Flanagan v. Slattery

• Decision Date: 21 August 1951
• Docket Number: No. 9178,9178
• Citation: 74 S.D. 92,49 N.W.2d 27
• Parties: FLANAGAN v. SLATTERY.
• Court: South Dakota Supreme Court

Page 27

49 N.W.2d 27

74 S.D. 92

FLANAGAN v. SLATTERY.

No. 9178.

Supreme Court of South Dakota.

Aug. 21, 1951.

Bailey, Voorhees, Woods & Fuller and J. B. Shultz, all of Sioux Falls, for defendant and appellant.

Danforth, Bleeker & Carlson, Mitchell, for plaintiff and respondent.

ROBERTS, Judge.

Plaintiff brought this action to recover for damages to his tractor as the result of a collision between the tractor and an automobile owned and driven by defendant Thomas Slattery. Defendant counter-claimed for personal injury and property damage. On trial to a jury, plaintiff had a verdict of $875 upon which judgment was entered. Defendant appeals claiming that the evidence established that the operator of the tractor was guilty of contributory negligence as a matter of law and that such negligence was imputable to plaintiff.

It appears from the record that U. S. Highway No. 16, extending north and south, intersects at right angles a township highway at the northwest corner of the city of Alexandria, South Dakota. A driveway leading from plaintiff's premises enters highway 16 about 108 feet north of the center line of the intersection. There is also a driveway west of the intersection which connects plaintiff's premises with the township highway. The arterial highway runs south along the city limits approximately 1500 feet and then turns to the southeast through the city. There is a complete and unobstructed view between the scene of the accident and the turn. The accident involved herein happened December 14, 1949, at about 12 o'clock noon, when it was clear and the visibility good. Defendant was driving his automobile in a northerly direction on the arterial highway and the tractor driven by plaintiff's wife was proceeding in the same direction. When defendant turned out to pass, Mrs. Flanagan turned left to enter the driveway and a collision took place. The front wheels of the tractor at the time of the impact were on the west edge of the concrete.

Plaintiff alleged that the accident was caused by the negligence of the defendant in (1) that he was driving his automobile at an excessive rate of speed, (2) that he failed to sound any signal or warning of his approach, and (3) that he failed to have his automobile under proper control.

Defendant by answer declared that the accident was caused by the negligence of the operator of the tractor in (1) that she failed to keep a proper lookout for the safety of other users of the highway, (2) that she failed to have the tractor under proper control, (3) that she failed to stay on the right or east side of the highway and (4) that she failed to signal an intention to turn to the left with the result that her carelessness and negligence was the proximate cause of the accident.

In determining whether or not the evidence on behalf of the plaintiff was sufficient to warrant submission to the jury, plaintiff is entitled to have every controverted fact resolved in his favor and to have the benefit of all reasonable inferences that can be deducted from the facts in evidence. The test is whether there is any substantial credible evidence viewed in the light most favorable to plaintiff which tends to sustain the verdict. Hansen v. Isaak, 70 S.D. 529, 19 N.W.2d 521; Will v. Marquette, S.D., 40 N.W.2d 396.

Under the comparative negligence statute, Chapter 160, Laws 1941, where an action is brought to recover damages for injuries to a person or to his property caused by the negligence of another plaintiff may, if he was guilty of negligence, recover if his negligence was slight and the negligence of the defendant was gross in comparison. Where the evidence in relation to negligence and contributory negligence is such that reasonable minds might differ as to the existence of slight negligence on the one hand and gross negligence on the other, the question of comparison is for the jury. If, however, the facts are not in dispute or of such a nature that reasonable men could not differ, the standards of conduct are for the court to determine, and not for the jury. Kundert v. B. F. Goodrich Co., 70 S.D. 464, 18 N.W.2d 786. This court has often pointed out that if the evidence is such that it may be said as a matter of law that plaintiff was guilty of contributory negligence more than slight and such negligence is the proximate cause of the accident then the trial court should direct a verdict for the defendant. Friese v. Gulbrandson, 69 S.D. 179, 8 N.W.2d 438; Roberts v. Brown, 72 S.D. 479, 36 N.W.2d 665; Will v. Marquette, S.D., 40 N.W.2d 396.

According to defendant's version, when he was about three blocks away he saw the tractor proceeding ahead of him on the right or east side of the highway. He testified that at the intersection Mrs. Flanagan turned the tractor two or three feet across the center line of the highway apparently intending to drive west on the township highway; that when the tractor was driven back to the right or east side of the arterial highway defendant turned out to pass; that Mrs. Flanagan then turned abruptly to the left to enter the driveway without giving any signal of her intention to do so; that he had no opportunity to sound his horn; and that he was unable to avoid a collision.

Mrs. Flanagan denied that she drove the tractor across the center line of the highway at the intersection or intended to turn westward on the township highway and to enter the driveway west of the intersection, and, when asked concerning the movements of the tractor north of the intersection testified: 'Yes. I got halfway between this intersection and my driveway and released or pulled back on the gas lever and slowed down and crept along the black line for about thirty feet. At this time I turned around, looked over my shoulder and there was no traffic in the west lane and as far back as I knew I had clearance to make it in my driveway. I crept along this black line on the east side about halfway to about 30 feet before my driveway, where I turned into the west lane and gradually made my turn into my driveway.' She also testified that when she was about 30 feet south of the driveway she angled westward across the center line of the highway and that when she was about to cross the line she looked to the rear, but did not see defendant's car approaching.

The sheriff of Hanson county testified that he arrived at the scene of the accident shortly after the collision. He observed from tracks on the highway that defendant's automobile started across the center line of the highway about 100 feet south of the point of impact and there were skid marks 30 feet from such point. He testified that defendant admitted that he was driving 50 to 55 miles per hour. The testimony of this witness shows that defendant's automobile after the collision was in the west ditch north of the driveway and that the tractor was about 90 feet north of the point of impact. The left wheel of the tractor and parts of the drive gear and axle housing were strewn on the pavement.

The appurtenant portions of SDC 44.0317, as amended by Ch. 166, Laws 1949, and SDC 44.0312 read:

'44.0317 Signals on starting, stopping, or turning. The driver of any vehicle upon a highway before starting, stopping, or turning from a direct line shall first see that such movement can be made in safety * * * and whenever the operation of any other vehicle may be affected by such movement shall give a signal as required in this section plainly visible to the driver of such other vehicle of the intention to make such movement.

'The signal herein required shall be given either by means of the hand and arm in the manner herein specified, or by an approved mechanical or electrical signal device * * *.'

'44.0312 Overtaking a vehicle. The driver of any vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof * * *.

'The driver of an overtaking motor vehicle not within a business or residence district shall give audible warning with his horn or other warning device before passing or attempting to pass a vehicle proceeding in the same direction.'

Applying these statutory requirements, the court instructed the jury that the evidence revealed that Mrs. Flanagan was negligent in that she failed to keep a proper lookout for her own safety and that of others using the highway and in failing to signal an intention on her part to turn to the left and that defendant was negligent in that he failed to sound his horn as a warning...