Fester v. George

• Decision Date: 19 December 1946
• Docket Number: 8865.
• Parties: FESTER v. GEORGE.
• Court: South Dakota Supreme Court

25 N.W.2d 455

71 S.D. 424

FESTER v. GEORGE.

No. 8865.

Supreme Court of South Dakota

December 19, 1946

Davenport, Evans & Hurwitz, of Sioux Falls, for appellant.

T R. Johnson, of Sioux Falls, for respondent.

RUDOLPH, Presiding Judge.

This action involves a collision at a street intersection in the city of Sioux Falls. The jury returned a verdict for the plaintiff. Defendant moved for judgment notwithstanding the verdict which was overruled by the trial court. The only question presented is whether plaintiff was guilty of contributory negligence as a matter of law. The jury having returned a verdict in favor of the plaintiff the facts must be reviewed in the light most favorable to that verdict.

The accident occurred on Saturday, November 4th, 1945 about noon at the intersection of Franklin Avenue and Eighth Street. Franklin Avenue runs north and south and is 40 feet in width. Eighth Street runs east and west and is 48 feet in width. Plaintiff was traveling south on Franklin Avenue. Defendant was traveling east on Eighth Street. The streets were dry and plaintiff's view of Eighth Street as he approached the intersection was unobstructed. Plaintiff testified that when he was from 8 to 10 feet from the intersection he observed defendant's car coming from the west on Eighth Street at a point 50 to 60 feet from the intersection; that he believed he had ample time to cross in front of defendant's car and proceeded into the intersection and did not observe defendant's car again until the collision occurred. Plaintiff estimated that he was driving at 15 to 20 miles per hour and that as he observed defendant, defendant was driving at 20 to 25 miles per hour. The collision occurred in the southwest part of the intersection. Plaintiff's wife testifed:

'Well before we crossed I looked to the left and then to the right and I seen his car approaching, but he was plenty far away that we could get through. Never gave it another thought until going to approach the middle of the intersection and I looked over and seen he had got there mightly fast and that he was driving faster than he was at the time we seen him the first time and he was looking down, * * *'

SDC 44.0318 provides:

'When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. * * *'

Construing this statute this court held in the case of Smith v. Aspaas, S.D., 21 N.W.2d 878, that in determining the right of way it is without legal significance which car actually entered the intersection first if it appears that the vehicles approached or entered the intersection at approximately the same time. It follows that the single fact that plaintiff entered the intersection first, did not give him a right of precedence over defendant. The controlling issue is whether the two cars were approaching or entering the intersection at approximately the same time; if they were, the plaintiff being on the left, should have yielded to the defendant; if they were not, no question of right of way is presented. The parties are approaching the intersection at 'approximately the same time' whenever the two vehicles are in such a relative position that upon an appraisal of all the factors in the situation it should appear to a man of ordinary prudence approaching from the left that there is danger of collision if he fails to yield the right of way. See many cases cited in Berry on Automobiles, Seventh Edition, Section 3.16. As a corollary to this general holding we held in the case of Mills et al. v Armstrong, S.D., 13 N.W.2d 726, that if a driver of a vehicle on the left comes to a crossing and finds no one approaching it on the other street within such distance as reasonably to indicate danger of interference or collision, he is under no obligation to stop or wait, but may proceed to use such crossing as a matter of right.

The question which we must determine under the rules above announced is whether it was within the province of the jury to find under all the facts that plaintiff acted as a man of ordinary prudence in concluding that he could safely proceed across the intersection, or does it appear that the danger of a collision was such that we must hold as a matter of law that an ordinarily prudent person would have yielded to the defendant.

Appellant contends that plaintiff was negligent or failed to act with ordinary prudence because he did not observe defendant's car until plaintiff was 8 or 10 feet from the intersection. Plaintiff was traveling only 15 to 20 miles per hour, and in our...