Herman v. Spiegler

• Decision Date: 28 October 1966
• Docket Number: No. 10185,10185
• Citation: 82 S.D. 339,145 N.W.2d 916
• Parties: Dale L. HERMAN, Plaintiff and Appellant, v. William SPIEGLER and William Ackerson, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 916

145 N.W.2d 916

82 S.D. 339

Dale L. HERMAN, Plaintiff and Appellant, v. William SPIEGLER and William Ackerson, Defendants and Respondents.

No. 10185.

Supreme Court of South Dakota.

Oct. 28, 1966.

Agor, Siegel, Barnett & Schutz, Aberdeen, for plaintiff and appellant.

Voas, Richardson & Groseclose, Aberdeen, for defendants and respondents.

BIEGELMEIER, Judge.

Plaintiff sues for injuries resulting from a collision of the car he was driving on a 26 foot gravel county road with a stackmover being pulled by a tractor driven by defendant Spiegler. The vehicles were all traveling in a westerly direction. The stackmover had ten pointed teeth or tines which are used to load the hay and then serve as a bed for it. These protrude to the rear of the mover while in transit. The morning was foggy though there was dispute as to its density. It seems without dispute the collision occurred in daylight about 9:00 o'clock in the morning on a level road; the stackmover was 26 feet long, 15 feet wide and 16 or 18 feet high and loaded with 6 or 7 tons of hay. Defendants' version and evidence showed visibility to be from 1/2 to 3/4 miles and no vehicles had lights on or needed them. Plaintiff's evidence showed the foggy condition was general over a two mile distance and a long period of time before and after the collision with visibility of 100 to 150 feet and he had his headlights on low beam. There were no lights, reflectors, flags or other warning devices on the stackmover. After loading the hay defendant Ackerson followed the stackmover in a pickup; some evidence indicated its lights were on so as to shine on the load and give notice of its presence to traffic approaching from the rear. However, as he reached his farm entrance he drove in to his farm yard without so warning Spiegler who had about another 300 feet to go before turning off the road. It was during this last distance the collision occurred. The trial was sharply contested and resulted in a jury verdict for defendants.

Plaintiff's appeal raises only one question--the giving of an instruction as to unavoidable accident. The parties do not raise any question that the trial court fully instructed the jury on negligence, contributory negligence, proximate cause and hurden of proof.

Plaintiff's sole claim of error is the giving of Instruction 9 which was:

'If you do not find that any party in this case was guilty of negligence which caused or contributed to the accident here involved, then, for the purposes of this case, any injury or damage here claimed would be deemed the result of an unavoidable accident. If under the rule just stated you find the accident unavoidable, your verdict should be for the defendant.'

The court considered an unavoidable accident instruction in Cordell v. Scott, 79 S.D. 316, 111 N.W.2d 594, and held it was not prejudicial error to give an instruction in somewhat different wording. Plaintiff's present objections and arguments against a jury being so instructed in any action are much the same as those stated in Butigan v. Yellow Cab Company, 49 Cal.2d 652, 320 P.2d 500, 65 A.L.R.2d 1, quoted by the court in Cordell. It is claimed it is error as other instructions, such as those mentioned above, clearly give the jury all the guide lines necessary to permit or deny recovery and the 'unavoidable accident' instruction is not only unnecessary but misleading as the jury may get the impression unavoidability is an issue to be decided and if proved, it constitutes a separate ground of nonliability of the defendant.

We can agree if the jury is otherwise property instructed requiring negligence (proximately causing the damages, of course) to permit recovery, that failing to find such negligence it should return a verdict for him, and another instruction stating if they find no party so negligent it should return a verdict to that effect is duplication and unnecessary surplusage. The court so stated in Cordell. However, it rejected the rule of total exclusion and wrote:

'unavoidable accident instructions should be restrictively used * * *. Such instruction may properly be given in those cases where there is evidence that something other than the negligence of one of the parties caused the mishap. It is particularly apt where the further element of 'surprise' is present such as the sudden and unexpected presence of ice, the blowout of a tire, the malfunction of brakes, or other mechanical failure.'

Despite the observations of the court that it is surplusage and should be restrictively used, when it is given the prevailing party incurs the hazard of an appeal (here it is the sole reason of the appeal) and the obligation to show the evidence was sufficient to sustain it.

In most jurisdictions it is not ordinarily reversible error to refuse to give the unavoidable accident instruction. 65 A.L.R.2d § 47, page 136. Plaintiff has cited cases decided since Cordell and in effect requested the court to re-examine the question and determine it is prejudicial error to give it in any action. Several courts have recently receded from prior decisions, disapproved of the instruction and overruled previous pronouncements permitting it. Fenton v. Aleshire, 1964, 238 Or. 24, 393 P.2d 217; Vespe v. DiMarco, 1964, 43 N.J 430, 204 A.2d 874, and Lewis v. Buckskin Joe's, Inc., 1964, Colo., 396 P.2d 933, are illustrative of that trend.

Defendants' citations cover a wide range, among them being cases where the instruction was refused ¹; disapproved though held harmless error ²; involving a dust storm ³; fog ⁴; slushy and slippery roads ⁵; mechanical failure of brakes and traffic lights ⁶ and the sudden darting of child. ⁷ and an animal ⁸ in front of a car. Hackworth v. Davis, 87 Idaho 98, 390 P.2d 422, also cited, approved the giving of the instruction where a third automobile suddenly skidded out of...