Musilek v. Stober, 16040
| Decision Date | 12 October 1988 |
| Docket Number | No. 16040,16040 |
| Parties | Robert P. MUSILEK, Plaintiff and Appellant, v. Allen Robert STOBER, Defendant and Appellee. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Michael Abourezk of Johnson, Eklund & Davis, Gregory, for plaintiff and appellant.
J.M. Grossenburg of Day & Grossenburg, Winner, for defendant and appellee.
This case arose out of a car accident at the intersection of a blacktop county highway and a gravel township road. The scene of the accident was an uncontrolled intersection as there were no stop signs at any of the four corners. Evidence established that vandals had removed the stop signs. The case was tried to the circuit court, sitting without a jury. After ruling against Robert Musilek (plaintiff) from the bench, the trial court entered findings of fact and conclusions of law dismissing the complaint, even though negligence on the part of both parties was found. Plaintiff now appeals from the trial court's judgment dismissing his negligence claim against Allen Stober (defendant). We reverse.
On August 5, 1985, plaintiff and defendant were involved in a car accident in Tripp County. Plaintiff was driving north on a blacktop county road which connects highways 18 and 44 east of Winner. Defendant was driving west on a gravel township road which intersects the blacktop road. The intersection of the two roads was uncontrolled by any traffic signs at the time of the accident. According to the county highway superintendent, there had been stop signs at this intersection in the past which required traffic on the gravel road to stop, but the signs were missing due to vandalism.
The parties approached the intersection almost simultaneously; defendant was on plaintiff's right and entered the intersection ahead of plaintiff. Defendant was traveling ten to fifteen miles per hour, while plaintiff was traveling thirty to forty-five miles per hour. Defendant testified that he looked south but never saw plaintiff's vehicle. Plaintiff observed defendant's vehicle while plaintiff was still 200 yards from the intersection. Even so, plaintiff did not slow down as he entered the intersection. Plaintiff apparently assumed that, because he was on a through highway, defendant's vehicle would come to a stop before entering or crossing the highway. Plaintiff noticed defendant slow down perceptibly, as if defendant would stop. The front of plaintiff's vehicle struck the left rear of defendant's vehicle in the middle of the northbound lane of the blacktop road.
Plaintiff filed suit, alleging that defendant was negligent due to a failure to keep a proper lookout, failure to yield the right-of-way, and failure to stop at the intersection of a county road and township road. In its oral findings, the trial court ruled that the fact the north-south road was blacktopped was "of no probative value in this case." In its written findings, the court ruled that defendant was negligent for failure to keep a proper lookout and plaintiff was negligent for failure to yield the right-of-way. The trial court concluded that plaintiff's contributory negligence, being more than slight in comparison with that of defendant, precluded plaintiff's recovery of damages.
Is violation of the right-of-way statute (SDCL 32-26-13) excused by the fact that the violator was on a blacktop highway while the vehicle approaching from the right was on a gravel road?
SDCL 32-26-13 states: "When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right...." Plaintiff argues that since he was on a blacktop "through highway," he did not have to yield the right-of-way to a vehicle on an inferior gravel road. Therefore, according to plaintiff, the trial court erred in finding him contributorily negligent.
Plaintiff is correct in stating that a motorist on a through highway has a right to assume that cross traffic will come to a stop before entering or crossing such a highway. Roth v. Jelden, 80 S.D. 40, 118 N.W.2d 20 (1962); Grosz v. Groth, 78 S.D. 379, 102 N.W.2d 834 (1960). The question then becomes whether this particular blacktop road was a "through highway."
In South Dakota, state or local authorities designate through highways "by erecting at the entrances thereto from intersecting highways stop or yield signs." SDCL 32-29-2. Here, the county intended to make the blacktop road a through highway since stop signs had been erected along the road to control traffic from other intersecting roads. The county highway superintendent testified that there had been a stop sign at the intersection where the accident occurred, but it was missing due to vandalism. The superintendent did not know how long the stop sign had been down. He also testified:
(1) The blacktop highway traveled by plaintiff was built with federal funds;
(2) Federal specifications require placement of stop signs at intersections;
(3) The county superintendent himself was personally knowledgeable that stop signs were placed at this intersection on the east-west gravel road approaches;
(4) The county superintendent himself ordered the placement of these signs;
(5) The county superintendent personally saw the signs; and
(6) Because of vandalism, the signs were replaced on six or eight different occasions by the County Highway Department.
Though the trial court received this evidence, it later ruled the evidence was totally irrelevant. It held that the evidentiary value of traveling on a blacktop highway or an intersecting road "is of no probative value." We cannot agree. It is of critical importance that the county highway was not only blacktopped, but was a through highway, as designated by statute. SDCL 32-29-2. Under settled South Dakota law, the driver on the through highway has the right-of-way. Roth, supra; Grosz, supra. Therefore, the trial court erred in ruling that this evidence was irrelevant.
We further note that plaintiff's uncontroverted testimony is that defendant slowed his vehicle, as defendant approached the intersection, to a speed of ten to fifteen miles per hour, thus giving plaintiff cause to believe that he, defendant, was coming to a stop. It appears the trial court did not take this testimony into consideration.
Moreover, we earlier...
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