Davis v. Knippling

Decision Date01 April 1998
Docket NumberNo. 19875,19875
Citation576 N.W.2d 525,1998 SD 31
PartiesJeffrey A. DAVIS and Susan K. Davis, Plaintiffs and Appellants, v. Susan Rae KNIPPLING, Defendant and Appellee.
CourtSouth Dakota Supreme Court

Patrick T. Dougherty of Johnson, Eklund, Nicholson & Dougherty, and Rita Allen of Hagen, Wilka & Archer, Sioux Falls, for plaintiffs and appellants.

Michael J. Schaffer and Melissa C. Hinton of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellee.


¶1 Drivers must slow to fifteen miles-per-hour when approaching an intersection if they have an obstructed view of other vehicles entering the intersection. Was the trial court correct in applying this rule to an intersection on a through highway? Because such highways are designed to allow traffic to maintain constant speed, we conclude the obstructed view rule was inapplicable. The court also erred in instructing the jury that failure to use a seatbelt can be considered a failure to mitigate damages. We find no abuse of discretion, however, in admitting evidence of plaintiff's purported investment income. We affirm in part, reverse in part, and remand for a new trial.


¶2 On August 26, 1993, Jeffrey Davis was driving north on Russell Street in Sioux Falls. Russell is a four-lane thoroughfare running north and south, with a grassy median. As he approached the Louise Avenue intersection, Susan Knippling was turning left onto Russell from Louise. Neither one could see the other because their view was obstructed by a gravel truck stopped in the left turn lane on Russell. Knippling drove directly in front of Davis and he broadsided her vehicle. Davis was not wearing a seatbelt. He hit his head on the windshield, was rendered momentarily unconscious, and suffered multiple injuries.

· Davis brought suit against Knippling alleging negligence in failing to yield to oncoming traffic. In her answer, Knippling denied any negligence, and asserted Davis was contributorily negligent and failed to mitigate his damages. The court denied Davis's motions in limine to prohibit mention of his failure to use a seatbelt and evidence of his business profits. The jury was instructed Davis may be considered contributorily negligent if he violated the statute which prohibits traveling more than fifteen miles per hour while crossing an intersection with an obstructed view. After a four-day trial, the jury returned a verdict for Davis, awarding him $6,824 in damages. On appeal, Davis contends the court erred by (1) instructing the jury that it may consider failure to use a seatbelt as evidence of failure to avoid or minimize injuries; (2) instructing that failure to slow to fifteen miles-per-hour at the intersection could be contributory negligence; and (3) admitting evidence of Davis's investment income in determining loss of earning capacity.

Standard of Review

¶4 Under our standard of review, we construe jury instructions as a whole to learn if they provided a full and correct statement of the law. Sommervold v. Grevlos, 518 N.W.2d 733, 739 (S.D.1994); Frazier v. Norton, 334 N.W.2d 865, 870 (S.D.1983); Mueller v. Mueller, 88 S.D. 446, 450, 221 N.W.2d 39, 42 (1974). Misleading, conflicting, or confusing instructions create reversible error. Schaffer v. Edward D. Jones &amp Co., 1996 SD 94, p 19, 552 N.W.2d 801, 808; Wallahan v. Black Hills Elec. Co-op., Inc., 523 N.W.2d 417, 423 (S.D.1994). Nonetheless, an appellant must show not only that a particular instruction was erroneous, but also that it was prejudicial, meaning the jury probably would have returned a different verdict if the faulty instruction had not been given. LDL Cattle Co., Inc. v. Guetter, 1996 SD 22, p 32, 544 N.W.2d 523, 530; Sybesma v. Sybesma, 534 N.W.2d 355, 359 (S.D.1995)(quoting Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 64 (S.D.1992)).

Analysis and Decision
1. Failure to Slow at Obstructed View Intersection

¶5 Citing our holding Robbins v. Buntrock, 1996 SD 84, 550 N.W.2d 422, the trial court instructed the jury that Davis could be found contributorily negligent if he violated SDCL 32-25-15:

When approaching within fifty feet of and when traversing an intersection of highways when the driver's view is obstructed the maximum lawful speed shall be fifteen miles per hour. A driver's view is obstructed if at any time during the last fifty feet of his approach to such intersection, he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet from such intersection. A violation of this section is a Class 2 misdemeanor.

(emphasis added). Although Davis may have had an obstructed view of traffic approaching the intersection, giving an instruction based upon this statute was error. The facts in Robbins were quite dissimilar: the intersection was not one governed by a yield sign controlling cross traffic on a through highway as we see here.

¶6 Knippling was stopped at a yield sign on Louise Avenue just before turning left onto Russell Street and into Davis's path. Her view of oncoming traffic was obstructed by a gravel truck which had pulled into the left-hand turn lane on Russell. Davis's view of traffic on Louise Avenue was probably also obstructed--he did not recall a truck in the turn lane--but he was entitled to rely upon the yield sign controlling traffic turning onto Russell.

» In South Dakota, state and local authorities designate through highways "by erecting at the entrances thereto from intersecting highways stop or yield signs." Musilek v. Stober, 434 N.W.2d 765, 767 (S.D.1989); SDCL 32-29-2. 1 Russell Street is clearly a "through highway." Drivers on such highways have the right-of-way, and may assume cross-traffic will stop before entering. Musilek, 434 N.W.2d at 767; Roth v. Jelden, 80 S.D. 40, 46, 118 N.W.2d 20, 24 (1962); Grosz v. Groth, 78 S.D. 379, 381-82, 102 N.W.2d 834, 836 (1960). Requiring drivers on through highways to slow to fifteen miles-per-hour at every intersection with an obstructed view of traffic on intersecting streets would render meaningless not only stop or yield signs on those streets, but also the purpose for these highways, to allow traffic to maintain constant speed. Of course, even drivers with the right of way have the responsibility to keep a proper lookout for other vehicles on the road. Runge v. Prairie States Ins. of Sioux Falls, 393 N.W.2d 538, 541 (S.D.1986). The presence of a stop or yield sign will not relieve a motorist of the duty on a through highway to use reasonable care for the safety of others. Burmeister v. Youngstrom, 81 S.D. 578, 581, 139 N.W.2d 226, 229 (1965); Nelson v. McClard, 357 N.W.2d 517, 518 (S.D.1984); Shams v. Carney, 518 N.W.2d 366, 368 (Iowa 1994); Paro v. Farm & Ranch Fertilizer, Inc., 243 Neb. 390, 499 N.W.2d 535, 540-41 (1993).

¼ On the other hand, "[t]his Court has repeatedly held that the failure of a driver of a motor vehicle to see a [favored] vehicle ... at an intersection constitutes negligence...." Kallis v. Beers, 375 N.W.2d 642, 644 (S.D.1985); see also Vlach v. Wyman, 78 S.D. 504, 507, 104 N.W.2d 817, 819 (1960)(failure to come to a full stop before crossing highway); Kundert v. B.F. Goodrich Co., 70 S.D. 464, 465, 18 N.W.2d 786, 787 (1945)(duty to stop and failure to do so was negligence). When on a through road protected by a yield sign at an intersection, the driver on such road may reasonably assume until the contrary is shown that a motorist approaching the intersection will stop, if necessary, look, and yield the right-of-way as required by SDCL 32-29-3. See also Burmeister, 139 N.W.2d at 229; Kasper v. Carlson, 232 Neb. 170, 440 N.W.2d 195, 198 (1989); Muirhead v. Gunst, 204 Neb. 1, 281 N.W.2d 207, 209 (1979); Smith v. Kellerman, 4 Neb.App. 178, 541 N.W.2d 59, 63 (1995); 4 Blashfield, Cyclopedia of Automobile Law and Practice § 114.85, at 173 (3d ed. 1965). Nonfavored drivers must proceed with extraordinary caution when entering a through highway while their view is obstructed. 4 Blashfield § 114.105, at 234. Knippling does not dispute she was unable to see oncoming traffic heading north on Russell Street as she approached the yield sign. Nevertheless, she proceeded to turn onto Russell, into the path of advancing traffic. The trial court erred in instructing the jury that Davis's failure to slow pursuant to SDCL 32-25-15 may be considered contributory negligence.

¶9 We need not decide whether the court's erroneous obstructed view instruction was alone prejudicial, because the jury was also instructed it may find Davis contributorily negligent if he was exceeding the posted speed limit at the time of the accident. See SDCL 15-6-61. In a civil case, if a general verdict is handed down and the jury could have decided the case on two theories, one proper and one improper, the reviewing court will assume it was decided on the proper theory. Jack Rabbit Lines, Inc. v. Neoplan Coach Sales, Inc., 1996 SD 80, p 10, 551 N.W.2d 18, 21; Mid-America Marketing Corp. v. Dakota Indus. Inc., 289 N.W.2d 797, 799 (S.D.1980); Eberle v. Siouxland Packing Co., Inc., 266 N.W.2d 256, 258 (S.D.1978).

2. Failure to Use Seatbelt as Failure to Mitigate Damages

¶10 Drivers and other persons in the front seat of passenger vehicles must use seat belts in South Dakota. SDCL 32-38-1 (effective July 1, 1994). However, by statute, proof of failure to wear a seat belt may not be introduced as evidence in any civil litigation on the issue of mitigation of damages. SDCL 32-38-4. As the accident occurred in August 1993, these enactments are inapplicable to this case.

¶11 Relying upon dicta in Kusser v. Feller, 453 N.W.2d 619 (S.D.1990), the trial court instructed the jury that it may consider plaintiff's "failure to use a seatbelt as evidence that the plaintiff had failed to avoid or minimize" his injuries.

The jury also could have concluded that Kusser...

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