Jensen v. Miller, 10081

• Decision Date: 12 November 1963
• Docket Number: No. 10081,10081
• Citation: 124 N.W.2d 394,80 S.D. 384
• Parties: Robert JENSEN, by Ruth Jensen, his Guardian ad Litem, Plaintiff and Respondent, v. Lawrence MILLER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 394

124 N.W.2d 394

80 S.D. 384

Robert JENSEN, by Ruth Jensen, his Guardian ad Litem, Plaintiff and Respondent, v. Lawrence MILLER, Defendant and Appellant.

No. 10081.

Supreme Court of South Dakota.

Nov. 12, 1963.

Davenport, Evans, Hurwitz & Smith, Ellsworth E. Evans, Carleton R. Hoy, Sioux Falls, for defendant and appellant.

Mundt & Weisensee, George D. Weisensee, Sioux Falls, for plaintiff and respondent.

HANSON, Presiding Judge.

In this action to recover damages for personal injuries the jury returned a verdict in favor of defendant. On plaintiff's application a new trial was granted and defendant appeals.

The accident occurred about 7:30 Sunday morning, February 11, 1962, on Highway 16 approximately 3 miles west of Sioux Falls. Daylight was just breaking, the highway was icy, and it was very foggy. The plaintiff, Robert Jensen, a thirteen-year-old boy, was riding in the front seat of a car owned and operated by his father. They were proceeding were on the way to Wall Lake.

The defendant, Lawrence Miller, a music instructor in the Gettysburg public schools was in Sioux Falls with some music students attending a music clinic. They were staying at the Westwick Motel located west of the city on the south side of Highway 16. About 7:30 Sunday morning defendant left the motel in his 1961 Chevrolet to take a student, Paul Sholmeier, to church. As defendant approached Highway 16 he testified he stopped at the stop sign, looked east and west, and seeing no approaching cars slowly entered the highway and turned east. Shortly after turning east he was struck from behind by another eastbound vehicle driven by Hobson Mason. The impact caused defendant to lose control of his car which swerved north and collided with the Jensen automobile. The right front side of defendant's car struck the front end of the Jensen car and came to rest facing west. The Mason car came to rest in the north ditch east of the Jensen and Miller vehicles. At the time of the first impact defendant estimated his speed to be 18 to 20 miles per hour and Mason estimated his to be 30 miles per hour. Because of limited visibility all the vehicles involved had headlights on.

Mason said he could see the Jensen automobile approaching from the east at a distance of 400 to 500 feet. Plaintiff's father testified he could see the Mason vehicle approaching from the west at a distance of 300 or 400 feet. At the same time he observed defendant coming out of the motel driveway and commented the two vehicles were going to hit. He thereupon pulled over to the north shoulder and stopped where his vehicle was soon thereafter struck by defendant's automobile.

Contrary to defendant's contentions plaintiff's application for a new trial conforms to the letter and spirit of our appellate procedure contained in SDC 1960 Supp. Chapter 33.16. It is of no consequence that the application for a new trial is titled a 'Motion for New Trial'. SDC Supp. 33.1603 specifically refers to a 'motion or application for a new trial'. Likewise, it is of no significance that the 'particulars wherein the evidence is claimed to be insufficient' required by SDC 1960 Supp. 33.1606 in support of subdivision (6) SDC 1960 Supp. 33.1605 is stated in an affidavit attached to the Motion for New Trial rather than in the body of the Application itself. The concluding paragraph of the Motion refers to the supporting 4-page affidavit in the following language: 'That attached hereto is an affidavit in support of this motion setting out more fully the aforesaid grounds for a new trial'. Court and counsel were thereby fully apprised of the particulars wherein plaintiff claimed the evidence was insufficient to support the verdict.

The remaining question is whether or not the trial court abused its discretion in making and entering its order granting a new trial upon the following grounds:

'1.

'That the verdict of the jury was not sustained by sufficient evidence, was contrary to the law and the evidence and did not do substantial justice.

'The defendant Miller was negligent as a matter of law for entering upon an arterial highway without first making certain that such movement could be made in safety. This duty is placed on the party entering an arterial highway by statute, and the very fact that the accident occurred is evidence of the fact that the defendant violated this statutory duty.

'Further, by defendant's own testimony he did not stop again after leaving the stop sign, and does not know if he looked to the west again while traveling the thirty feet from the stop sign to the highway. In order to avoid being negligent as a matter of law, defendant would have had to at least take these precautions before entering the icy highway.

'The physical evidence would indicate that if defendant Miller had looked to the...