Burmeister v. Youngstrom

• Decision Date: 28 December 1965
• Docket Number: No. 10182,10182
• Citation: 139 N.W.2d 226,81 S.D. 578
• Parties: Ewald BURMEISTER, Administrator of the Estate of Irene Burmeister, Deceased, Plaintiff and Respondent, v. Glen YOUNGSTROM and James Sharp, Defendants and Third-Party Plaintiffs and Appellants, v. Ewald BURMEISTER, Third-Party Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 226

139 N.W.2d 226

81 S.D. 578

Ewald BURMEISTER, Administrator of the Estate of Irene

Burmeister, Deceased, Plaintiff and Respondent, v. Glen YOUNGSTROM and James Sharp, Defendants and Third-Party Plaintiffs and Appellants, v. Ewald BURMEISTER, Third-Party Defendant and Respondent.

No. 10182.

Supreme Court of South Dakota.

Dec. 28, 1965.

Rehearing Denied Jan. 31, 1966.

Morgan & Fuller, Mitchell, for defendants and third-party plaintiffs and appellants.

Shandorf & Bleeker, Mitchell, for plaintiff and third-party defendant and respondent.

HOMEYER, Judge.

This is an action for damages for an alleged wrongful death resulting from a collision between an automobile driven by Ewald Burmeister and a farm truck owned by the defendant, James Sharp, and driven by the defendant, Glen Younstrom. The plaintiff, Ewald Burmeister, brings the action as administrator of the estate of his wife, Irene, who was killed in the accident, for the benefit of himself and their five minor children. The jury by its verdict fixed damages at $18,988.22. Defendants appeal from the judgment entered on the verdict.

The accident occurred at approximately 6:10 p. m. on Sunday, July 28, 1963, at a right angle intersection of two graveled county roads about two miles east and six miles south of Mount Vernon, South Dakota. Burmeister with his wife as a passenger in the front seat was traveling south and the defendants' truck was proceeding west. James Sharp was seated next to the driver and his wife was to his right. At this intersection a shelter belt with heavy dense undergrowth is located along the north side of the east-west road and extends eastward from a fence line on the east side of the north-south road for approximately one-half mile. There is a single stop sign located at the northeast corner of the intersection which controls traffic moving westward on the east-west road. The Burmeisters lived about three and one-half miles southwest of the intersection and the Sharps about one-half mile east of it. All parties involved were familiar with the intersection and had traveled these roads many times and had knowledge of the location of the described stop sign. From between the stop sign and the east edge of the north-south road, which measured 25 feet, a driver proceeding west can see north for about one-quarter mile. The traveled portion of each roadway was about 23 feet in width.

The evidence viewed in a light most favorable to the plaintiff establishes that Burmeister was driving at his normal speed of about 50 to 60 miles per hour and saw the truck when he was about 175 feet north of the center of the intersection; that he let up on the gas. When the truck failed to stop at the stop sign he slammed on his brakes. The front end of his automobile struck the right door of the cab of the truck; the point of impact was slightly west of the center line of the north-south road and slightly north of the center line of the east-west road. Skid marks caused by the Burmeister vehicle measured 59 feet straight north of the point of impact and the automobile came to rest on the roadway in the south-west quadrant of the intersection 13.6 feet from the place of collision. There were no skid marks caused by the truck and it traveled about 47 feet after the collision, sheered off a braced corner fense post and ended up in a field off the roadway faced south-westerly.

A deputy sheriff called as a witness by the defendants testified that a few days after the accident he made measurements to determine the range of vision to the east of a driver who approached the intersection from the north. His testimony was that from a point 50 feet north of the north edge of a prolongation of the east-west road, he could see traffic approach the intersection from the east for a distance of 169 feet. At 45 feet, he could see it for 180 feet and at 40 feet, he could see it for 200 feet. He also testified that the north-south road was not posted for any speed limit.

Defendants' principal assignment of error is based on the trial court's refusal to give the following requested instruction:

'A statute of this state provides that it shall be unlawful for any person to drive a motor vehicle on a highway located in this state at a speed greater than is reasonable and prudent under the conditions then existing; and it shall be unlawful for any person to drive a motor vehicle on a highway at a speed in excess of 15 miles per hour when approaching within 50 feet and in traversing an intersection of highways when the driver's view is obstructed. A driver's view shall be deemed to be obstructed when at any time during the last 50 feet of his approach to such intersection, he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of 200 feet from such intersection.

'This statute sets the standard of care of the ordinarily careful and prudent person. * * *'

The instruction is predicated on SDC 1960 Supp. 44.0303, subsection (6)(d), which imposes speed restrictions and defines what is commonly termed a 'blind intersection'.

We believe the trial court did not err in refusing to give the requested instruction.

SDC 1960 Supp. 44.0321, as amended by Ch. 225, Laws of 1961, provides:

'The State Highway Commission with reference to State highways and local highways with reference to highways under their jurisdiction are hereby authorized to designate main traveled or through highways by erecting at the entrances thereto from intersecting highways, signs notifying drivers of vehicles to come to a full stop or to yield and before entering or crossing such designated highways shall be certain that such main traveled or designated highway shall be free from oncoming traffic which may affect safe passage. It shall be unlawful for the driver of any vehicle to fail to comply with the provisions of this section. * * *'

The substance of this statute along with other rules of the road imposing the proper standard of care to be exercised by the parties under the circumstances was included in the court's instructions. In our opinion the blind intersection statute is subordinate to the quoted statute and renders inapplicable the speed restriction of 15 miles per hour under the facts in this case. Any other construction would render practically meaningless the erection of stop signs at intersections where visibility was impaired or obstructed within the prescribed distances. We do not believe it was so intended by the legislature.

Of course, the presence of a stop sign does not relieve a motorist of the duty to use the favored highway with reasonable care and with due regard to the safety of others, Robertson v. Hennrich, 72 S.D. 37, 29 N.W.2d 329, but where the driver upon a road knows it is protected by a stop sign at an intersection with another road he can reasonably assume until the contrary is observed that a motorist approaching the intersection on an intersection road will stop, look, and yield the right-of-way to the driver on the favored road. Vlach v. Wyman, 78 S.D. 504, 104 N.W.2d 817; Roth v. Jelden, 80 S.D. 40, 118 N.W.2d 20. A traverler has a right to assume that a stop sign at an intersection with an appearance of regularity has been placed there under proper authority, King v. Gold, 224 Iowa 890, 276 N.W. 774, Bell v. Crook, 168 Neb. 685, 97 N.W.2d 352, 74 A.L.R.2d 223, and for its obvious purpose.

We have considered the case of Friese v. Gulbrandson, 69 S.D. 179, 8 N.W.2d 438, cited by defendants, which involved a collision at an intersection where the driver's view was obstructed within the statutory definition. In that case there was no stop sign and we view it as no authority for the requested instruction or other questions raised by appellants. Neither do we feel what was said in Anderson v. Lanning, 74 S.D. 161, 50 N.W.2d 57, necessitates such instruction unless the highway so favored is zoned and posted with signs disclosing maximum permissible speeds.

The trial court under proper instructions submitted the issues of negligence of the defendants, the contributory negligence of Ewald Burmeister and of his deceased wife, and the comparative extent thereof, and proximate cause to the jury. The evidence pertaining to these issues and the permissible inferences therefrom was conflicting. Such matters were all resolved by the jury and the verdict is amply supported by credible evidence.

Defendant Youngstrom is a stepson of the defendant Sharp. Youngstrom lived four miles west and one-half mile south of Mount Vernon. Earlier in the day he, his wife, and family had driven their car to the Sharp home. The Sharps were invited to the Youngstrom home for supper that evening and Mrs. Youngstrom and family had departed earlier in their car and Mr. Youngstrom had stayed on. At the time of the accident he was driving the truck to transport the Sharps to the Youngstrom home in response to the supper invitation. It was his custom to drive when accompanied by the Sharps because he had a severe arthritic condition in his spine and the steering wheel served as a brace. Because of this condition, his peripheral vision was limited and to see to the right or left to any great degree he had to turn his whole body.

The complaint alleges that at the time and place of the accident the truck had been entrusted to Youngstrom and was being driven with Sharp's knowledge, consent and permission. Specific acts of negligence are...