Limmer v. Westegaard
| Decision Date | 17 February 1977 |
| Docket Number | No. 11620,11620 |
| Citation | 251 N.W.2d 676 |
| Parties | Eugene R. LIMMER, Plaintiff and Respondent, v. Daniel B. WESTEGAARD, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
McCann, Martin & Mickelson, George S. Mickelson, Brookings, for plaintiff and respondent.
Willy, Pruitt, Matthews & Jorgensen, Acie W. Matthews, Sioux Falls, for defendant and appellant.
PORTER, Justice (on reassignment).
If plaintiff's jury verdict is sustainable on another theory, does jury misdirection by the trial court as to the law on vehicular right-of-way require reversal in this street intersection auto collision case? For the reasons stated, we conclude the jury verdict must stand.
SDCL 32-26-13 1 applies here as does SDCL 32-14-3. 2 The trial court received in evidence section 34-107 of the Revised Ordinances of the City of Brookings 3 (plaintiff's Exhibit 8), and submitted the ordinance provisions to the jury by Instructions No. 13 4 and 14. 5
Defendant objected to the exhibit and Instructions No. 13 and No. 14 at trial essentially on the ground urged here; that SDCL 32-14-3 renders subsection (a) of the ordinance invalid because the subsection conflicts with SDCL 32-26-13. We assume, without deciding, that the defendant (Appellant) is correct, and go on to consider whether the erroneous inclusion of subsection (a) of the ordinance as subparagraph (a) of Instruction No. 13 requires reversal.
Plaintiff's verdict may not stand if it can be supported only on the theory that he fully entered the intersection before defendant entered. Construing SDCL 32-26-13 this court said that it is without legal significance which car actually entered the intersection first, if it appears that the cars approached or entered the intersection at approximately the same time. Smith v. Aspaas, 71 S.D. 111, 21 N.W.2d 878 (1964).
If plaintiff's verdict is sustainable on a theory other than right-of-way (as we discuss, infra ) we need not now consider whether plaintiff had the right-of-way, and we assume, without deciding, that he did not.
Defendant's claim of right-of-way is asserted as an affirmative defense in his answer to the complaint. In assignment of error 4 he stated that " * * * the true test is whether or not the two vehicles approach the intersection at approximately the same time * * *." Instruction No. 13, subparagraph (b) meets this test, and in his brief on appeal defendant's argument against Instruction No. 13 concerns only subparagraph (a). We may not presume that the jury decided the right-of-way issue against defendant under subparagraph (a), rather than under subparagraph (b), of Instruction No. 13. Instead we next consider whether the evidence at trial presented a jury issue on the question of whether the two cars approached the intersection at approximately the same time. 6
Plaintiff drove west on 5th Street and defendant south on 12th Avenue, in Brookings, on September 24, 1973 at about 1:30 p. m. Both streets are thirty feet wide, curb to curb (Exhibit 4). Traffic at the intersection is not controlled by any stop, yield or warning signs. The cars collided in the northwest quadrant of the intersection of the two streets when the front end of defendant's car struck the area of the right rear wheel of plaintiff's car. The front end of plaintiff's car had already passed beyond the intersection 7 at impact.
Plaintiff, driving on the right side of 5th Street at fifteen miles per hour or less, looked both north and south on 12th Avenue as he approached the intersection but saw no traffic. He was able to see both north and south "pretty near to the end of the block." He did not see defendant's car before the collision.
Defendant, driving south, stopped for a stop sign one block north of the intersection. He then proceeded south on the right side of 12th Avenue at a speed of twenty miles per hour until the intersection collision. At the time defendant approached the intersection there was a parked car facing north on the east side of 12th Avenue, approximately one car length north of the intersection. 8 When defendant first saw plaintiff's car ("a fraction of a second before impact") the front end of the car was directly in front of defendant, and defendant's car was about at the crosswalk immediately north of the intersection.
The streets were "very wet" from an earlier rain. The investigating officer found no skid marks.
The issue of whether defendant was or was not approaching the intersection at approximately the same time as plaintiff was, under the evidence here, for the jury. "To show * * * prejudicial error an appellant must establish affirmatively from the record that under the evidence the jury might and probably would have returned a different verdict if the alleged error had not occurred." Dwyer v. Christensen, 77 S.D. 381, 385, 92 N.W.2d 199, 202 (1958). The verdict against defendant on the issue of whether he had the right-of-way is legally sustainable under Instruction No. 13, subparagraph (b), but not under subparagraph (a). We are unable to say upon this record that appellant has met the Dwyer test, and may not therefore characterize as prejudicial the erroneous submission of subparagraph (a) of Instruction No. 13 to the jury.
The verdict of the jury can be sustained on a theory which premises that neither party had the right-of-way. At defendant's request the court gave Instruction No. 12(a). 9 Defendant's negligence can properly rest upon a breach of his duty under Instruction No. 12(a). Without an affirmative showing in the record to the contrary, we construe the jury verdict as rendered upon the properly submitted legal theory of negligence, rather than upon one improperly submitted. Allen v. McClain, 75 S.D. 520, 529, 69 N.W.2d 390, 395 (1955).
Should this court reverse and remand for dismissal because plaintiff's conduct demonstrated, as a matter of law, contributory negligence more than slight? SDCL 20-9-2. 10 Defendant argues that we should do so because his motion for directed verdict on that ground, at the close of plaintiff's case and at the close of the evidence, was denied. Plaintiff's contributory negligence was his (1) failure to yield the right-of-way as required by SDCL 32-26-13, and his (2) failure to maintain a proper lookout for traffic before the collision, according to defendant's motion below, and his assigned error and argument here.
Concerning defendant's contention (1), we have already concluded, supra, that the evidence made a jury issue as to whether defendant was or was not approaching the intersection at approximately the same time as plaintiff, which issue was resolved against defendant by the jury verdict. Accordingly we treat the case as one where neither driver had a statutory right-of-way under SDCL 32-26-13. 11
Plaintiff did not see defendant before the collision. He looked both ways on 12th Avenue before entering the intersection, but did not look again after entering the intersection. As point (2) of his motion
defendant contended that plaintiff's failure to maintain a proper lookout required grant of the motion. We believe the rule approved in Yost v. Yost, 81 S.D. 588, 592, 139 N.W.2d 238, 240 (1965) applies here.
See also Whitaker v. Keogh, 144 Neb. 790, 14 N.W.2d 596 (1944).
Defendant had no right-of-way for the reasons we have indicated, and the intersection was thus not "protected" at the time of plaintiff's approach. There is no evidence to show where defendant was when plaintiff approached the intersection, and none to show where he was when plaintiff entered the intersection. There were no eye witnesses or skid marks and defendant did not see plaintiff until a "fraction of a second" before impact, at which time defendant had not entered the intersection and part of plaintiff's car was already through the intersection. The evidence here does not show "without dispute" that defendant's car "was located in a favored position and within the radius of danger" while plaintiff was approaching the intersection. The issue of plaintiff's contributory negligence here was properly for the jury.
We find an additional reason to deny appellant's request that we remand the case for dismissal because the trial court should have granted the motion for directed verdict. The trial court submitted the action to the jury subject to a later determination of the legal questions raised by the motion. SDCL 15-6-50(b). 12 The "later determination" is to be made after the verdict, at which time the trial court passes upon the legal questions raised by the motion, in this instance, whether defendant should have judgment dismissing the complaint because plaintiff was contributorily negligent, as a matter of law. The trial court must pass upon the legal questions raised in the motion for directed verdict, after verdict, and before appellate review, to give effect to one of the reasons for adoption of FRCP 50(b) (). The reasons in this regard are discussed by the United States Supreme Court in the cases of Cone v. West Virginia Pulp & Paper Co. and Johnson v. New York, N.H. & H.R.R. 13 Even though, as here, the motion for directed verdict was denied before verdict, under 15-6-50(b) the trial court is deemed to have reserved decision on the motion until after reception of the verdict. Here the trial
court has not yet finally ruled on the motion because it may do so only in response to a timely motion for judgment notwithstanding the verdict...
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