Corey v. Kocer, 10870

• Decision Date: 21 January 1972
• Docket Number: No. 10870,10870
• Citation: 86 S.D. 221,193 N.W.2d 589
• Parties: James COREY, Plaintiff and Appellant, v. Romaine KOCER and Merle Weerheim, d/b/a Kocer Implement Company, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 589

193 N.W.2d 589

86 S.D. 221

James COREY, Plaintiff and Appellant, v. Romaine KOCER and Merle Weerheim, d/b/a Kocer Implement

Company, Defendants and Respondents.

No. 10870.

Supreme Court of South Dakota.

Argued Sept. 21, 1971.

Decided Jan. 21, 1972.

L. E. Schreyer, and M. E. Miller, Lake Andes, for plaintiff and appellant.

L. L. Piersol, Sioux Falls, for defendants and respondents.

BIEGELMEIER, Judge.

Plaintiff, driver of an auto on a two-lane 25-foot road, collided with a self-propelled combine driven by defendant Weerheim and owned by defendant Kocer. Both vehicles were proceeding in the same direction.

To plaintiff's action for damages defendants asserted a counterclaim which the jury denied and returned a verdict for plaintiff on his claim. Defendants' motion for judgment n.o.v. was granted so far as plaintiff's judgment was concerned and this appeal followed.

The sole question is whether plaintiff was negligent and whether that negligence was the proximate cause of the accident so as to bar his claim for damages as a matter of law. The jury's finding of defendants' negligence is not, and cannot be, controverted under the evidence upon which the jury could and did base its verdict.

SDCL 32--22--2 makes it unlawful for any person to operate or move a combine on a public highway more than the 96-inch in width limit provided for in SDCL 32--22--3 between one-half hour after sunset and the following one-half hour before sunrise, which time period may be described herein as 'dark time'. It is undisputed the combine exceeded this limit, the evidence of defendants being it was from 122 1/2 to 127 1/2 inches wide or from two to two and one-half feet over the limit.

While there was some evidence on behalf of defendants that the accident occurred around dusk of November 8, 1967, plaintiff's evidence showed it was at least a half hour after sunset when specified 'lighted front and rear lamps' were required by SDCL 32--17--4. ¹ This and other evidence hereafter adverted to supports the jury's finding of defendants' negligence and its verdict on that issue.

Some mention of the proceedings in the trial court that led to the ruling complained of may be informative and show how it resulted. Defendants' motions for directed verdicts and for the judgment n.o.v. were based on their claim and argument that plaintiff was negligent as a matter of law which barred him from any recovery. At the hearing on the motion for judgment n.o.v. defendants urged, and in the briefs and argument on appeal repeat here, that as neither party requested and the court did not give an instruction based on our comparative negligence statute, SDCL 20--9--2, its principles were and are not applicable and any negligence of plaintiff bars his action. This is an erroneous view for on such motions in the trial court and here on appeal correct rules of law must be applied rather than the law as established by the trial court's instructions to the jury. Frager v. Tomlinson, 74 S.D. 607, 57 N.W.2d 618. Federal Land Bank v. Houck, 68 S.D. 449, 4 N.W.2d 213. Therefore, the trial court at that time and this court on appeal must apply the principles of our comparative negligence law to the motion and decision.

Defendants reiterate this contention on another point. SDCL 32--17--8, which plaintiff cited, requires every 'motor vehicle * * * shall be equipped with at least one lighted rear lamp on the left thereof, not over fifty-two inches above the roadway'. Defendants state this statute is not properly before the court for the reason the trial court by Instruction 10 advised the jury a combine must display a White light visible for 500 feet to the Rear of the combine to which neither side objected and to instruction requiring a red light not over 52 inches above the roadway was requested or given so this became the 'law of the case'. Under the 'correct rule' doctrine cited it did not. Defendants' Instruction 10 requiring a white light shining to the rear was based on SDCL 32--17--26, hereafter quoted, and their own evidence (similar to plaintiff's) showed the combine had such a rear white light.

In addition to not being the law of the case (on the motions involved), in our opinion Instruction 10 did not correctly interpret the lighting requirements of this combine during the 'dark hours'. SDCL 32--17--8 provides:

'Every motor vehicle * * * shall be equipped with at least one lighted rear lamp on the left thereof, not over fifty-two inches above the roadway on which it stands, exhibiting a red light plainly visible from a distance of five hundred feet to the rear, except farm vehicles which are being drawn at the end of a train of vehicles shall be equipped with two four-inch reflectors so as to exhibit a red light plainly visible from a distance of five hundred feet to the rear.'

This section excepts only farm vehicles being drawn at the end of a train of vehicles, which was not defendants' situation. SDCL 32--17--26 then provides:

'All vehicles Not required in §§ 32--17--1 to 32--17--25, inclusive, to be equipped with Specified lighted lamps shall carry one or more lighted lamps or lanterns displaying a white light visible under normal atmospheric conditions from a distance of at least five hundred feet to the front and to the rear of such vehicle.' (Emphasis supplied)

This last statute does not affect or modify SDCL 32--17--8 so far as this combine is concerned as the quoted SDCL 32--17--8 requires it to be 'equipped with specified lighted lamps'.

Another example of nonconformity to the correct rule of law is defendants' answer to plaintiff's contention that defendants were negligent for violating SDCL 32--22--2 by the operation in dark time of a combine exceeding the 96-inch width limit in SDCL 32--22--3. They assert aside from the exemption specifically granted (them) by SDCL 32--22--1, SDCL 32--22--3 also is not properly before the court because no instruction embodying SDCL 32--22--3 was either required or given. This claim fails for the same correct rule yardstick noted above.

Another safety statute, not mentioned in the briefs, that must be considered is SDCL 32--17--14 which requires every vehicle over 83 inches in width to be equipped with

'two lamps located at the extreme right and left sides of the rear of the vehicle and displaying red lights visible from a distance of five hundred feet to the rear * * * which * * * shall be in addition to the red lamp required in § 32--17--8.'

While the foregoing indicates that defendants were violating several sections of our statutes from which the jury could find negligence, we now consider how they affected defendants' claim of plaintiff's contributory negligence as a matter of law.

In reviewing a ruling on a motion for a directed verdict and its complementary motion for judgment n.o.v. an appellate court views the evidence in a light most favorable to the party against whom the motions were directed; then without weighing the evidence it must decide if there is evidence which would have supported or did support a verdict in his favor. Stated another way, this court must accept that version of the testimony and indulge in those legitimate inferences which support the verdict. ²

Before measuring the facts upon which the jury could return a verdict for plaintiff under the comparative negligence standard, a review of the history of that act and some of our cases is appropriate. Our opinions show the difficulty the court has had in this field of negligence and the attempts to declare standards against which conduct should be measured to determine actionable negligence or its counterpart, contributory negligence. ³ They have been defined as a violation of the duty to use care which in general if the proximate cause of injury may result in legal liability for ensuing damages, or if contributory may defeat in whole or in part the damage claim. ⁴ Despite the difficulty mentioned by Judge Leedom, ⁵ the court in many opinions determined contributory negligence as a matter of law was present that barred recovery. ⁶

This trend may have reached its apogee in 1927 when Culhane v. Waterhouse ⁷ was written, though Descombaz v. Klock ⁸ in 1931 was in a similar vein. In Culhane plaintiff's brother-in-law stopped his car facing west in front of a gate on the south side of the road to talk to his brother and plaintiff. The latter were off the traveled portion of the road at the crest of the ditch. When visiting there they observed the lights of defendant's car swaying back and forth approaching from the west. When the car was 100 feet away plaintiff said "That car is going to hit us" and ran down into the ditch while her husband jumped to safety across the ditch. To avoid the standing car, defendant, who was so drunk he could not control his car, turned it to the right and into the ditch where it hit plaintiff. The jury verdict was for plaintiff. On appeal the court (three judges) held plaintiff was chargeable with negligence as a matter of law and directed the action be dismissed, saying she could have crossed the ditch and 'gotten out of harm's way' inside the gate as did her husband and her spry 12 and 14-year-old sons.

Descombaz v. Klock, likewise, overturned a verdict for plaintiff who stopped his car at night to repair a flat tire. The rear light was not lighted but the headlights and a spotlight which lighted a fender were. The court accepted the jury verdict of defendant's negligence and though plaintiff was making an emergency tire repair held as a matter of law he was negligent for remaining in front of his car when as a prudent person he should have stepped to the edge of or in the ditch of the highway. Citing Culhane v. Waterhouse, the trial court was directed to dismiss the action.

Not all opinions, however, came to that end. ⁹ Carlson v. Johnke, 1931, 57 S.D. 544, 234 N.W. 25, affirmed a plaintiff's jury verdict in an opinion which included statements that a plaintiff's...