Grosz v. Bone
| Decision Date | 27 January 1925 |
| Docket Number | No. 5471.,5471. |
| Citation | 48 S.D. 65,201 N.W. 871 |
| Parties | GROSZ v. BONE et al. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Brown County; R. D. Gardner, Judge.
Action by Otto Grosz against H. L. Bone and another, copartners under the name of H. L. Bone & Son. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed and remanded.
McFarland & Kremer, of Watertown, for appellants.
Campbell & Fletcher, of Aberdeen, for respondent.
Respondent complains of injuries received about three or four miles east of the city of Aberdeen, on September 18, 1922, while traveling on the Yellowstone Trail. The defendants, at the time of respondent's injuries, were graveling contractors engaged in the contract for the resurfacing of the Yellowstone Trail. The respondent testifies that, when he was driving on this highway on the above date, he was met by a car with glaring lights, at about 6:30 a. m. (before daylight). Although the respondent was blinded by this light, he continued to drive at about 15 miles per hour for about the distance of a city block, and then ran his car against the gravel pile, which threw him from his car and caused the injuries complained of.
Respondent further testifies that he observed no warning lights on his way out that morning. He testifies that he knew that the highway was being resurfaced. His contention is that he was not guilty of contributory negligence in his failure to look out for danger when there was no reason to apprehend any, and that he was warranted in the assumption that no dangerous obstruction existed for travelers. While appellants contend that under the facts presented the respondent was guilty of contributory negligence.
The appellants on September 16, 1922, caused to be dumped on the south side of the traveled highway a load of gravel, and left the same in a piled-up condition at a place where the road was 24 feet wide. Near this place the respondent met the car with the dazzling light, which confused him, and immediately after passing this car he observed (from the lights cast from his own car) the gravel pile confronting him, but he was unable to divert his car from the collision with this obstruction, and his car was overturned, causing the injuries complained of.
[1][2][3]While respondent contends that the collision was caused by the negligence of appellants in obstructing the highway, appellants contend that respondent was guilty of contributory negligence in the operation of his car. We think that the respondent knew that the highway was being resurfaced, and should have anticipated a torn-up condition of the highway, and a greater degree of care in the operation of his car would be necessary to avoid accidents. It was clearly his duty to, not only slow down his speed, but stop his car, and in failure to do so he must be held guilty of contributory negligence, which invited the accident. The respondent failed to show any attempt to control his car by use of the brakes or swerving the car from the obstacle. It is true that no warning lights were placed on the gravel pile, yet the immediate and proximate cause of the accident was the respondent's failure to properly operate his car rather than appellant's failure to properly light the highway. The inference is clear that he was moving with considerable speed and in a blinded condition when his car was overturned, and he became pinned down under the car. This is clearly shown from the evidence.
Respondent testified as follows:
“I saw another car coming which had on a headlight; I drove off to the side of the road and slowed down my car and figured I could pass and see ahead of me and continue on the trip.
Q. It was a glaring light, then, was it? A. Enough so that I could not see ahead of my car.
Q. You have no speedometer, and it was dark so you could not judge how fast you were going? A. Not over 20 miles at any time.
Q. You throttled down a matter of 5 miles an hour as you approached the glaring light? A. Yes, sir.
Q. Was this glare of this light very apparent a block away from it or more? A. Yes, sir.
Q. It was quite glaring and confusing at that distance? A. Yes, sir.
Q. So it was confusing to your sight at that time, and you throttled down to about 15 miles an hour then? A. Yes, sir.
Q. It was after you passed that car, you saw the obstruction in the road? A. Yes, sir.
Q. Had it not been for the glare in your eyes of this bright light of the car approaching, from the side, you would not have run into this gravel? A. I presume I would not. I would have probably seen it.
Q. You knew that resurfacing and repairing of the road was taking place coming towards Aberdeen? A. Yes; but I could not tell how far it got this way.
Q. You knew they were between here and the next town? A. Yes, sir.
Q. And you knew that on that morning when you started out? A. Yes, sir.
Q. You knew the character of the work; it was resurfacing and graveling of the road? A. Yes, sir.”
In 28 A. L. R. 949 (Carruthers v. Campbell, 195 Iowa, 390, 192 N. W. 138), is a valuable annotation reviewing the cases as to when a car may be said to be “under control.” In Randolph v. Hunt, 41 Cal. App. 739, 183 P. 358, the court said:
“A car is under control when it may be stopped promptly.”
In Gilbert v. Vanderwaal, 181 Iowa, 685, 165 N. W. 165, it is...
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