Heidner v. Germschied

• Decision Date: 12 March 1919
• Docket Number: No. 4439.,4439.
• Citation: 41 S.D. 430,171 N.W. 208
• Parties: HEIDNER v. GERMSCHIED.
• Court: South Dakota Supreme Court

41 S.D. 430

171 N.W. 208

HEIDNER

v.GERMSCHIED.

No. 4439.

Supreme Court of South Dakota.

March 12, 1919.

Appeal from Circuit Court, Davison County; Frank B. Smith, Judge.

Action by Theodore Heidner, as administrator of the estate of Edwinia Heidner, deceased, against Philip Germschied. From a judgment for plaintiff, and a denial of a new trial, defendant appeals. Affirmed.T. J. Spangler, of Mitchell, for appellant.

W. W. Reams and H. G. Giddings, both of Mitchell, for respondent.

WHITING, J.

Action to recover damages resulting from the killing of a child by an automobile driven by defendant. Verdict and judgment for plaintiff. From such judgment, and an order denying a new trial, this appeal was taken.

[1] Appellant objected to the introduction of any evidence upon the ground that the complaint was insufficient to state a cause of action; but he failed to call the attention of the court to any feature wherein the allegations thereof were insufficient. His objection was rightly overruled.

[2] Respondent alleged negligence, in that the automobile was running at an unwarranted rate of speed. Appellant assigns error in the receipt of certain testimony regarding such rate of speed. There was evidence as to the kind of car, the condition of the roadbed, the place where the brakes were applied, the place where the child was truck, and the distance that the car had slid along the ground before stopping. Two witnesses, who showed themselves familiar with the handling of cars, and who had examined this roadbed and seen the marks made by the sliding car, gave their opinions as to the rate at which the car must have been running. There was no error in the receipt of this evidence.

Appellant assigns error in the giving of certain instructions touching negligence, contributory negligence, and last clear chance. He does not question, and certainly could not rightfully, the legal correctness of such instructions; but he complains that the undisputed facts were such as not to warrant the instructions. We are of the opinion that the instructions were all demanded by the evidence that had been received, and that they fully and most fairly announced the law applicable to the facts.

[3] Appellant particularly complains because the court did not rule as a matter of law that the child was guilty of contributory negligence. He contends that the evidence bearing thereon was undisputed. The evidence was not without some conflict; but, even if it were not, the...