Descombaz v. Klock
| Decision Date | 05 February 1932 |
| Docket Number | No. 6726.,6726. |
| Citation | 59 S.D. 461,240 N.W. 495 |
| Parties | DESCOMBAZ v. KLOCK. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hanson County; R. C. Bakewell, Judge.
On rehearing.
Former opinion affirmed, and judgment below reversed, with directions.
For former opinion, see 235 N. W. 502.E. E. Wagner and Florence M. Ryan, both of Mitchell, for appellant.
E. E. Sullivan, of Sioux Falls, for respondent.
This is an action for damages for personal injuries sustained by plaintiff and caused by the alleged negligence of the defendant in the operation of an automobile upon the public highway, and is before us on rehearing. The former opinion is reported in 235 N. W. 502, where an extended statement of the facts may be found. Respondent contends that the defendant cannot avail himself of the defense of contributory negligence, other than the specific defense of negligence on the part of the plaintiff pleaded in his answer. A rehearing was granted that we might give further consideration to this question.
The complaint in substance alleges that on the 5th day of July, 1927, defendant while approaching plaintiff's automobile from the rear at a speed in excess of 25 miles per hour, drove his automobile into and against the automobile of the plaintiff; that all of such acts were done in a reckless and negligent manner; that at the time of the accident the automobile of plaintiff was in plain sight and to the extreme right of the highway and in such a position that, had the defendant been driving his own automobile in a careful and prudent manner, he would have seen the car of the plaintiff and had ample opportunity to avoid the collision; and that, as a result of the collision, plaintiff was injured and for which he claims damages.
Defendant in his answer denied generally the allegations of the complaint. He affirmatively alleges that plaintiff's injury, if any, was caused by his own negligence in then and there being upon the public highway and in a place of danger with his automobile when same was not equipped with a red light displayed on the rear. We held in the former opinion that the question whether absence of a rear light on plaintiff's standing automobile was the contributing cause of the collision was a question for the jury, but that respondent was conclusively guilty of contributory negligence, from a consideration of all the facts and circumstances of the case, in failing to step out of the way of the automobile before he was struck. Plaintiff contends that no such issue of contributory negligence appears from the pleadings; that the defendant was confined to his allegation of contributory negligence in not displaying a red light on the rear of his automobile. We are of the view that plaintiff is correct in his contention that no such issue is presented by the pleadings.
[1] As a general rule the contributory negligence of the plaintiff must be affirmatively...
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