Friese v. Gulbrandson

Decision Date08 March 1943
Docket Number8549
Citation69 S.D. 179,8 N.W.2d 438
PartiesMARVIN E. FRIESE, Respondent, v. EMMORT GULBRANDSON, et al., Appellants
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Yankton County, SD

Hon. C. C. Puckett, Judge.

#8549—Reversed.

A. M. Lystad, Minneapolis, Minn.

Davenport, Evans, & Hurwitz, of Sioux Falls, SD

Attorneys for Appellants.

H. A. Doyle, Frank Biegelmeier, Ernest A. Crockett, Yankton, SD

Attorney for Respondent.

Opinion filed Mar 8, 1943, Rehearing Denied May 22, 1943.

SMITH, J.

This action, which arose out of a collision of two automobiles at a right angle intersection of two county highways, resulted in a verdict and judgment for plaintiff. The case was submitted to the jury under Ch. 160, Session Laws 1941, commonly spoken of as the comparative negligence statute. The question ultimately to be answered is whether plaintiff was guilty of more than slight contributory negligence. We assume the negligence of defendant Gulbrandson and state the facts in the light most favorable to plaintiff.

The collision occurred at about 9:30 A. M. on September 12, 1941. The day was bright and clear, and the gravelled surface of the highways was dry and smooth. The intersection was of an enlarged type and so engineered as to provide separate and distinct curved traffic lanes for the safety and convenience of those desiring to make right or left hand turns. Plaintiff approached from the east and defendant Gulbrandson from the south. As plaintiff drove along from the east, he was traveling at forty miles per ilour and was maintaining a general over-all lookout for traffic. However, he was prevented from observing the traffic along the course of the south road because of an intervening corn field bounded by high weeds. When at a distance estimated as about one hundred fifty to one hundred seventy-five feet from the exact center of the intersection, he focused his eyes on the south road and saw no traffic. From that position he could see past the mask of corn and weeds along the course of the south road a distance of little more than one hundred feet from the intersectional center. Thereupon he focused his attention on the north road and discovered no traffic. By this time his speed had been reduced to between thirty and thirty-five miles per hour. When sixty feet from the exact center of the intersection he discovered Gulbrandson one hundred feet to the south thereof approaching at a speed of sixty miles per hour. Thereupon- plaintiff applied the full force ot his four wheel brakes. He expressed the opinion that he had almost succeeded in bringing his car to a standstill by tne time the inside front wheels of the cars collided at the approximate center of the intersection. Defendants’ car came to rest at a point ninety-three feet directly northwest of the center of the intersection. It lay on its side facing north of east astride the line separating the field from the north highway. Plaintiff’s car came to rest within the intersection at a point halfway between the center thereof and the position of defendants’ car. It was in an upright position facing south west.

By Ch. 187, Laws of 1941, repealing SDC 44.0303, it is provided:

Section 1. (a) It shall be unlawful for any person to drive a vehicle on a highway of this State at a speed greater than is reasonable and prudent under the conditions then existing or at a speed in excess of those fixed by this statute or provided by the State Highway Commission.”

(f) Where no special hazard exists on any section of the highway outside of a municipality which section is not zoned and posted as hereinbefore provided, the following speeds shall be lawful; but any speed in excess of said limits shall be unlawful and shall be prima facie evidence that the speed is not reasonable or prudent;”

(4) Fifteen miles an hour when approaching within fifty feet and in traversing an intersection of highways when the driver’s view is obstructed. A driver’s view shall be deemed to be obstructed when at any time during the last fifty feet of his approach to such intersection, he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet from such intersection;”

“It shall be prima facie unlawful for any person to exceed any of the foregoing speed limitations, ....”

These quoted provisions must be read in connection with certain definitions contained in SDC 44.0301. That section defines “highway” as “every way or place of whatever nature open to the use of the public, as a matter of right, for purposes of vehicular travel ...” and an “intersection” as “the area embraced within the prolongation of the lateral curb lines or, if none, then of the lateral boundary lines of two or more highways which join one another at an angle, whether or not one such highway crosses the other; ....”

These provisions were submitted to the jury by the trial court’s instructions in the words of the statutes as abstract propositions of law. Through exceptions to the instruction given, by alternative requests, and by their specifications of the particulars wherein the evidence is insufficient to support the verdict made in connection with a motion for new trial, and by appropriate assignments of error predicated upon the rulings below, defendants assert that, when the evidence is viewed in the light of a proper application of these statutes to the physical facts, it becomes manifest that plaintiff was guilty of contributory negligence as a matter of law in traveling at a speed in excess of fifteen miles an hour when approaching within fifty feet and in traversing an intersection when his view of the traffic on the south road was obstructed. The solution of this problem turns upon the sound construction and proper application of these provisions. As we view the record, if a proper application of these statutes marks off an intersection sixty-six feet square, the evidence presented a jury question as to whether plaintiff’s view was obstructed as he advanced within fifty feet of the intersection. On the other hand, if the enlarged area, presently to be described, constitutes the intersection, the evidence conclusively establishes that plaintlff’s view was obstructed as he entered the statutory fifty-foot zone.

A more detailed picture of the scene of the collision is essential to an understanding of our problem. The two highways were of a normal width of sixty-six feet. A1though their entire width was “open to the use of the public, as a matter of right,” a graded gravelled roadway approximately twenty-four feet wide was provided for the convenience of traffic. To improve the safety factor at the intersection additional right-of-way has been acquired and curved roadways along which traffic may turn to the right or left have been provided. Thus as a vehicle approaching the intersection from any one of the four directions reaches a point about one hundred twenty feet from the exact center of this intersectional space, three roadways become available—one straight through and the other two along gradual eures to the right and left respectively. The entire area is graded to the same approximate level, but the described roadways are defined and separated by four small triangular grass or weed plots. The plots are not curbed and are bounded on the insides by the roads extending straight through and on their outward sides by the curved roadways. These triangular spaces are not closed to traffic and from photographs in the record it is apparent that some vehicles actually drive through or over them. As heretofore indicated, a field of high corn bounded by high weeds was located southeast of the intersectional space which prevented a traveler on the east road from observing traffic on the south road until close upon the intersection.

After mature reflection, we are not left in doubt as to either the proper construction, or sound application of these provisions of statute to the physical situation described. It is elementary that, as between two permissible constructions of statutes, the one should be adopted that will advance the legislative purpose. The object of the legislature is apparent. It did not intend to arbitrarily mark off a space or area and call it an intersection. Rather it sought to describe an area which was open to a particular character of use by traffic. Obviously it intended to describe by definition the area that is open to the common use of traffic flowing from highways which join at an angle. lt concluded that an extension of the boundary lines of the intersecting highways would embrace the whole of such a common area. With such an area in mind, and with the object of promoting safety, it sought to regulate and adjust the speed of a driver to his opportunities for uninterrupted observation. To assure such control as would permit almost instantaneous stops, it required a driver with an obstructed view to reduce his speed to fifteen miles per hour at a distance of fifty feet from the cross-traffic danger zone. With this background we turn to the physical situation. We cannot fail to see that by the addition of right-of-way the boundaries of these two highways were expanded through this area. This was pursuant to plans which evidently contemplated such an enlargement of the common area as would improve observation and permit some separation of traffic streams and thus reduce points of concentration. In anticipation of such engineering the legislature has provided that “when an intersection is so constructed and laid out that different and clearly...

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    ...applicable when constitutional issues are involved. State v. Devericks, 77 S.D. 509, 94 N.W.2d 348 (1959) (citing Friese v. Gulbrandson, 69 S.D. 179, 8 N.W.2d 438 (1943)). Therefore, we decline to reach the constitutional questions by issues II and The summary judgment in favor of the state......
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    ...version of the comparative negligence statute, but the Court's interpretation of that statute was in accord with Friese v. Gulbrandson, 69 S.D. 179, 8 N.W.2d 438, 442 (1943): "[T]he legislature made use of the words `slight negligence' to describe a quantum of want of such ordinary care as ......
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