McKiver v. Hamm Brewing Co.
| Decision Date | 16 April 1941 |
| Docket Number | 8396 |
| Citation | 297 N.W. 445,67 S.D. 613 |
| Parties | JULIA McKIVER, Respondent, v. THEO. HAMM BREWING CO., et al., Appellants. |
| Court | South Dakota Supreme Court |
This is an action for the wrongful death of Lyle McKiver who was killed when a Ford pickup truck which he was driving was struck at a highway intersection by a Chevrolet coach owned by the Theo. Hamm Brewing Company and driven by Walter Rupp. There was a verdict for plaintiff administratrix, on which judgment was entered. Defendants appeal, assigning errors upon the denial of motions for directed verdict and judgment n. o. v. and upon refusal of the court to give certain requested instructions.
The accident occurred at about 11:30 o’clock in the forenoon of June 14, 1939, at an intersection about 12 miles east of Aberdeen where US Highway 12, an east and west oiled surfaced state trunk highway, is crossed at right angles by Deane Highway, a non-arterial graveled road. Immediately before the accident, Lyle McKiver was driving the truck in a southerly direction on Deane Highway. Walter Rupp was driving the Chevrolet coach in an easterly direction on US Highway 12. The only eye witness who testified was the defendant Walter Rupp. He testified that as he approached the intersection traveling at approximately 50 miles per hour he observed the truck approaching from the north at a distance which he estimated to be 400 or 500 feet from the intersection; that the estimated distance of his car from the intersection when he first saw the truck was 600 or 700 feet; that he assumed that plaintiff’s intestate would stop before entering the intersection; and that he did not again observe the truck until it was “just entering the black top.” This witness further testified that he couldn’t state how fast the McKiver truck was approaching the intersection when he observed it, but that “it was going fairly fast” and that he knew that “it was going over 20 miles an hour.”
A deputy sheriff who was on the scene shortly after the accident testified as to marks on the highway and location of the vehicles. From this testimony as to skid marks supplemented by a photograph of marks on the highway, it appears that the point of impact was in the southeast corner of the intersection. The truck was struck on the right side in front of the cab. Following the collision, the truck was in the ditch near the southeast corner of the intersection, a distance of 39 feet from the point of impact, and the Chevrolet came to a stop in the field to the south of the truck, a distance of 71 feet from the point of impact.
It is uncontroverted that decedent having resided continuously during his lifetime in the community and having frequently passed over this highway was familiar with the intersection, that the day was clear, and that he had unobstructed view of approaching traffic. Defendants offered in evidence a plat prepared by a qualified engineer. Elevations along each highway at intervals of 100 feet are shown. US Highway 12 for a distance of 1,320 feet to the west of the intersection and Deane Highway for a distance of 900 feet to the north of the intersection are almost level. Within the triangular area formed by drawing a line from the point 1,320 feet west of the intersection to the point 900 feet north of the intersection there are no elevations higher than the surface of the two highways. This tract of land was planted to corn which was not more than knee high at the time of the accident and there were no buildings or other objects obstructing a view of either highway.
It is admitted that US Highway 12 had been regularly designated as a state trunk highway and that there were stop signs on Deane Highway giving notice of the existence of an intersection with a trunk highway.
It appears from the evidence that one witness observed defendant Rupp driving eastward toward the intersection, and it may be reasonably inferred from the testimony of this witness that defendant was driving in excess of his estimate of 50 miles per hour.
SDC 44.0321, § 22, Chapter 251, Laws 1929, as originally enacted and in effect at the time of the accident provided that whenever a through highway was designated “by erecting at the entrances thereto from intersecting highways, signs notifying drivers of vehicles to come to a full stop before entering ... such designated highways,” it was “unlawful for the driver of any vehicle to fail to stop in obedience thereto.” The purpose of this statute is apparent. The statute commands the duty to stop to enable the driver entering from an intersecting highway to make observations and to ascertain that the way is clear before he proceeds to enter or cross the through highway. Plaintiff’s intestate would not have performed his duty merely by stopping. It was his duty to stop and to make before and after entering the intersection such observations as due care under the circumstances required. See Jamieson v. Gerth, 61 SD 514, 249 NW 921; Anderson v. Huntwork, 66 SD 411, 284 NW 775. Though the statute recognizes a superior right in the driver on the through highway, the driver on such highway is not relieved from the duty of exercising due care not to injure others approaching on intersecting highways. Jamieson v. Gerth, supra. We may assume without deciding that there was sufficient evidence to sustain a finding by the jury that defendant Rupp was negligent in approaching the intersection at an excessive speed, but if decedent...
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