Iverson v. Knorr
| Decision Date | 12 May 1941 |
| Docket Number | 8424. |
| Citation | 298 N.W. 28,68 S.D. 23 |
| Parties | IVERSON v. KNORR. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County; Lucius J. Wall, Judge.
Action by Nellie M. Iverson against Julius L. Knorr for injuries suffered in an automobile collision. Judgment for defendant and plaintiff appeals.
Affirmed.
T. R Johnson and Chris T. Mortenson, both of Sioux Falls, for appellant.
Davenport & Evans, of Sioux Falls, for respondent.
Plaintiff seeks to recover damages for injuries suffered in an automobile collision. The trial court was of the opinion that plaintiff's evidence established her contributory negligence as a matter of law, and directed a verdict for defendant at the close of plaintiff's case. Plaintiff predicates error on that ruling.
The conduct of plaintiff is not in dispute. She was able to reconstruct the circumstances of the accident with exactitude.
Negligence of defendant and the causal relation of that negligence to plaintiff's injury is assumed. Whether, as a matter of law, the exhibited conduct of plaintiff was negligent and, if so, whether that conduct, co-operating with the negligence of defendant, was a legally contributing cause of the harm suffered by plaintiff, are the questions for decision.
The plaintiff, driving a Ford Pick-up, and defendant, driving a Mercury, approached each other from opposite directions on a north and south paved highway just outside the limits of Sioux Falls, South Dakota, under circumstances affording a perfect opportunity for observation and control. The highway grade was of sufficient width to accommodate a twenty foot strip of pavement and to provide ordinary gravelled shoulders. Plaintiff came from the south and defendant from the north. No other travelers were in sight. Plaintiff was delivering milk, and intended to make her next stop at a gas station located along the highway at her left. There was no intersecting highway in the vicinity. Throughout the period of time involved, defendant maintained his position on his right hand side of the road. Plaintiff first observed him when he was at a distance of slightly more than 1500 feet, and then assumed that he was traveling at a lawful rate of speed. Thereafter she looked in her rear view mirror, ascertained that there was no one overtaking her, extended her arm out of the window full length at the left, and at a point 400 feet from defendant and slightly more than 100 feet from the point of collision, she turned her car to the left and angled towards the gas station, the driveway of which was then over 100 feet to the north of her. By the time her front wheels had crossed the center line of the pavement, from observations made of the defendant at a then distance of more than 350 feet, plaintiff had concluded that defendant was traveling in excess of sixty miles an hour. She was then traveling between fifteen and twenty miles an hour. Thereafter she continued angling across until about ten feet from the point of collision, where she turned more sharply to the left. In the meantime the defendant had applied his brakes and had veered slightly to his right. With his left rear wheel just on the pavement, the right front of defendant's car collided with plaintiff's right wheel and fender. At the moment of impact plaintiff's car was traveling northwest and defendant's car was traveling west of south. In traversing the left ten feet of pavement, plaintiff traveled forward slightly more than 100 feet.
With these facts in mind we set forth certain applicable rules of law.
Contributory negligence has been defined by the American Law Institute in its Restatement of the Law of Torts, § 463, as follows: " Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, co-operating with the negligence of the defendant in bringing about the plaintiff's harm." At § 464 of the same volume the standard of conduct to which such plaintiff must conform is described in broad terms as that " to which a reasonable man would conform under like circumstances." Standards of conduct to which such a plaintiff must conform are frequently described in more precise terms by statute. Such is the rule of the road, adopted to safeguard travelers, which requires that a driver of a vehicle (SDC 44.0309) " shall drive the same upon the right half of the highway * * *." It is well settled in this jurisdiction that although contributory negligence generally is a question of fact and therefore for the jury, yet " 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. Railway Company et al., 64 S.D. 476, 498, 268 N.W. 369, 381. Under ordinary circumstances, departure from the statutory standard which is a " contributing cause, co-operating with the negligence of the defendant in bringing about the plaintiff's harm" will constitute contributory negligence as a matter of law. Dwyer v. Peters et al., 58 S.D. 357, 236 N.W. 301; Martin v. Herzog et al., 228 N.Y. 164, 126 N.E. 814. A plaintiff may not recover if his negligence is a legally contributing cause of the injuries of which he complains. Ulrikson v. Chicago, M., St P. & P. Railway Company, supra.
Defendant contends that in passing from right to left on the highway by an extended diagonal course, plaintiff failed to conform to the statutory standard of conduct which required that she drive on the right half of the highway, and that this violation was a contributing cause of her injuries. We have concluded that this contention must be sustained.
It seems manifest to us, first, that the Legislature did not intend to interfere with the right to make left turns across a highway by the adoption of the " Drive on the right" rule, and, second, it did not intend that the rigid rules established for left turns at intersections should apply at other points on the highway, or it would have made its intention explicit. It seems equally manifest to us that as the length of a diagonal left hand turn is extended it eventually reaches a point where added length ceases to further serve any reasonable need for turning and takes on the character of left hand driving. In other words, we are of the view that driving on the left side of the highway for an unnecessary and unreasonable distance is...
To continue reading
Request your trial