Frager v. Tomlinson
| Decision Date | 16 March 1953 |
| Docket Number | No. 9325-,9325- |
| Citation | 57 N.W.2d 618,74 S.D. 607 |
| Court | South Dakota Supreme Court |
| Parties | FRAGER v. TOMLINSON. a. |
Hitchcock, Nichol & Lassegard, Mitchell, for appellant.
Morgan & Fuller, Mitchell, for respondent.
Plaintiff brought this action to recover damages to his automobile which were sustained when a car owned by the defendant and driven by defendant's brother ran into plaintiff's car. Defendant counterclaimed for damages to his car. The jury returned a verdict which allowed neither plaintiff nor defendant to recover damages. Defendant has appealed.
The facts are as follows: Plaintiff together with his wife and baby were travelling east on Highway 18. It was snowing and blowing and the highway was extremely heavy. Plaintiff was following another car which was breaking a track through the snow. When plaintiff reached a point about 6 miles east of Tripp his car stalled and he was able to summon the man in the lead car to come to his assistance. However, the motor of plaintiff's car would not start with the result that it was necessary to push the car north on the highway as far as possible in the deep snow. To aid in the movement of the car it was kept in gear and propelled to some extent by means of the starter. When the car was moved as far as it was possible under the circumstances the plaintiff and his wife and baby got into the lead car and went into Tripp. The car stalled about 8 o'clock at night but it was 11 o'clock when plaintiff arrived in Tripp. Immediately upon his arrival plaintiff attempted to get a wrecker to go out and bring his car into town but was unable to do so because of the lateness of the hour. In the morning he obtained a wrecker and arrived at the place where his car was stalled about 7 o'clock. During the night defendant and his brother were driving east on Highway 18 and arrived at the point where plaintiff's car was stalled about 4:20 o'clock in the morning. Defendant described weather and road conditions as 'drifting quite bad and gusts, we could not see too far and it would be drifting pretty bad.' Defendant's brother was driving defendant's car following a snow plow and ran into the rear of plaintiff's car at the point where plaintiff had left it on the highway.
At the close of the testimony defendant moved for a directed verdict on the grounds that plaintiff was negligent as a matter of law in leaving his car on the highway as he did and that there was no evidence from which the jury could find defendant negligent. After the jury's verdict was returned the defendant moved for judgment notwithstanding the verdict which motion was denied. The defendant has now appealed and his assignments of error questioned the rulings of the court in denying his motion for a directed verdict and the motion for judgment notwithstanding the verdict.
The alleged error relating only to the denial of the motions for a directed verdict and judgment notwithstanding the verdict, correct rules of law must necessarily be applied, and not the law as established by the trial court's instructions to the jury. Schmidt v. Carpenter, 27 S.D. 412, 131 N.W. 723; Federal Land Bank v. Houck, 68 S.D. 449, 4 N.W.2d 213; Peterson v. Great American Ins. Co., S.D., 52 N.W.2d 479.
Essential to appellant's contention that the trial court should have directed a verdict is a holding that the facts establish as a matter of law that plaintiff was negligent in leaving his automobile on the highway.
SDC 44.0324 provides:
'No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway; provided in no event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway unless a clear and unobstructed width of not less than fifteen feet upon the main traveled portion of such highway opposite such standing vehicle shall be left for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of two hundred feet in each direction upon such highway. * * *
'The provisions of this section shall...
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