Knapp v. Styer

• Decision Date: 11 July 1960
• Docket Number: No. 16429.,16429.
• Parties: A. M. KNAPP et al., Appellants, v. C. W. STYER et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

280 F.2d 384 (1960)

A. M. KNAPP et al., Appellants, v. C. W. STYER et al., Appellees.

No. 16429.

United States Court of Appeals Eighth Circuit.

July 11, 1960.

COPYRIGHT MATERIAL OMITTED

Alan L. Austin, Watertown, S. D., for appellants. Irving A. Hinderaker and W. A. Hackett, Watertown, S. D., on the brief.

Stanley E. Siegel and Joseph H. Barnett, Aberdeen, S. D., for appellees. Hugh Agor and Douglas W. Bantz, Aberdeen, S. D., on the brief.

Before SANBORN, MATTHES, and BLACKMUN, Circuit Judges.

MATTHES, Circuit Judge.

This damage suit grows out of a collision between the front end of a motor tractor unit owned by appellee C. W. Styer which was being driven by appellee Henry Abel (sometimes referred to as "plaintiffs"), and the rear end of a stalled truck owned by defendants A. M. Knapp and Norman L. Langbehn, which their employee, defendant Howard Haigh had been operating. Styer recovered a verdict and judgment for property damage, including loss of use of his tractor unit, and Abel recovered for the personal injuries he sustained. Defendants have appealed and present and argue three points. One, the trial court should have directed a verdict for defendants because Haigh was not guilty of any negligence; two, plaintiff Abel was guilty of contributory negligence as a matter of law which precludes recovery by him; three, the court committed prejudicial and reversible error in permitting evidence to be offered and received that Styer had been damaged by loss of use of the tractor and in submitting this issue to the jury.

Jurisdiction is based upon diversity of citizenship and the amount involved. Inasmuch as the collision occurred in South Dakota, the law of that state applies.

In resolving points one and two, we have in mind that it is not our function, as a reviewing court, to weigh the evidence or substitute our judgment for that of the jury, which had the right to resolve disputed facts in favor of the plaintiffs, and upon review, all factual conflicts will be resolved in plaintiffs' favor and we will likewise accord them the benefit of every fair and reasonable intendment that the evidence will justify. Johnson v. Hill, 8 Cir., 274 F.2d 110, 112. So viewing the evidence, it was sufficient to establish the following:

On the night of April 30, 1959, defendant Haigh, as an employee of the defendants Knapp and Langbehn, was operating a truck loaded with farm machinery in a westerly direction on Highway No. 212 in Spink County, South Dakota. Around midnight, the right rear dual wheels suddenly separated from the axle housing and dropped off the vehicle, and Haigh immediately stopped his truck upon the pavement. At that point Highway 212, surfaced with "blacktop," was 24 feet wide, and had two lanes for traffic. The truck came to a stop in a diagonal position with its left front end further to the north of the center line than the left rear portion, which was resting on the center line of the pavement. Parts of the farm machinery extended or projected out of the rear of the truck between 3 and 4 feet and into the south lane of the highway normally used for eastbound traffic. Although the box of the truck was white, there was no tail gate, the back was open, and by reason of the cargo of machinery, the truck and its load, viewed from the rear, tended to blur into the landscape.

About 4 o'clock A.M. on May 1 (same night), plaintiff Abel was traveling west on Highway 212, at a speed of 50 m. p. h., driving a diesel truck-tractor, pulling a tandem trailer with a load of roofing material. When he reached a point between 200 and 300 feet east of defendants' abandoned truck he met an oncoming motor vehicle. Abel dimmed the lights on his tractor, but the eastbound vehicle did not, causing some slight interference with Abel's vision. Right after the two vehicles met and passed each other, Abel restored his lights to high beam, and then saw, for the first time, a dark object on the highway between 100 and 200 feet ahead of him. He reduced his speed to 30 m. p. h. and started to turn to the left, intending to pass the object. However, a portion of the machinery which extended from the rear of the truck and across the center line came into contact with the front end of Abel's tractor, causing it to collide with the rear end of the stalled truck.

Reverting to Haigh's actions following the breakdown of his truck, he testified that his truck became disabled at about 12 o'clock or midnight; that he placed three reflector-type flares around the truck — one about 150 feet ahead or to the west of the truck; one beside the truck and near the center line, and another about 150 feet to the east or behind the truck; that he then left his vehicle on the highway with parking and tail lights burning, and went to a gas station in Redfield, South Dakota, about 7 miles away, where he contacted his wife by telephone and requested her to come after him; that he waited at the station until about 1:30 A.M., when his wife arrived; that they returned to his truck, he relocated the reflectors by moving the east and west ones further from the truck, and they then proceeded to Wessington, South Dakota, about 46 miles away, where he secured necessary equipment and help. By the time he returned to his truck, around 5 A.M., the collision had already occurred. It further appears that Haigh did not seek aid in Redfield, although several wrecking services were available to him there.

Abel testified positively that he saw no lights, flares or reflectors before the collision; that he was looking straight ahead, he was alert, and his vision was good. His testimony as to the absence of flares to the rear of the truck was corroborated by a member of the South Dakota highway patrol who made a careful investigation of the collision shortly after it occurred and no flare was ever discovered to the rear of the defendants' vehicle.

Other pertinent evidence will be considered in disposing of the issues presented.

Plaintiffs' case was submitted upon the theory that although a disabled vehicle may temporarily be left unattended on the highway, and the highway used for making emergency repairs, there is a duty to obstruct traffic as little as possible and not to unnecessarily endanger others. In addition, the jury was instructed that whenever a vehicle is stopped or parked upon the highway, after sunset, lamps must be set out to the front and rear of such vehicle, visible at a distance of 500 feet. S.D.C.Supp. 44.0353, 44.0354.

As to Haigh's statutory duty to set out flares, Section 44.0354 of the Supplement to the South Dakota Code of 1939, as amended by Chapter 235 of the Session Laws of 1953, provides:

"Every operator of a motor truck, * * * shall, immediately upon bringing his vehicle or vehicles to a stop upon the traveled portions of any public highway at any time after sunset and before sunrise, * * * place two flares, or electric lights or reflectors properly lighted, one at least one hundred feet in the front, and one at least one hundred feet to the rear of such vehicle or vehicles, which flares, electric lights or reflectors shall be of such type of construction as will furnish continuous light for a period from sunset to sunrise at all times of the year."

Defendants interpret this statute to mean that "it (is) negligence per se to leave a truck parked on the highway, at night, without the required flares," but insist that they fully complied with the requirements of the statute, and hence are not faced with the dilemma of one who has failed to comply. The fatal weakness of defendants' position obviously emanates from their failure to give any credence to evidence favorable to plaintiffs, from which the jury could, and apparently did, find that Haigh negligently failed to place a flare 100 feet to the rear of the stalled truck. Defendants would have us close our eyes to the favorable evidence rule and consider only the evidence which supports defendants' theory. Quite obviously, the question of whether the flares were placed as required by the applicable statute, was a disputed one for the jury to resolve.

As to defendants' negligence in unreasonably obstructing the highway,¹ the jury was instructed to consider "(1) Whether the driver acted expeditiously and with reasonable promptness to obtain the removal of the parked vehicle from the travelled portion of the highway; (2) the means available to the driver to assist him in removing the parked vehicle from the highway; (3) all other relevant and material surrounding facts and circumstances." Under the facts and circumstances heretofore recited, there was ample evidence from which the jury could find that Haigh by failing to report his breakdown or to seek help in nearby Redfield, negligently failed to act "expeditiously and with reasonable promptness" in obtaining the removal of his truck from the travelled portion of the highway, where it obstructed traffic. See and compare, Descombaz v. Klock, 58 S.D. 173, 235 N.W. 502, 504; Frager v. Tomlinson, 74 S.D. 607, 57 N.W.2d 618; Plumb v. Burnham, 151 Neb. 129, 36 N. W.2d 612, 618, 619.

Defendants' second point, the contributory negligence of Abel,² must be determined under South Dakota's comparative negligence statute S.D.C.Supp. 47.0304-1 (1952), which provides:

"In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence of the defendant was gross in comparison but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff; and all questions of negligence and contributory negligence shall be for the jury."

The South Dakota courts have recognized that this statute was...