Mills v. Armstrong

• Decision Date: 22 March 1944
• Docket Number: 8668.
• Citation: 13 N.W.2d 726,70 S.D. 1
• Parties: MILLS et al. v. ARMSTRONG.
• Court: South Dakota Supreme Court

13 N.W.2d 726

70 S.D. 1

MILLS et al. v. ARMSTRONG.

No. 8668.

Supreme Court of South Dakota

March 22, 1944

Davenport, Evans & Hurwitz, of Sioux Falls, for appellant.

Bailey Voorhees, Woods & Fuller, of Sioux Falls, for respondents.

RUDOLPH Judge.

This action involves an automobile collision at intersecting streets in the city of Sioux Falls. Plaintiffs are the owners of motor buses operated in Sioux Falls. The collision occurred between one of plaintiffs' motor buses and a car operated by the defendant. Plaintiffs sought to recover damages to the motor bus resulting from the collision and the defendant filed a counterclaim wherein he sought to recover from the plaintiffs the damages which he sustained. The jury returned a verdict in favor of the defendant upon his counterclaim. Upon plaintiffs' motion for judgment notwithstanding the verdict, the court set aside the verdict of the jury and entered judgment dismissing both the complaint of the plaintiffs and the counterclaim of the defendant. The defendant has appealed from this judgment.

The jury having returned a verdict in favor of the defendant, the facts must be reviewed in the light most favorable to that verdict. Under the motion for judgment notwithstanding the verdict, only the question of the contributory negligence of the defendant is at issue in this appeal. On this issue the facts most favorable to the defendant disclose the following:

The accident occurred about 10 A. M. on Sunday, March 14, 1943. The day was clear and the pavement upon which the accident occurred was dry. Plaintiffs' bus was being driven north on Prairie Avenue, which is a paved street thirty-eight feet two inches wide from curb to curb. Defendant was driving eastward on Second Street toward Prairie Avenue. The view at the intersection was unobstructed. As defendant approached Prairie Avenue he was driving on his right hand side of Second Street. At a point twenty feet before reaching Prairie Avenue defendant looked to his right and observed the bus approaching on Prairie Avenue at a point one hundred fifty feet south of the intersection. Defendant testified that at this point he was driving his car approximately twenty miles per hour but that he was slowing down to enter the intersection. Defendant testified that, after seeing the bus at this point approximately one hundred fifty feet south of the intersection when he was only twenty feet from the intersection, he thought he had ample time to cross the intersection ahead of the bus. As defendant proceeded on and into the intersection he looked to his left and observed no cars in close proximity coming from that direction; he then looked again for the bus which he had formerly seen and observed the bus approximately forty feet away coming toward him at a speed which he estimated approximately thirty-five miles per hour. By this time defendant had proceeded into the intersection to the extent that the front wheels of his car reached "nearly to the center." The collision followed at a point when the rear wheels of defendant's car had just crossed the center line of the intersection. Defendant's car was struck on the right side by the left front end of the bus. Following the collision the bus went in a northeast direction across the intersection, struck and broke an electric light pole, eleven inches in diameter, at the northeast corner of the intersection, then continued on approximately fifteen feet and struck and broke a water hydrant. After being struck the defendant's car veered to the left and was stopped at a point somewhat north of the bus.

Plaintiffs contend that certain decisions of this court are controlling in support of the judgment entered by the trial court. Plaintiffs first cite and principally rely upon the case of Jamieson v. Gerth, 61 S.D. 514, 249 N.W. 921. In that case plaintiff testified that he observed the defendant's car when it was three-fourths of a block away from the intersection. It appeared from the relative speeds of plaintiff's motor cycle and defendant's car that these two vehicles were approaching the intersection at approximately the same time. However, after observing the defendant's car the plaintiff did not again look for the car but looked in the opposite direction, observed no cars were coming and then failed to again observe defendant's car until the instant of the collision. We think it clear that this Gerth case is not controlling under the present facts which disclose that defendant at a point twenty feet from the intersection observed the bus one hundred fifty feet from the intersection. At the time of this observation, the bus was more than seven times as far from the intersection as was the car of defendant. Defendant continued on and looked to the north. If this observation to the north took only a second of time, defendant would have traveled approximately thirty feet at twenty miles per hour, or ten feet into the intersection. He testified that before reaching the center of the intersection or when his front wheels were approximately at the center that he again looked for the bus and discovered it bearing down upon him at a distance of approximately forty feet. Obviously, this testimony differentiates this case from the Gerth case and we are of the opinion that case is not controlling. The plaintiffs also cite and rely upon the cases of Anderson v. Huntwork et al., 66 S.D. 411, 284 N.W. 775 and Stacey v. Patzloff, 67 S.D. 503...