Burrington v. Heine

• Decision Date: 22 February 1974
• Docket Number: 11095,Nos. 11094,s. 11094
• Citation: 88 S.D. 65,215 N.W.2d 119
• Parties: Richard BURRINGTON, Plaintiff and Respondent, v. Kenneth W. HEINE, Defendant, Third-Party Plaintiff and Appellant, v. Phillip FURZE, Third-Party Defendant and Respondent. Russell LIEN and Adelia Lien, Special Co-Administrator and Administratrix of the Estate of Sandra D. Lien, Deceased, Plaintiffs and Respondents, v. Kenneth W. HEINE, Defendant and Appellant, and Phillip Furze and Richard Burrington, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 119

215 N.W.2d 119

88 S.D. 65

Richard BURRINGTON, Plaintiff and Respondent, v. Kenneth W. HEINE, Defendant, Third-Party Plaintiff and Appellant, v. Phillip FURZE, Third-Party Defendant and Respondent.

Russell LIEN and Adelia Lien, Special Co-Administrator and Administratrix of the Estate of Sandra D. Lien, Deceased, Plaintiffs and Respondents, v. Kenneth W. HEINE, Defendant and Appellant, and Phillip Furze and Richard Burrington, Defendants and Respondents.

Nos. 11094, 11095.

Supreme Court of South Dakota.

Feb. 22, 1974.

Franklin J. Wallahan, Hanley, Wallahan, Murray & Zastrow, Rapid City, Ralph Hoggatt, Lead, for appellant Heine.

William G. Porter, Costello, Porter, Hill, Banks & Nelson, Rapid City, Morman & Smit, Sturgis, for respondent Burrington.

Donald R. Shultz, Whiting, Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, for respondent Furze.

Joseph M. Butler, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, Walter Mueller, Overpeck, Mueller & Bennett, Belle Fourche, for respondent Lien.

WOLLMAN, Justice.

This is a consolidated appeal from judgments entered in the wrongful death and survival actions brought by the personal representatives of the estate of Sandra D. Lien, deceased (the Lien case, #11094), against Kenneth W. Heine (Heine), and in the personal injury action brought by Richard Burrington (Burrington) against Heine (the Burrington case, #11095). Jury verdicts were returned against Heine in both cases and he appeals from the judgments entered thereon.

The lawsuits arose out of a collision that occurred at approximately 10 p.m. on July 18, 1969, on Highway 14A between Deadwood and Lead in Lawrence County, South Dakota, between an automobile operated by Burrington in which Sandra D. Lien was riding as a passenger, and an automobile owned and operated by Heine.

One of defendant Heine's witnesses, Orin Craig (who had served as town marshal of Central City, South Dakota, from 1954 until 1960), testified that at approximately 10 p.m., July 18, 1969, he was at the upper highway entrance to Central City near the Alpine Drive-In looking for a lost hub cap when he heard the noise of the acceleration of what he described as a powerful motor. He observed three cars coming up the highway from the direction of Deadwood. At the time, Mr. Craig was five or six feet from the shoulder of the highway at a spot one and one-tenth miles from where the accident ultimately occurred. Mr. Craig recognized one of the three cars, a white Pontiac, later identified as the car being operated by Burrington, from the fact that it had been owned by someone he knew in the community. He observed that one of the other two cars was a red Mustang, later identified as the automobile being operated by Furze. Mr. Craig testified that as the three cars came up past the Alpine Drive-In the red Mustang pulled out and passed the older car, which was in the lead and which was only traveling some 35 to 40 miles per hour, and then pulled back into the right lane of traffic, whereupon the white Pontiac turned out, passed the older car, pulled over into the right lane of traffic and then immediately turned out into the left lane and proceeded to drive abreast of the red Mustang. Mr. Craig kept the red Mustang and white Pontiac in his view for a distance of a little over a quarter of a mile, during which time he observed both cars traveling in a southerly direction towards Lead on Highway 14A side by side at an increasing rate of speed. He testified that when these two cars reached what is known as the Terraville turnoff, which was at a point approximately one quarter of a mile from where Mr. Craig was standing, they had attained a speed of 75 to 80 miles an hour. At the point where the two cars drove up the road towards Lead, Highway 14A has two southbound lanes and one northbound lane.

Shortly after observing the Burrington and Furze cars drive past him and proceed out of view, Mr. Craig returned to his home to retire for the evening. Shortly thereafter he received a call notifying him of the accident in question. He proceeded immediately to the scene to assit and observed a red Mustang automobile, which looked to him like the same one that he had seen drive past the Alpine Drive-In a few minutes earlier, parked on the right-hand side of the highway a short distance beyond the point where the collision had occurred. He testified that he did not observe any other red Mustang automobiles in the immediate area.

There was testimony by Miss Sue Campbell, an employee of the Alpine Drive-In, that at approximately 10 p.m., July 18, 1969, she was out in the parking lot of the Alpine Drive-In cleaning up the area in preparation for closing when some noise drew her attention to two approaching automobiles, one red and one white in color. She recognized the white automobile as that belonging to Burrington. Miss Campbell recalled that shortly after the two automobiles drove past the Drive-In a jeep drove into the parking lot of the Drive-In. The driver of the jeep asked her whether the Drive-In was still open and was told that it had closed for the evening.

Defendant Heine testified that on the night of the accident he completed his work shift at the Homestake Mine at 9:40 p.m., and that he left the Mine in his automobile at approximately 9:55 p.m. and drove through the city of Lead and down Highway 14A to return to his lodgings at the Calamity Jane Motel. As he drove down Highway 14A to Dunmire's turnoff, the side road that leads to the motel where he lived, Heine noticed a car following him. Traffic bound from Lead to Deadwood on Highway 14A must come around a right-hand turn in the road before passing Dunmire's turnoff. Heine testified that as he came around this corner, which he estimated to be some 100 feet up the hill from Dunmire's turnoff, all he could see were some lights flashing on the hill below him. He testified that, 'and I proceeded on down and I knew I had plenty of time to make any turn when I turned my left turn signals on.' (Heine had driven back and forth over this particular stretch of highway twice a day usually six days a week for more than five years.) He then looked in the rearview mirror to see where the following car was and then made a left turn into the middle lane to let the following car go by him on the right. In the area where the collision occurred Highway 14A has two lanes of travel for automobiles traveling from Deadwood to Lead and one lane of traffic for automobiles traveling from the direction of Lead to Deadwood. After turning into the middle lane, Heine looked to his left towards Dunmire's road to see whether the road was clear for him to make his left-hand turn and then looked down Highway 14A, where he saw the lights of two cars, one in each of the two oncoming lanes of traffic, coming towards him at a speed which he estimated to be 'better than 80 miles an hour' some 200 feet away from him. Heine testified that the only thing that he could do under the circumstances was to try to make his left-hand turn as fast as he could to try to get out of the way of the oncoming cars. The Heine automobile and Burrington's automobile collided in the Lead-bound right-hand lane of travel. There was no physical contact between the Furze automobile and the Heine automobile.

Testifying on behalf of plaintiffs in the Lien case and plaintiff Burrington in the Burrington case, Steven James Litz, the driver of the automobile following defendant Heine, testified that he followed Heine's automobile all the way down the hill from Lead. As he approached Dunmire's turnoff he noticed that Heine's car had changed into the middle lane and reduced its speed. He testified that he saw no turn signal on the Heine car. He also observed two cars coming up the road towards the direction of the turnoff, both of which he testified were traveling in the far outside (right-hand) lane of travel. Mr. Litz slowed his car to remain behind the Heine vehicle, which had slowed down to about five miles per hour. He swerved onto the gravel on the far right-hand side of the road after the Burrington and Heine vehicles collided because the Heine car had spun around towards him. Mr. Litz drove a short distance down the road, made a U turn and came back to the scene of the accident where he observed the Furze car parked on the right-hand side of the road at a point below the accident scene.

On cross-examination, Mr. Litz admitted that he had given a signed statement prior to trial stating that the Furze car had come towards him causing him to veer to the right to avoid a collision. He also testified on cross-examination that he had earlier estimated the speed of the Burrington and Furze cars at approximately 60 to 65 miles per hour. The speed limit in the vicinity of the accident was 50 miles per hour.

Burrington testified that as he and Miss Lien drove past the Alpine Drive-In they observed that the lights were being shut off for the evening. He testified that he observed no other traffic traveling in the same direction as his vehicle until he reached a point a tenth of a mile from what he and other witnesses described as the Calamity Jane curve or turnoff. At this point he came up behind a red Ford Mustang being driven by defendant Furze. He turned out and passed the Furze vehicle and then pulled back into the right-hand lane and proceeded on towards Lead. He testified that as he looked back in his rearview mirror he noticed that Furze was still traveling behind him in the right-hand lane. As he approached the Dunmire turnoff Burrington noticed some lights coming around the top corner of the hill coming down the highway. He testified that he saw no turn signal on the on-coming car and that all of a sudden the car came across in front of him.

Burrington was driving a 1964 modified Pontiac automobile powered by a 421 cubic inch, 330 horsepower engine. The automobile was equipped with a four-speed manually shifted...