Carlson v. Johnke
| Decision Date | 03 January 1931 |
| Docket Number | 6966. |
| Parties | CARLSON v. JOHNKE et al. [a1] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lincoln County; L. L. Fleeger, Judge.
Action by George W. Carlson against Harry Johnke and another. From judgment for plaintiff and order denying new trial defendants appeal.
Affirmed.
Theodore R. Johnson, of Sioux Falls, for appellants.
Alan Bogue, of Parker, for respondent.
Plaintiff was driving his automobile south from Lennox on the graveled highway on the evening of September 11, 1928, between 8:30 and 9 o'clock. He collided with defendants' threshing outfit, which they were moving north. For his damages, he recovered verdict and defendants appeal.
The refusal of the trial court to give two instructions requested by defendant, based on the testimony of plaintiff, that his vision was temporarily impaired by the glare of the headlights of an approaching car just prior to the accident is assigned as error. The requested instructions were as follows:
The language of these instructions was taken verbatim from the opinion of the Supreme Court in Ruth v. Vroom, 245 Mich. 88, 222 N.W. 155, 62 A. L. R. 1528. The rule there stated is supported by many decisions. Other courts have refused to adopt that rule and hold that the question of the driver's negligence is one of fact to be determined by the jury. Berry, Auto. (6th Ed.)§ 186, p. 155; Huddy, Auto. (8th Ed.) p. 412; Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L. R. A. 1917F, 253; Murphy v. Hawthorne, 117 Or. 319, 244 P. 79, 44 A. L. R. 1397, 1403-1407; Powell v. Schofield (Mo. App.) 15 S.W.2d 876.
In Grosz v. Bone, 48 S.D. 65, 201 N.W. 871, this court held that the driver of an automobile who, knowing that the highway on which he was driving was being resurfaced, ran into a pile of gravel after being blinded by the glaring of lights of an approaching car, was guilty of contributory negligence as a matter of law. That opinion quotes from and follows Budnick v. Peterson, 215 Mich. 678, 184 N.W. 493, which was followed by the Michigan court in Ruth v. Vroom, supra. Therefore the instructions requested by appellant stated the law of this jurisdiction, although their language might well be changed to make them more readily understandable. It is doubtful what some of the language therein, particularly "on peril of legal negligence," would mean to a jury of laymen.
But admitting the negligence of plaintiff, were defendants, appellants herein, entitled to prevail? Plaintiff was within a few miles of his home, traveling on the right-hand, or west, side of the road going south at a speed of over thirty miles an hour. It was a dark night. His lights lit up the highway twenty rods ahead of his car. Defendants, appellants herein, saw plaintiff's car coming for several miles before the collision. They were hauling a separator north along the highway with a fifteen-ton steam engine, moving about three miles an hour. There were no lights on engine or separator. From the outside of one large drive wheel to the outside of the opposite drive wheel was ten feet six inches. The graveled highway was twenty-three or twenty-five feet wide. After the collision, traffic had ample room to pass on the gravel on the east side of the threshing outfit. According to defendants, it was eighteen feet from the east side of the road to the outside of the west wheel of the engine. This would place the engine in the center of the highway. An employee of defendants testified that a car could pass on the west side of the engine and separator but would have to go slowly. Plaintiff testified that he could not have driven west of the engine without getting off the gravel. Another witness testified that the engine was entirely on the west side of the highway. Still another, that the west wheel of the engine was only a few feet from the west side of the gravel. There was evidence that the engine was largely on the wrong side of the road to be traveling north. Ahead of the engine, and lighting the way for it, was an automobile driven by one Jepp. Different witnesses give the distance of the Jepp car ahead of the engine as a little over a car length, thirty-five feet, at least two rods, between three and four rods, between twelve and fifteen rods, and about nine or ten rods. Jepp says his car was on the east side of the road when he saw plaintiff's car coming several miles away. That he was three or four rods ahead of the engine and defendant Johnke called to him to "drive ahead a little faster; that there was a car coming," and that he speeded up a little then. Plaintiff testified that the Jepp car was not on the east side of the road but was in the center of the road ahead of the engine and, just before meeting him, moved over to the east so slightly that plaintiff had to run into the loose gravel at the side of the road in passing the Jepp car.
The lights of the Jepp car blinded plaintiff temporarily. He says he was going less than twenty-five miles an hour while passing the Jepp car. Defendants' witnesses say he was going much faster. After he was fifteen feet past the Jepp car, he saw the engine about fifteen feet in front of him. There was no room to pass to the west of it nor to stop in front of it; so he tried to pass to the east of it. The engine was moving forward with the front wheels tilted somewhat to the right. The right front wheel of plaintiff's car struck the right front wheel of defendant's engine, knocking the engine wheel off the axle, dropping the front end of the boiler, wrecking plaintiff's car, and seriously injuring plaintiff.
It seems to be conceded by many authors on the law of negligence that where defendant's conduct that occasioned the injury was wanton or where it indicates that degree of indifference to the rights of others which may be justly characterized as recklessness, the doctrine of contributory negligence as a defense has no application. Shearman and Redfield, Negligence (6th Ed.) § 114a; Cooley, Torts (3d Ed.) vol. 2, p. 1442; 8 Minn. Law Rev., note p. 329, at p. 333; 20 R. C. L. 144, Negligence, § 118; 45 C. J. 981, 982; Huddy Auto (8th Ed.) § 480; Thompson Negligence (2d Ed.) vol. 1, p. 247, § 266. In Cieplinski v. Severn (Mass.) 168 N.E. 722, 723, decided in 1929, the Massachusetts court says:
"The current of decisions is that when the defendant's wrong is something more than mere negligence, that is, when it has the element of wilful, reckless and wanton misconduct, contributory negligence is not a defense."
The Massachusetts court, in a case frequently cited in support of the foregoing rule, says:
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