Jamieson v. Gerth, 7419.

• Decision Date: 23 August 1933
• Docket Number: No. 7419.,7419.
• Parties: JAMIESON v. GERTH.
• Court: South Dakota Supreme Court

61 S.D. 514

249 N.W. 921

JAMIESON

v.GERTH.

No. 7419.

Supreme Court of South Dakota.

August 23, 1933.

Appeal from Circuit Court, Brown County; Van Buren Perry, Judge.

Action by Donald Jamieson, a minor, by Francis Jamieson, his guardian ad litem, against Helen Gerth. From a judgment for plaintiff and an order overruling a motion for a new trial, defendant appeals.

Reversed, with instructions.Williamson, Smith & Williamson, of Aberdeen, for appellant.

E. B. Harkin and F. W. Noll, both of Aberdeen, for respondent.

RUDOLPH, Presiding Judge.

Donald Jamieson, a minor, by his guardian ad litem brings this action to recover damages sustained in an accident occurring at a street intersection in the city of Aberdeen. The plaintiff was driving a motorcycle with a side car attached, and was going east on Eighth avenue in the city of Aberdeen. Another young man was riding in the side car. The defendant was driving her automobile north on State street, and at the intersection of Eighth avenue and State street a collision occurred. The plaintiff was quite severely injured, and the jury returned a verdict in his favor. This is an appeal from the judgment entered upon the jury's verdict and an order overruling a motion for a new trial.

The defendant made motions for a directed verdict and for judgment notwithstanding the verdict, for the reason that the undisputed evidence established the plaintiff's contributory negligence as a matter of law. We are of the opinion that these motions should have been granted, and this opinion will of necessity dispose of the entire case.

[1] The jury having returned a verdict in favor of the plaintiff, we, of course, are bound to accept the testimony of plaintiff's witnesses as being the correct version of what actually happened at the time of this collision. The plaintiff's witnesses testified as follows:

Clifford L. Clark testified: “The motorcycle was traveling 18 to 20 miles an hour The motorcycle was right in the intersection when I first became aware that there would be a collision. The automobile was traveling 25 to 30 miles per hour. At the time the motorcycle got in the intersection the automobile was 5 or 10 feet back from the intersection.”

Helen Sahli testified: “The car was going about 25 or 30 miles an hour. As it continued north it didn't seem to slacken any as to speed. The motorcycle got into the intersection first.”

Pete Schneider testified: “The back end of the motorcycle was four feet, I think, past the sidewalk into the intersection before the motor car came into the intersection. The motorcycle was going about 18 miles an hour.”

John Stotz testified: “The automobile was going about 30 miles an hour.”

Donald Jamieson, the plaintiff, testified: “As I approached State street I was driving about 18 to 20 miles an hour. At that time I observed the car coming from the south. It was about three-fourths of a block away. I figured I had plenty of time to make it and I kept on going straight east. When I saw this car I looked north and kept on going east and was past the center of the intersection when the collision took place--that is about as much as I know. I did not see the car directly before the collision. After I saw the car coming up from the south I looked to the north. I did not look back again at the car and I kept on driving east at the same rate of speed I had been going, and I continued so to drive until the collision occurred. I did not slow up my car or put on the brakes or endeavor to stop until the front end of the car was into the sidecar.”

[2] Accepting the above testimony as true and as the correct version of what...