Creager v. Al's Const. Co., 9432-

• Decision Date: 02 February 1955
• Docket Number: No. 9432-,9432-
• Parties: G. G. CREAGER, Plaintiff and Respondent, v. AL'S CONSTRUCTION COMPANY, a Corporation, and Delbert Spoonemore, Defendants and Appellants. r.
• Court: South Dakota Supreme Court

Page 484

68 N.W.2d 484

75 S.D. 482

G. G. CREAGER, Plaintiff and Respondent, v. AL'S CONSTRUCTION COMPANY, a Corporation, and Delbert

Spoonemore, Defendants and Appellants.

No. 9432-r.

Supreme Court of South Dakota.

Feb. 2, 1955.

Rehearing Denied March 8, 1955.

Morrison & Skaug, Mobridge, and H. F. Fellows, Rapid City, for plaintiff and respondent.

Martens, Goldsmith & May Pierre, and Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendants and appellants.

BAKEWELL, Circuit Judge.

This action arising from a collision between plaintiff's automobile and defendant's truck resulted in a verdict and judgment for the plaintiff. The case was submitted to the jury under SDC Supp. 47.0304-1 our comparative negligence statute. The question presented by the appeal is whether the plaintiff was guilty of more than slight contributory negligence as a matter of law.

The facts in this case viewed in the light most favorable to the plaintiff disclose that in the afternoon of February 1, 1952, the defendant, Al's Construction Company, dispatched a wheeled platform drawn by a tractor, and commonly known as a 'tractor-lowboy', to the business place of Lawrence Creager in Fort Pierre. The tractor-lowboy was driven by the defendant, Delbert Spoonemore, an employee of the defendant, Al's Construction Company. The purpose of the trip was to obtain and transport a certain caterpillar type tractor belonging to Lawrence Creager to a point on U.S. Highway 14 nine miles east of Pierre known as the 'Garber Corner' where one Martell, an employee of Lawrence Creager, was to operate it in removing snow from a county highway. Spoonemore loaded the tractor on the bowboy in the Lawrence Creager yard at about 5:30 p.m. The plaintiff, who is the father of Lawrence Creager, was a part-time employee of his son. At the time of Spoonemore's arrival at the Creager establishment, the plaintiff and Tom Martell had just finished some mechanical work on the tractor and were present when it was loaded and saw it, mounted on the tractor-lowboy, leave the Creager establishment between 5:30 and 6:00 p.m.

At the time of loading, it was agreed that Spoonemore was to directly proceed to the Garber Corner and that the plaintiff was to follow behind with Martell who was to operate the tractor.

Following the loading, the defendant, Spoonemore, proceeded directly to the Garber Corner and parked the tractor-lowboy about 150 feet east of the intersection of Highway 14 with the north-south road which led north to the Garber house. There were snowbanks three or four feet high on both sides of Highway 14, but the road itself was clear of ice and snow. The tractor-lowboy was drawn up against the snowbank at the south edge of the highway leaving from 18 to 20 feet of open roadway to the north of it. There is testimony that prior to the collision there were lights showing to the rear of the truck and headlights on low beam on the front of it, but the evidence is sufficient to justify a jury finding that no lights were visible from the rear of the tractor-lowboy at the time of the collision. There were no flares placed on the highway. It was dark when the plaintiff left Pierre about twenty minutes after Spoonemore's departure with the tractor-lowboy. He was driving his pickup truck with Martell in the seat beside him. He had stopped at Martell's residence in Pierre long enough to enable the latter to obtain some warmer clothing. As the plaintiff, proceeding east on U.S. Highway 14, approached the Garber Corner, he was driving at a speed of from 30 to 35 miles per hour; the road was level; there were no physical obstructions to his view ahead; there was no car approaching from the east, no lights from cars or otherwise to interfere with or limit his vision ahead. His headlights were on high beam and he testified that he could see a distance of 200 feet ahead of his car; his windshield was clear as was the atmosphere--the plaintiff described it as a 'fine night'. The plaintiff knew the location of the Garber Corner to be approximately nine miles east of Pierre and before the collision occurred he knew, from having seen the lights in Garber's farmyard about a mile to the north of the intersection, that he was closely approaching the Garber Corner. He knew, from his previous arrangement with Spoonemore that the tractor-lowboy would be stopped in the near vicinity of that corner and that unless Spoonemore found it possible to enter the north-south intersecting highway at that corner, it would be stopped on U.S. Highway 14 at or close to the corner. Plaintiff knew from having seen that the snow which had been removed from Highway 14 was piled on the north and south shoulders of that highway to a height of from three to four feet, and that this piled snow might possibly extend across the north-south road at the intersection; he knew that the purpose of taking the caterpillar tractor to that corner was to remove snow from the north-south road; he knew the length of the tractor-lowboy to be 45 feet and he was familiar with the type, color, height and weight of the tractor-lowboy combination, and the hazard to traffic which would result from an unsuccessful attempt by Spoonemore to turn from the highway into the side road; he knew that the tractor-lowboy was dark in color and that the tractor mounted on the lowboy, although yellow or orange in color, was spotted with mud, and with 500 pounds of mud thereon. In this state of fact, plaintiff drove past the corner a distance of 150 feet without seeing the tractor-lowboy until the second he collided with it.

The negligence of the defendants in permitting the tractor-lowboy to stand on the highway without any rear lights or reflectors as required by SDC 44.0352, and without placing flares as required by SDC 44.0354, is clearly established. King v. Farmers Educational & Cooperative Oil Co., 72 S.D. 280, 33 N.W.2d 333; Winburn v. Vander Vorst, S.D., 59 N.W.2d 819. Under our comparative negligence statute, SDC Supp. 47.0304-1, it follows that if, in failing to observe the tractor-lowboy as it stood unlighted on the highway, the plaintiff was not guilty of negligence more than slight, the verdict of the jury must stand.

As construed by this Court in Friese v. Gulbrandson, 69 S.D. 179, 8 N.W.2d 438, 442, our legislature made use of the words 'slight negligence' to describe a quantum of want of such ordinary care as a reasonable man would exercise under the circumstances. In that case it was said:

'The legislative purpose is clearly revealed. It has not sought to uproot the doctrine of contributory negligence as it exists in our law. It has sought to benefit only a particular class of plaintiffs in negligence cases, and that a very limited class. Speaking in broad terms, it may be said that the object of the legislature is to render the rule of contributory negligence inapplicable if the contributory negligence of plaintiff is small in quantum, in cases in which it also appears by a process of comparison that the disparity between the quantum of defendant's negligence and that exhibited by plaintiff is extreme. * * * to bring a case within the rule of the statute, the contributory negligence of plaintiff must be no more than slight, and in addition, the negligence of defendant must be no less than gross or great in comparison with the slight or small contributory negligence of plaintff.'

The rule is laid down in Friese v. Gulbrandson was applied in Flanagan v. Slattery, 74 S.D. 92, 49 N.W.2d 27, 29; Roberts v. Brown, 72 S.D. 479, 36 N.W.2d 665; Will v. Marquette, 73 S.D. 192, 40 N.W.2d 396; Stone v. Hinsvark, 74 S.D. 625, 57 N.W.2d 669; Pleinis v. Wilson Storage & Transfer Co., S.D., 66 N.W.2d 68.

In Roberts v. Brown, supra [72 S.D. 479, 36 N.W.2d 668], the reference in our comparative negligence statute to the term 'gross negligence' was clarified by the declaration:

'The reference to gross negligence in the statute has no significance except in making the comparison between plaintiff's negligence, which the jury must find to be no more than slight, and the negligence of the defendant, which must be great or gross in comparison.'

Where reasonable minds might draw different inferences or conclusions from facts proved, the matter in issue must be submitted to the jury; but where undisputed facts are of such a nature that...