Klein v. W. Hodgman & Sons, Inc.

• Decision Date: 15 October 1957
• Docket Number: No. 9656,9656
• Citation: 77 S.D. 64,85 N.W.2d 289
• Parties: Betty KLEIN, Plaintiff and Respondent, v. W. HODGMAN & SONS, Inc., Defendant, Third Party Plaintiff and Appellant, and Edwin D. Klein, Third Party Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 289

85 N.W.2d 289

77 S.D. 64

Betty KLEIN, Plaintiff and Respondent, v. W. HODGMAN & SONS, Inc., Defendant, Third Party Plaintiff and Appellant, and Edwin D. Klein, Third Party Defendant and Respondent.

No. 9656.

Supreme Court of South Dakota.

Oct. 15, 1957.

Stephens, Riter & Mayer, Pierre, for appellant.

G. F. Johnson, Gregory, and Claude Maule, Winner, for respondents.

ROBERTS, Judge.

Plaintiff, a passenger in an automobile driven by her husband, brought this action against W. Hodgman & Sons, a corporation, to recover for personal injuries resulting from an accident alleged to have been caused by the negligence of the defendant. Before answering, defendant moved for leave as a third-party plaintiff to serve summons and complaint on the husband, Edwin D. Klein. Motion was granted and service was made on the husband designated in the action as third-party defendant. At the conclusion of plaintiff's evidence, motion was made for directed verdict and again at the conclusion of all the evidence. The motions were denied and the case was submitted to the jury that found the issues in favor of the plaintiff and assessed the damages at $20,000 for which judgment was rendered. Motion for new trial was denied and defendant appealed.

The accident out of which this action arose occurred about 11 o'clock p. m. on October 30, 1954, on U. S. Highway No. 18 about five miles west of Winner, South Dakota. Defendant company had been engaged under a contract with the State in resurfacing this highway westerly from Winner. At the scene of the accident, the south lane had been covered with a bituminous mat. Plaintiff's claim is that defendant failed in its duty to provide adequate signs or flares to warn approaching motorists of the presence of the edge of such newly laid mat extending across the south lane and along the center line of the highway and that in consequence of the failure to warn of this hazard the automobile wherein plaintiff was a passenger traveling east struck such ridge in the highway causing it to go out of control and crashing into a cement bridge.

Defendant advances the following grounds for reversal: First, insufficiency of the evidence to sustain the verdict; second, errors in giving and refusal of instructions; third, errors in the admission and exclusion of evidence; fourth, error in denying motion for mistrial because of irregularity in the selection of the jury; and fifth, excessiveness of the verdict.

Defendant contends that there is no evidence that the alleged negligence on the part of the defendant was the proximate cause of the accident; that if it be claimed that the proximate cause was established by circumstantial evidence the circumstances shown were not of sufficient probative force to justify submission to the jury.

In determining whether the trial court erred in not granting defendant's motion for directed verdict, the evidence and all legitimate inferences must be viewed in the light most favorable to the plaintiff. Flanagan v. Slattery, 74 S.D. 92, 49 N.W.2d 27; Kleinhesselink v. Porterfield, S.D., 83 N.W.2d 191. Plaintiff testified in substance that her husband was driving on the righthand side of the highway at a speed of 45 to 50 miles per hour; that she had been observing the highway ahead when the car hit a bump; and that she did not see anything on the highway which led her to believe that there was a bump or a newly laid bituminous mat in their lane of travel. The following excerpt is from her testimony on cross-examination:

'Q. What do you remember about the accident itself? A. I remember hitting this bump and the car swerving and hitting this bridge. That is all I know.'

The husband's account of the accident is as follows:

'I did not see any signs, flares, or equipment or anything that indicated to me that Highway 18 was under construction. * * *

'Q. Explain to the jury just what your recollection is of the events immediately preceding the accident. A. I just remember the car hitting a bump and starting to skid, and after that I can't remember what did happen.'

On cross-examination, Mr. Klein testified:

'Q. You don't know whether you hit a board or not, do you? A. No.

'Q. You don't know whether you had a blow-out or not, do you? A. I would say that I didn't have a blowout.'

The bituminous mat extended a distance of 571 feet westerly beyond the bridge with which the Klein car collided. An engineer employed by the State Highway Commission testified that the thickness of the mat was a minimum of one and one-half to a maximum of two inches. There was a beveled surface at the end of the mat between the new and old roadbeds. The thickness of the mat and the width of the bevel were much in dispute. An unlighted flare was found on the south side of the highway and to the west of the end of the mat.

Plaintiff had the burden, not only of proving that defendant was responsible for some negligent act, but that such act was the proximate cause of her injury and damage. Anderson v. Chicago & N. W. Ry Co., 59 S.D. 543, 241 N.W. 516; Marinko v. Chicago, M., St. P. & P. Ry. Co., 63 S.D. 256, 257 N.W. 639. The arguments of counsel assume that a contractor creating a hazard upon a public highway has the duty to erect warning signs and in the nighttime to maintain proper lights to warn travelers of the presence of the hazard and that a breach of such duty is actionable negligence when it is the proximate cause of injury to a traveler properly using the highway. Counsel for defendant contending that evidence of the cause of the injuries to plaintiff has no probative value relies strongly on the following statement in Erickson v. Todd, 62 S.D. 280, 252 N.W. 879, 881: 'This court has consistently applied the rule in criminal cases that, in order that a theory be established by circumstantial evidence, the facts and circumstances shown must not only be consistent with such theory, but inconsistent with any other rational theory. * * * This rule, we are convinced, should be the rule whereby the weight of circumstantial evidence is determined in a civil case as well as in a criminal case.' The facts in the instant case do not bring it within the rule of that case. Counsel for defendant argue the possibility that the accident may have been caused by a board in the lane of travel or by the blowout of a tire. There is no evidence from which it may be inferred that the accident was due to such a non-actionable cause. We agree with the Circuit Court of Appeals for the Eighth Circuit that 'A theory of proximate cause resting in probative circumstances does not become a matter of speculation and conjecture by a mere suggestion of other possible causes which are unsupported by any proved facts.' National Lead Co. v. Schuft, 176 F.2d 610, 614. The evidence as to the proximate cause of the accident presented a question of fact...