Harvison v. Herrick
| Decision Date | 24 April 1933 |
| Docket Number | 7235. |
| Citation | 248 N.W. 205,61 S.D. 245 |
| Parties | HARVISON et al. v. HERRICK. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Aurora County; R. C. Bakewell, Judge.
Action by Charles Harvison and others against Arthur F. Herrick. From judgment for plaintiffs and from order denying motion for new trial, defendant appeals.
Affirmed.
Fellows & Fellows, of Mitchell, for appellant.
Morgan & Eastman, of Mitchell, for respondents.
On August 12, 1928, plaintiffs were the joint owners of a Curtiss JN4D biplane which they had recently rebuilt and assembled at the home of one of the plaintiffs in White Lake S.D. They desired to fly the plane from a field about two miles north and one mile east of White Lake, and shortly before sundown on the day in question they undertook to move the plane upon and along the public highways to the field from which they expected to fly it. They lifted the tail of the plane into the rear seat of a Ford touring car and started out along the road, driving the Ford in the usual manner, the plane running upon its own landing wheels and following tail foremost behind the Ford, its wing surfaces extending laterally across the highway. The span of the upper wing surface was approximately forty-four feet and of the lower wing surface approximately thirty-five feet. In the position in which the plane was being drawn the lower wing surface extended across the highway approximately two and one-half feet from the ground and the gap was approximately five feet, making the upper wing surface about seven and one-half feet from the ground. The plaintiff Baumgardner was driving the car, and plaintiff Harvison and several others were assisting. The road upon which plaintiffs were towing the plane north was an ordinary twenty-four foot graded highway and the span of the wings over-hung the ditches on each side so that it was impossible for the towed plane and an approaching car to pass unless the car pulled into a side road and permitted the plane to go by, or unless the tail of the plane was taken out of the Ford and swung around ninety degrees to bring the wing span parallel with the road instead of across it. Plaintiff Harvison carried a white flag about a yard square, and when the approach of a car was observed he would go ahead, flag the car down, request the driver to stop, and make such arrangements as the situation might demand at the moment for the passing. In the first mile north from the city of White Lake plaintiffs met several cars and passing was arranged for all of them without difficulty or incident. When they had reached a point about a mile and three-quarters beyond the town of White Lake, plaintiffs saw an automobile (which was later ascertained to be owned and driven by the defendant) approaching from the north. It was a mile or more distant when first observed. The Ford car drawing the plane was stopped and Harvison went on ahead with his white flag. He was approximately two blocks in advance of the Ford and the plane when defendant's car reached him. He waved his flag and called out and endeavored to stop the car but was unsuccessful in doing so. One Ellis, another member of the party with the plane, had also advanced some little distance ahead of the plane and was about halfway between Harvison and the plane. He too endeavored to stop defendant, but was equally unsuccessful. Defendant apparently paying no attention to the efforts of either Harvison or Ellis, continued south and drove headon, at a rate of some fifteen to twenty-five miles per hour, into the right wing surfaces of the plane which extended across the road behind the Ford car.
Thereafter plaintiffs instituted this action against defendant seeking to recover from him the amount of the damage thus done to their airplane. The case was tried to a jury, and verdict and judgment were for the plaintiffs in the sum of $500 and costs, docketed in April, 1930. From this judgment and from an order denying his application for new trial, defendant, on March 18, 1931, appealed to this court. The time for filing briefs on appeal was extended on fifteen different occasions by stipulation of counsel and the matter has been but recently submitted to this court.
There was some conflict in the testimony as to just how dark it was at the time the accident occurred, as to whether or not the appellant was negligent, and as to whether or not respondents were contributorily negligent. All these conflicts, however have been resolved in favor of respondents by the verdict of the jury, whereby it was held, in substance, that respondents were proceeding with the enterprise in which they were engaged with due care and caution; that the appellant was negligent; and that his lack of care was the proximate and effective cause of the collision. Appellant challenges the sufficiency of the evidence to support the verdict. To recite the testimony in detail would serve no useful purpose. We have carefully examined the record, and it is our opinion that the verdict of the jury finds ample support in the testimony received.
There remains in this case therefore but a single question, and that, one of law. Section 4309, Rev. Code 1919, reads in part as follows: "Every person who shall, without authority knowingly and wilfully obstruct * * * any public highway * * * shall be deemed guilty of a misdemeanor * * * and...
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