator was attached, it came into collision with a car coming from the south. At the time of this collision plaintiff was driving a Dodge sedan. He testified that when he passed the boys, he was driving at the rate of about 25 miles per hour. Both plaintiff and Clarence Holly, who was riding with him, testified they saw the separator at about the same time; that Holly called plaintiff's attention to the rig then in the road ahead of them. Holly testified he saw the lights of their car glisten on the separator and spoke to plaintiff about the rig being in the highway when they were about 10 rods from the threshing outfit, and that plaintiff immediately swung his car out to the left. Plaintiff testified he and Holly saw the separator at the same time and that he saw it when he was quite a ways from it; that he was south of the Furchner gate when he saw it. He further testified as follows:

"The first I saw I couldn't tell what it was. I imagine I could have applied my brakes and stopped immediately when I saw it. I made no effort to stop my car when I saw the machine. I took my foot off the accelerator when I first saw it, but did not put on the brakes nor sound my horn as I went around the machine. When I turned to go around I found there was a threshing rig in the road. I was hugging quite close to the rig. I swung out real close. I don't believe I was over a foot and a half when I swung out around it and I swung back as close as I could get.

"I first saw the car approaching from the south just as we were about to hit it. I saw its lights. They were straight ahead of me. When I saw the lights I did not have time to stop after I saw the lights. My foot was reaching for the brakes when we hit. I hugged the machine as close as I possibly could hug it. The cars came into collision opposite the tractor. When I saw the lights of the approaching car, I swung a little closer to the threshing outfit. I could not see what part of the rig I hit. It appeared to me to be the front wheel although my condition and going so fast I could not see.

"Q. You say you were going so fast you could not see what you hit? A. I mean the accident took place so fast."

Richard W. Clark, who drove the Ford car coming from the south which collided with plaintiff's car, testified: He saw the threshing rig when he was 20 rods away and it looked like a dark object. That he was driving about 25 miles an hour. That he slowed up a little bit when he saw the rig, then put his foot on the gas right when he went around the tractor, and at that time he was going 10 to 15 miles an hour. That he first saw plaintiff's lights when his (plaintiff's car) swung around the rear end of the separator.

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