McKeon v. Delbridge

• Decision Date: 15 October 1929
• Docket Number: 6625
• Citation: 226 N.W. 947,55 S.D. 579
• Parties: JAMES McKEON, Respondent, v. C. J. DELBRIDGE, Appellant.
• Court: South Dakota Supreme Court

55 S.D. 579

226 N.W. 947

JAMES McKEON, Respondent, v. C. J. DELBRIDGE,

Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. John T. Medin, Judge

#6625—Affirmed

Ray E. Dougherty, Sioux Falls, SD

Attorney for Appellant.

Mundt & Mundt, Sioux Falls, SD

Attorney for Respondent.

Opinion Filed Oct 15, 1929

MISER, C.

This appeal is from an order overruling a demurrer to respondent’s complaint. The demurrer specified that the complaint did not state facts sufficient to constitute a cause of action. The complaint alleged that, on February 14, 1926, at 1:15 a. m., while the plaintiff was crossing Phillips avenue in the city of Sioux Falls, between Tenth and Eleventh streets, the defendant struck with his automobile and ran over plaintiff, thereby causing great bodily injury; that the injuries were directly caused by the negligence and carelessness of defendant in driving the car at an excessive rate of speed, to wit, 40 miles an hour, in failing to give any warning of his approach, in failing to have the lights on his automobile lit, and in being on the wrong side of the street traveling south, to wit, on the east side of the street; that the injuries were sustained through no fault or negligence on the part of the plaintiff, but wholly on account of the carelessness and negligence of the defendant. The complaint further alleges the particular physical injuries received, and asks damages therefor.

Appellant contends that the complaint admits an act on the part of the plaintiff commonly known as “jay-walking”; that this, as a matter of common knowledge and subject to judicial cognizance, is an act of negligence, and especially so in this case, because within the jurisdiction of the court trying the case was the city of Sioux Falls; that, therefore, the court should have taken judicial notice of the fact that Phillips avenue was the busiest street in the largest city in the state, and that Phillips avenue, between Tenth and Eleventh streets, was in the heart of the business district of the city and one of the busiest places on Phillips avenue. Although appellant cites many authorities on the proposition that a court cannot blind its eyes to the knowledge of a fact which is notorious throughout its jurisdiction, appellant cites no authority to support his contention that one “jay-walking” at 1:15 in the morning, at such a place as Phillips avenue, between Tenth and Eleventh streets, in Sioux Falls, is per se contributorily negligent, if run down by an automobile going 40 miles an hour on the wrong side of the street.

Appellant points to Culhane v. Waterhouse, 886, as a parallel case, and as furnishing authority for holding that the act of plaintiff in so crossing the street should be declared to be an act of contributory negligence as a matter of law. No useful purpose would be served by pointing out the many points of difference between the facts in this case, admitted by demurrer, and the facts of the case cited, as they appeared on motion for directed verdict at the close of plaintiff’s case. Appellant’s contention is stated thus:

“Certainly, if standing in a ditch at the side of a road is held to be an act of negligence as a matter of law, cutting across the principal street in the middle of the block of the largest city in the state should, without a doubt, be declared to be an act of contributory negligence as a matter of law.”

But this court did not hold, in Culhane v. Waterhouse, that merely standing in a ditch at the side of a road was negligence as matter of law. That opinion will disclose, among others, the following additional facts: The ditch was 16 feet wide, and sloped gradually from a graveled highway 24 feet wide. From the bottom of the ditch to the top of...