Hendrickson v. Swenson

• Decision Date: 14 November 1911
• Citation: 133 N.W. 250,28 S.D. 323
• Parties: JOHN HENDRICKSON, Plaintiff and appellant, v. J. A. SWENSON, Defendant and respondent.
• Court: South Dakota Supreme Court

28 S.D. 323, 133 N.W. 250 (1911)

JOHN HENDRICKSON,

Plaintiff and appellant,

v. J. A. SWENSON,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Day County, SD

Hon. Frank McNulty, Judge

Affirmed

Sears & Potter

Attorneys for appellant.

Anderson & Waddel

Attorneys for respondent.

Opinion filed November 14, 1911

CORSON, J.

This is an appeal by the plaintiff from a directed judgment in favor of the defendant. The action was instituted by the plaintiff to recover damages alleged to have been sustained by him for personal injuries and partial destruction of his buggy.

It is alleged in the complaint:

"That prior to the 6th clay of May, 1910, the defendant wrongfully, and in violation of law, placed in the public highway, between sections 1 and 2, in the township of Webster, Day county, South Dakota, a certain obstruction, to wit, a large rock or stone about 3 feet by 2 1/2 feet in size, and about 3 feet in thickness. That the said defendant placed said stone in the highway with the intent to obstruct public travel, and the same was an obstruction, and was dangerous to passing teams. That, at the point where said obstruction was placed in said highway, the public travel was considerable and continuous. That, on the 6th day of May, 1910, this plaintiff was driving along said public highway with a team and buggy or light wagon the team being a young and spirited team and it being evening anal dark, and the said stone being placed at the foot of the hill down which the road ran, the plaintiff, although exercising due care, ran into said stone, his horses being at that time going at a rapid gait, and by the contact with said stone plaintiff was thrown from his buggy onto the ground, and his face and head cut and severely injured. That said buggy was broken and rendered useless, and his team of horses broke loose therefrom and escaped from plaintiff. That the plaintiff was caused great suffering, pain, and inconvenience by reason of said injury, and his property was damaged thereby, both his horses and his wagon; and by reason of the said wrongful act of the defendant in placing said stone on said highway plaintiff has been damaged in the sum of $1,000, for which he asks judgment, together with his costs and disbursements of this action."

The defendant denied generally and specifically each of the allegations of the complaint.

At the close of all the evidence, the defendant moved the court to direct a verdict in his favor, far the reason that the evidence fails to show that the plaintiff has been damaged, or that the damage was caused by any act on the part of the defendant.

This motion was granted by the court, and the jury directed to return a verdict in favor of the defendant. The verdict being directed, a review of the evidence becomes necessary, as the only question presented by the record is, Was the court justified under the evidence in so directing a verdict in favor of the defendant?

Mr. Alley, being called as a witness on behalf of the plaintiff, testified in substance: That he was a surveyor; that he was familiar with sections 1 and 2 of Webster township, Day county; that he made measurements of the section line between sections and 2 in that township; that there was a large stone near the corner of the fence; that the stone was of the size mentioned in the complaint, and that at its highest point was about 20 inches above the ground; that the stone was located 25 1/2 feet from the center of the road, and was 772 feet inside of the 33-foot limit east of the center line; that south of the stone there was a hill of about 25 or 30 degrees slope, and extending about 100 feet; that just at the point in the highway near the stone there was a turn-off to the east, and just a little further north there was a marsh, and the road turned to the east to avoid the marsh. On cross-examination, he testified in substance that the road at the point near where the stone was turns to the east, and the section line goes straight to the north.

The defendant, being called as a witness for the plaintiff, testified in substance: That he was the owner of the fence at the corner where the stone described by Alley lay; that he built the fence and placed the stone there to protect the corner post.

The plaintiff, as a witness on his own behalf, testified in substance: That he lived 15 miles north of Webster; that he did his trading at that place, and traveled over the road testified to; that he traveled over that road about the 6th of May, 1910; that he was in Webster that day, and left for home about half past 10 in the evening; that he had a pair of colts, about three or four years old, hitched to the buggy; that on the way home that night he struck the stone Mr. Alley testified to at the foot of the hill; that it was lying right out from the corner post, and when he came down the road he had to turn east, and the buggy wheel happened to strike the stone, and he was thrown out and rendered unconscious for a time; that when he woke up his team had gone away with the neck yoke and whiffletrees; that the buggy was badly damaged; and that he was seriously injured about the face and body. And he describes the manner in which the accident occurred as follows:

"I was driving these horses the same way I had always driven them. I was pretty dark, and I was driving without mittens, and just when I was on top of the hill I went down in my buggy box to get my mittens, and I got hold of one and tried to get that on, and tried to get the other one, and the horses turned before I got the lines; they started to go down hill. They turned where that rock is for the corner post. I did not see the stone before the buggy wheel was on it. I had the lines in my hand at the time."

On cross-examination, he testified as follows:

"I left town about half past 10. ... I drove a pair of colts that night. These colts were pretty lively. I had not driven them very often to town. They were pretty spirited. They never ran away before this; this was the first time. I came down this hill, and was fumbling around for my mittens. This hill is 4Y2 miles from Webster. It was cloudy and pretty dark. I had not worn my mittens since starting from Webster. I had no trouble with the team. I had the lines down at the bottom to get the mittens. They started up, and I had the lines in my hand. They started to run down the hill--just trotting--a common-times trots. I cannot tell exactly how it happened. I was looking down in the buggy box; I couldn't look down in the buggy box and watch the team at the same time. I had traveled this road quite often before. ... I had been in the habit of turning around this corner and driving down across Swenson's land before he fenced it; also after the fence was there. I took that angling road to avoid the slough on the section line to the north, and this stone was just at the point where you turned off the section. I had seen it there quite often before."

Dr. Schenecker, a witness sworn on behalf of the plaintiff, testified as to the injuries the plaintiff received; that he dressed the wounds, and about two or three weeks after this he dressed them again.

The defendant testified as a witness on his own behalf, but his evidence was not material, and is therefore omitted.

It is contended by the respondent in support of the ruling made by the court, directing a verdict, that it clearly appears from the evidence that the injuries of the plaintiff and his buggy were caused by his own contributory negligence, and that that was the proximate cause of the injury. It is contended, however, by the appellant that as to whether or not the injury was caused by the contributory negligence of the plaintiff was a question for the jury, and that under the facts proven the court was not...