Culhane v. Waterhouse
| Decision Date | 14 November 1927 |
| Docket Number | No. 6305.,6305. |
| Citation | 215 N.W. 885,51 S.D. 584 |
| Parties | CULHANE v. WATERHOUSE. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Brookings County; W. W. Knight, Judge.
Action by Wilhelmina Culhane against J. T. Waterhouse. From a judgment for plaintiff, defendant appeals. Reversed.B. P. Harding, of Elkton, for appellant.
E. A. Berke and Cheever, Collins & Cheever, all of Brookings, for respondent.
This action was brought for the recovery of damages claimed to have been caused by the negligent driving of an automobile by the defendant. Verdict and judgment for plaintiff, and defendant appeals.
The case was tried to a jury. When the plaintiff rested, defendant moved for a directed verdict on the grounds, first, that the evidence failed to show any negligence on the part of the defendant, but affirmatively shows that defendant was acting with reasonable care and prudence at the time of the injury; and, second, upon the ground that the evidence on behalf of plaintiff affirmatively shows that the plaintiff was guilty of contributory negligence. This motion should have been granted.
At the time of the injury plaintiff was living on a farm 5 1/2 miles west of Elkton. The house in which she lived is on the south side of the Black and Yellow trail, and at that point the trail runs east and west. The roadway is graveled for a width of 24 feet. On the south side of the roadway is a ditch which from the shoulder of the road is 16 feet wide, and the bottom of the ditch is 18 to 22 inches lower than the top of the road. Near the road in front of the house is a gate designated by plaintiff as the “small gate.” About 100 feet west of the small gate was another gate designated as the “barn gate.” On the night of October 15, 1924, John Culhane, a brother of plaintiff's husband, drove along the trail from the east in an automobile and stopped on the south side of the road in front of the small gate. His car was facing the west, and he left his lights burning. He said that the north side of his car was about 1 1/2 feet on the gravel and the south side on the slope of the road. When he stopped he honked his horn, and the plaintiff with her husband, Dan Culhane, and their two sons, Edward and Robert, 12 and 14 years old, respectively, came out to his car.
They had been there a few minutes when they noticed the lights of defendant's automobile, approaching them from the west. It was 50 to 60 rods from them when it came into view, and John Culhane testified that in his opinion it was coming at the rate of 20 to 25 miles per hour. He testified also that it did not come straight along the road, but that it was swaying back and forth from one side of the road to the other; that it continued to come in that way until it was within about 100 feet of his car, when it swung over to the right and came straight along the south side of the road until it was within 6 feet of his car when it turned to the right and ran down off the grade into the ditch, then east along the ditch until it passed the Culhane car, then turned up onto the grade again and continued along the road to the east. As defendant's car went into the ditch, it scraped along the side of the Culhane car, but no material damage was done to either car. As defendant's car went into the ditch, he slowed his speed down to 15 miles an hour.
Dan Culhane, plaintiff's husband, testified that he saw the lights on de...
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