Kriens v. McMillan

• Decision Date: 15 August 1919
• Docket Number: 4532. [*]
• Citation: 173 N.W. 731,42 S.D. 285
• Parties: KRIENS v. McMILLAN.
• Court: South Dakota Supreme Court

173 N.W. 731

42 S.D. 285

KRIENS v. McMILLAN.

No. 4532. ^[*]

Supreme Court of South Dakota

August 15, 1919

Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.

Action by Marvin Kriens, by H. Kriens, his guardian ad litem against C. N. McMillan. Judgment for defendant, and plaintiff appeals. Reversed.

Berdahl Waggoner & Stordahl, of Sioux Falls, for appellant.

Boyce Warren & Fairbank, of Sioux Falls, for respondent.

GATES J.

Action for damages caused by a collision between plaintiff's bicycle and defendant's automobile. Verdict and judgment for defendant. Plaintiff appeals.

The evidence tended to show the following state of facts: Defendant was driving an auto east on the south side of Twenty-Second street in the city of Sioux Falls, about 7:30 p. m., June 7, 1918. In the seat with him was Mr. Frazier; in the back seat, Messrs. Teigen and Munson. The car was a super-six Hudson weighing 3,200 pounds, rated at 40 horse power. Ahead of them were three boys on bicycles going i nthe same direction. The plaintiff, 12 years of age, in the lead. A street car track runs along the center of Twenty-Second street. Glendale avenue is a street running north from Twenty-Second street and ending at Twenty-Second street. Plaintiff's evidence tends to show that he was turning in a northeasterly direction into Glendale avenue along a well-traveled track leading to that avenue, and was unaware of the approach of defendant's car until just a moment before he was struck and injured by it. The place of injury was sparsely settled and two miles from the center of town. Defendant testified that when he was at the distance of a block west of the boys he blew the horn and that they lined up on the south side of the road; that there was a hill between this place and where the accident occurred; that there was a trolley pole on the south side of the street car track 32 feet west of the west curb line of Glendale avenue, and that the collision occurred 24 feet east of the pole, or 8 feet west of the west curb line. He also testified that the collision occurred 32 feet west of the west street line of Glendale avenue. In regard to the accident he testified as follows:

"When I got not quite to the first boy, this Kriens boy turned out across the street. I saw I was too close to go straight on without hitting him. I also knew if I hit him and ran over him I would kill him. I could not turn to the right on account of the other two boys. I could not immediately turn to the left because I would run into that pole. The only way to save the boy was to turn the car to the north and left, which I did. As I turned and reached the street car track I struck the hind wheel of the boy's bicycle. Then in an instant the car stopped and turned over. I was unconscious the rest of the time until after I got into the hospital."

Mr. Teigen was thrown over plaintiff and 30 feet beyond, but was not seriously injured. Defendant was laid up for 4 weeks. Mr. Munson was confined to the hospital nearly 4 weeks. Mr. Frazier died from his injuries 10 days afterwards.

Defendant concedes that at the time he applied the brake he was going at the rate of 23 miles per hour. Mr. Teigen said 25 miles. Mr. Munson said from 23 to 25 miles. The evidence of plaintiff tended to show a considerably higher speed. The plaintiff was going about as fast as a boy can run; the defendant said about 12 miles an hour. The trial court instructed the jury as follows:

"Gentlemen of the jury, in this action the lad, Marvin Kriens, by his guardian ad litem brings suit against the defendant, C. N. McMillan, claiming to recover for personal injuries concerning which testimony has been submitted before you. The mere fact that the boy was injured by an automobile does not entitle him to recover. He can only recover in case the jury believe from all the testimony that that collision resulting in some injury to him, was caused by negligent conduct on the part of the defendant in driving his automobile, and that the plaintiff himself was not guilty of any contributory negligence. A person driving an automobile in the streets is under obligation to exercise the care of an ordinarily prudent person in like circumstances and conditions. If he exercised the same care and prudence of an ordinarily prudent man in running that automobile, and notwithstanding his care some injury resulted, he is not responsible, and a verdict should not be rendered against him. Therefore, one of the principal questions, and really the principal question, for you to determine is whether, under all the facts and circumstances of the case, the defendant was exercising the care a reasonably prudent man should exercise, under all the circumstances, in the driving of this automobile at that time. The traffic ordinance of the city of Sioux Falls provides:

'It shall be unlawful for any driver to drive any motor vehicle upon the public streets, alleys, or public grounds in the city of Sioux Falls at a greater rate of speed than fifteen miles per hour, and in turning corners from one street to another street or crossing intersections, the rate of speed shall not exceed eight miles per hour.'

Further: 'Any horse, vehicle, or motor vehicle overtaking another shall pass to the left and shall not pull over to the right until entirely clear of the overtaken horse, vehicle, or motor vehicle; but as soon as entirely clear, the overtaking horse, vehicle, or motor vehicle shall pull over as close to the right-hand curb as practicable.'

Further: 'A horse, vehicle, or motor vehicle turning into a street to the right shall turn the corner as near the right-hand curb as practicable. A horse, vehicle, or motor vehicle turning into a street to the left shall, before turning, pass around the center of the intersection of the two streets. The driver of a vehicle about to turn shall give timely signal by hand or whip or by some other unmistakable manner

to indicate the direction of the turn.'

Further: 'It shall be unlawful for any horse, vehicle, or motor vehicle to be driven, operated, or allowed to stand on the left-hand side of the center of the street, and such horse, vehicle, or motor vehicle shall keep over as near as practicable to the right-hand curb, so as to leave the center of the street free and open for overtaking traffic. The slower the speed of the traffic, the closer to the right-hand curb shall it move.'

Further: 'It shall be unlawful for any horse, vehicle, or motor vehicle to cross over from the right-hand side of the street to the left-hand side, except upon the intersection of said street with another street, and in so turning such horse, vehicle, or motor vehicle shall pass around the center of said intersection.'

This ordinance applies with equal force to the defendant in this case, who was driving the automobile and to the plaintiff, who was riding his bicycle, upon the same street, and the driver of an automobile is no more responsible

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