Descombaz v. Klock, 6726

• Decision Date: 16 March 1931
• Docket Number: 6726
• Citation: 58 S.D. 173,235 N.W. 502
• Parties: G. P. DESCOMBAZ, Respondent, v. GEORGE KLOCK, Appellant.
• Court: South Dakota Supreme Court

58 S.D. 173

235 N.W. 502

G. P. DESCOMBAZ, Respondent,

v.

GEORGE KLOCK, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Hanson County, SD Hon. RC Bakewell, Judge #6726—Reversed E. E. Wagner, Florence M. Ryan, both of Mitchell, SD Attorneys for Appellant. E. E. Sullivan, Sioux Falls, SD Attorney for Respondent. Opinion filed Mar 16, 1931

BURCH, J.

This is an action to recover damages for personal injury received in an automobile accident. Plaintiff was driving south on Highway No. 16 when one of his tires became flat and he stopped upon the road to repair the tire. He stopped on the right side where the road was straight for a half mile or more to the north and equally straight and clear for a considerable distance to the south. The time was about 10 o’clock at night on the 5th of July, so late in the evening that lights were required. His car was a Model 1915 Ford, equipped with lights operated from the magneto so that he could have no lights unless the motor was running. He had two headlights and one spot light, the spot light being upon the left and so adjusted as to throw light upon the fender. He had no rear light. The engine was running at the time of the accident and the lights above referred to were shining. Plaintiff was immediately in front of the car while making the repair and while so located he noticed a car coming from the north and two cars coming from the south, all with headlights. The car coming from the north belonged to defendant, and as defendant approached plaintiff’s car, the cars from the south had advanced so that the passing of the last car from the south and defendant’s car occurred near where plaintiff’s car was standing. Defendant says as he advanced he was blinded by the approaching car from the south and did not notice plaintiff’s car in time to avoid a collision. He struck the left rear wheel of plaintiff’s car in such a manner as to shove plaintiff’s car forward and against plaintiff. Plaintiff’s leg was broken and he was bruised and injured and for these injuries he brought this suit. The action was tried to a jury, the jury returned a verdict of $1,500 for plaintiff, and upon this verdict judgment was rendered. Defendant appeals from the judgment and an order denying a new trial.

The assignments cover certain instructions given which we have examined in connection with the entire charge and have reached the conclusion that there was no prejudicial error in the instructions.

The principal question is presented on motion for a directed verdict, the contention being that upon the facts as they appear, plaintiff was conclusively guilty of contributory negligence barring his right to recover.

The verdict of the jury has determined the negligence of defendant, and what is further said must be understood in the light of defendant’s proven negligence. Except in cases where defendant has been guilty of willful, wanton, and reckless conduct, as in Carlson v. Johnke, where he may be liable for such conduct irrespective of plaintiff’s negligence, it may be conceded that notwithstanding defendant’s negligence, if plaintiff’s negligence caused his injury, or materially contributed thereto, he cannot recover. No question of willful, wanton, and reckless conduct of defendant is here involved. Whether or not plaintiff was guilty of contributory negligence causing the injury or materially contributing thereto was submitted to the jury and determined in his favor. This determination is final, unless, as contended by appellant, respondent was guilty of contributory negligence as a matter of law. Appellant contends that inasmuch as the law requires a red rear or tail light to be displayed on all automobiles while on the road after...