Haase v. Willers Truck Service

• Decision Date: 25 October 1948
• Docket Number: 8942
• Citation: 72 S.D. 353,34 N.W.2d 313
• Parties: ALICE HAASE, Special Administratrix of the Estate of William C. Haase, deceased, Appellant, v. WILLERS TRUCK SERVICE, INC., and Clifford Heath, Respondents.
• Court: South Dakota Supreme Court

Inc., 72 SD 353, 34 NW2d 313 (1948)

ALICE HAASE,

Special Administratrix of the Estate of William C. Haase, deceased,

Appellant,

v. WILLERS TRUCK SERVICE, INC., and Clifford Heath

,

Respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Union County, SD

Hon. Lucius J. Wall, Judge

#8942—Affirmed

A. J. Beck, Elk Point, SD

Attorney for Appellant.

Bailey, Voorhees, Woods & Fuller, Sioux Falls, SD

Donley & Crill, Elk Point, SD

Attorneys for Respondents.

Opinion Filed Oct 25, 1948; Rehearing Denied Nov. 30, 1948

SMITH, Judge.

William C. Haase was killed November 25, 1942, as a result of a collision of two motor vehicles. The administratrix of his estate brought this action in May 1945, under SDC 37.22 for the benefit of the next of kin, and alleged that the death was caused by the negligence of defendants. The answer of the defendants contained a general denial, and an allegation that the death was caused by the contributory negligence of the deceased. Trial was had in November 1946. At the close of plaintiff’s case the court granted a motion of defendants for a directed verdict, and a verdict and judgment for defendants resulted. The plaintiff has appealed.

Viewing the record in the light most favorable to plaintiff, we are to determine whether there is any substantial credible evidence which would have supported a verdict of the jury for plaintiff. Hansen v. Isaak, 70 SD 529, 19 NW2d 521; Lohr v. Watson, 68 SD 298, 2 NW2d 6 and Wolff v. Stenger, 59 SD 231, 239 NW 181.

In support of the ruling of the trial court the defendants assert that in violation of SDC 44.0324 the deceased left the truck he was driving upon the paved portion of a country highway, although it was practicable to leave it on the eight-foot shoulder of the highway, and unnecessarily exposed himself to danger of harm by lying under and behind the truck so placed while attempting to put a chain on its right rear wheel, which conduct, in the undisputed circumstances, constituted contributory negligence as a matter of law. Of course, this contention assumes negligence on the part of defendants which was a proximate cause of the harm to decedent. We have concluded this contention must be sustained.

Plaintiff cannot recover if the more than slight negligence of the deceased was a legally contributing cause of his death. Ulrikson v. Chicago, M., St. P. & P. R. Co. et al., 64 SD 476, 268 NW 369 and Friese v. Gulbrandson, 69 SD 179, 8 NW2d 438. As applicable to this case, contributory negligence is conduct on the part of a decedent which falls below the standard to which he should have conformed for his own protection and which was a legally contributing cause, co-operating with the negligence of the defendants in bringing about his death. The standard by which his conduct is tested is that to which a reasonable man would conform under like circumstances. Iverson v. Knorr, 68 SD 23, 298 NW 28. Contributory negligence is generally a question of fact and to be submitted to the jury for decision; however, if it is a matter of declaring a standard of conduct or of applying such standard to a set of undisputed conduct facts which are of such a nature that reasonable men could not differ in opinion as to whether or not the exhibited conduct conforms to the established standard, then the matter is for the court. Ulrikson v. Chicago, M. St. P. & P. R. Co. et al., supra. And departure from a statutory standard of conduct which is a contributing cause, co-operating with the negligence of defendants in bringing about decedent’s death, will constitute contributory negligence by decedent as a matter of law. Iverson v. Knorr, supra.

A pertinent standard of conduct to which deceased was required to conform is prescribed by statute as follows:

“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; ...

SDC 44.0324.

We turn to a consideration of the undisputed facts established by the testimony of plaintiff’s witnesses, and the cross-examination of defendant Heath.

The collision which caused the death of decedent occurred on November 25, 1942 at a point on US Highway No. 77 about two and one-half miles northwest of Jefferson, Union County, South Dakota. Jefferson is but a few miles north of Sioux City, Iowa, and this highway carries all of the traffic to and through Sioux City from southeastern South Dakota. At the place of collision the highway extends east and west. It turns about twenty-five degrees to the southwest about 1,500 feet to the west of the place of collision. Travel to the east from this point leads to Jefferson and Sioux City and to the west travel leads to Elk Point. The pavement is 20 feet wide, the shoulders are just a few inches less than 8 feet wide, and there is a 6 or 7-foot slope into the ditch. On the day in question the ditch was filled with snow, and as a result of a rain earlier in the day, the pavement and shoulders were covered with ice. It was cold and a wind was sifting some snow across the pavement. A witness declared it was so slippery he had difficulty in standing up.

At some time between 5 and 6 p. m. an accident occurred at the point in question which precipitated a Model A Ford into the ditch on the north side of the highway and a Chevrolet sedan into the south ditch. The sheriff of Union County had been called. Before he left Elk Point for the scene of the accident, he called the deceased and asked him to follow with his wrecker tow truck. When the sheriff arrived he stopped his car on the shoulder of the road facing east just a few feet east of the Chevrolet which was located in the south ditch with its front end toward the northwest. The sheriff’s car was equipped with a 7-inch blinker light near the left rear fender on a level with the bumper. This light cast an intermittent red glare on the pavement, and the blinker itself could be seen at a considerable distance. He had this light and the headlights of his car lighted. Shortly after the sheriff arrived the deceased, driving the wrecker tow truck of his employer, pulled past the sheriff’s car to the east, turned around, came west and backed up in front of the Chevrolet. The sheriff got out of his car and walked over to the truck. The attempt then made to pull the Chevrolet out failed for lack of traction. The sheriff suggested chains. Thereupon the deceased backed his truck up somewhat in preparation for putting on the chains. As it was positioned as he started to work, the truck was at a 25-degree angle with pavement and its right front corner extended out on to the pavement two to three feet. It masked the blinker light on the sheriff’s car from traffic approaching from the west on the south half of the highway. No flares were put out, and although the sheriff was accompanied by his deputy, no guard was put out to the west to warn traffic of danger. The headlights of the tow truck cast their rays at an angle with the highway and slightly up. It had a cluster of colored lights at the top of its cab.

As the sheriff walked away toward his car, the deceased was lying on the ground at the rear of the truck with his face to the east, and a portion of his body under the truck as he attempted to put the chain on the right rear wheel. After getting into his car the sheriff drove east about 1,000 feet to an intersecting lane, turned around and returned with the idea of placing his lights west of the tow truck. During this trip he saw traffic coming from the west. A car passed on east. He then saw that a truck traveling east had just passed the tow truck of deceased and was stopping. He drove up to it as the driver was alighting and in strong language told him to move on as they did not want another accident. The trucker followed his advice.

When the sheriff reached the tow truck he found it had been backed down into the ditch at a right angle with the pavement and immediately to the west of the Chevrolet. Its right front wheel rested on the neck of the deceased. Death had probably come instantaneously.

Thereupon the sheriff sought to overtake the trucker with whom he had just talked. He caught up with him and followed him into Jefferson where he stopped. The driver was the defendant Heath. He readily admitted that he had felt a jar as he passed the tow truck. His testimony as an adverse witness at the trial disclosed that he was driving from Sioux Falls with a semi-trailer truck carrying a double deck of hogs. Coming out of Elk Point he was preceded by an automobile. He did not attempt to pass it. At times the car would draw away from him and then as it slowed down he would roll up to it, but mostly he drove at a distance of from 200 to 300 feet from the car. He was watching the road ahead but did not observe the road ahead of the car. After they had rounded the curve, above described, defendant Heath noticed the car ahead slow down and turn out for something. He followed it but rolled up to within 75 feet of it as it slowed and turned out. He did not see the tow truck until he was 100 feet or less from it. He did not put on his brakes because he thought that would put him into the ditch. At the moment of his discovery of the tow truck, or immediately thereafter, he felt his truck slip. He then “shifted into third and stepped on it to straighten it out.” As he straightened he felt a slight jar at the right rear of his trailer, and came to a stop to investigate. As he alighted the sheriff ordered him on. He neither saw deceased, nor did he know that he had harmed any one until so advised by the sheriff. The only mark left by the collision was a bent right front lamp on the tow truck of deceased, and a small broken rod on the right rear of the trailer of defendant.

The...