Grob v. Hahn, 10033

• Decision Date: 02 July 1963
• Docket Number: No. 10033,10033
• Parties: Leo GROB, Plaintiff and Respondent, v. Eldon HAHN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 460

122 N.W.2d 460

80 S.D. 271

Leo GROB, Plaintiff and Respondent, v. Eldon HAHN, Defendant and Appellant.

No. 10033.

Supreme Court of South Dakota.

July 2, 1963.

Davenport, Evans, Hurwitz & Smith, Carleton R. Hoy, Sioux Falls, for defendant and appellant.

James E. Doyle, Yankton, John A. Engel, Avon, for plaintiff and respondent.

RENTTO, Judge.

Plaintiff instituted this action to recover damages for injury to his person and property arising out of an accident involving the automobile which he was driving and a truck- mounted corn sheller driven by the defendant. The mishap occurred on Highway 37 about nine miles south of Tripp, South Dakota, where that highway is intersected by a graveled road running east and west, shortly before 7:55 a. m. on June 7, 1960.

The jury returned interrogatories finding that plaintiff's total damage was $19,150 and that his contributory negligence was 25% of the total combined negligence proximately causing the injury and the defendant's negligence was 75% of it. Under the mandate of our comparative negligence law the jury awarded him the reduced sum of $14,362.50 for which judgment was entered. By motions for a directed verdict, judgment notwithstanding the verdict and a new trial, defendant presented to the trial court his claim that plaintiff should be denied recovery because of his contributory negligence. This contention is the principal basis of his appeal from the judgment.

As stated by the trial judge in his memorandum 'no really substantial question exists as to what took place at and immediately preceding this accident.' For a factual background we borrow from his statement of the facts: 'both parties were proceeding South along a familiar blacktop highway, in daylight, on a clear day. The Defendant was driving his truck at about 40 miles an hour and the Plaintiff was overtaking him in his car at about 60 miles an hour. There was no other traffic to distract either driver. When about one-quarter mile behind the truck the Plaintiff turned into the left lane intending to pass the truck when it had been overtaken. The Plaintiff's car closed the gap between the two vehicles until about 200 feet remained and at this time the Defendant's truck started to veer into the left lane.' This occurred near the north edge of the intersecting graveled road.

The trial judge's recitation of the facts goes on to state: 'The Plaintiff construed the action of the Defendant to indicate an intention to turn to the left as, in fact, it was. Accordingly the Plaintiff turned back into the right-hand lane seeking to get around the truck on the right-hand side. It may reasonably be inferred that at this time the Plaintiff made a heavy application of his brakes because there was a screeching of tires which the Defendant heard and promptly pulled back into the right-hand lane directly in front of the Plaintiff. The Plaintiff, seeking to avoid a direct impact, again pulled to the left, lost control of his car and sustained severe injuries.' Plaintiff's automobile went into the ditch on the east side of the blacktop, south of the graveled road, and overturned.

These additional pertinent facts are also noted by the trial judge: 'There was no contact between the two vehicles. The Plaintiff's car actually did go past the truck during the time that both vehicles were in the intersection, at which time the car was out of control. The Defendant heard no horn sounded and the Plaintiff does not positively claim that he did blow his horn at any time. The Defendant admits that he did not ascertain that the turn could be made in safety or in any manner signal his intention to turn prior to commencing to do so. The Plaintiff claims that he did not know that the Defendant was slowing and the defendant makes no claim that, in any manner, he signalled that he intended to or was slowing his truck, although he admitted that he knew that there was a vehicle...