Myers v. Quenzer

• Citation: 110 N.W.2d 840,79 S.D. 248
• Decision Date: 05 October 1961
• Docket Number: Nos. 9905,9906,s. 9905
• Parties: Vernon H. MYERS, Plaintiff and Respondent, v. Reuben QUENZER, Vincent Schmaltz and Tony Schmaltz, Defendants and Appellants. Florence MYERS, Plaintiff and Respondent, v. Reuben QUENZER, Vincent Schmaltz and Tony Schmaltz, Defendants and Appellants.
• Court: Supreme Court of South Dakota

Page 840

110 N.W.2d 840

79 S.D. 248

Vernon H. MYERS, Plaintiff and Respondent, v. Reuben QUENZER, Vincent Schmaltz and Tony Schmaltz,

Defendants and Appellants.

Florence MYERS, Plaintiff and Respondent, v. Reuben QUENZER, Vincent Schmaltz and Tony Schmaltz,

Defendants and Appellants.

Nos. 9905, 9906.

Supreme Court of South Dakota.

Oct. 5, 1961.

Bangs, McCullen, Butler & Foye, Rapid City, for defendants and appellants.

Hanley, Costello & Porter, Rapid City, for plaintiffs and respondents.

RENTTO, Judge.

The plaintiffs in these automobile collision cases are husband and wife. In his action Mr. Myers seeks recovery for injuries to his person and the car. Mrs. Myers claims damages for injuries to her person. The cases were consolidated for trial. At the conclusion of such proceedings, during which the jury and the trial judge viewed the scene of the accident, the trial court directed verdicts for both plaintiffs and submitted to the jury only the question of damages. Mr. Myers was awarded $650 and Mrs. Myers $7,500. Judgments were entered in these amounts from which the defendants appeal urging that the trial court erred in taking from the jury the question of their liability.

The accident happened about four o'clock in the afternoon of June 26, 1959 on U. S. numbered Highway 85, approximately eight miles north of Buffalo, South Dakota, on the south side of a hill or rise in the road. At that place the highway has a blacktop surface about 25 feet in width and runs north and south with a posted speed limit of 60 miles per hour. The grade of the approach to this rise in the road from either the north or the south is not in evidence. However, it does appear that on the north approach to this hill there is a no-passing zone marked by a yellow line on the highway prohibiting passing by southbound traffic. On the south side of the hill there is a similar line against passing by vehicles going north. Between the ends of these lines at the apex of the rise there is a gap of about 75 feet in the road that does not have a no-passing line. This is the top of the hill. According to the patrolman it is a flat area that slopes gently to the north. He said the south edge of this area where the no-passing line on the south side begins, is the crest or highest point of the hill and at its north edge the hill declines more sharply to the north. Near the southerly edge of the area on top a gravel road leads off to the west.

The plaintiffs, residents of Buffalo, were returning home from Bowman, North Dakota. On their return trip Mr. Myers drove their car, a 1953 Plymouth, to a point south of Ludlow, South Dakota, where Mrs. Myers took over the driving. Since they were proceeding south her lane of travel was to the west side of the highway. On the south side of the hill their car was run into from the rear by the Schmaltz Bros. 1958 Ford pickup, driven by their employee, Quenzer. One of the Schmaltz brothers and two of their employees who had been working on a construction job in North Dakota were in the pickup on their way to Belle Fourche. The left front of the pickup struck the right side of the back bumper of the Myers' car causing it to swing around on the highway and skid into the other or east lane where it stopped near the edge of the pavement headed north. The pickup came to rest in the ditch to the west of the highway lying on its left side.

Mrs. Myers testified that as they approached the hill the weather was stormy. On the south side of the hill it was so severe that it affected her forward visibility. It was cloudy with some hail and rain and the wind blowing dust and weeds in the air. She stopped the car about 300 feet south of the crest of the hill and then backed up some 50 to 70 feet to get off the road, but realizing that she was getting into a position of danger she stopped and started forward. After she had gone ahead about 30 feet barely moving at a speed of about five miles per hour the pickup collided with their car. She had stopped backing up and was moving ahead when she saw the pickup come over the crest of the hill. To her 'it looked like a streak'. She said the east lane of the highway was clear.

Before the accident she saw a car and a semitrailer approaching from the south. The car had disappeared over the hill before she noticed the pickup. She saw the semi before the accident at which time it was from one-quarter to one-half mile south of the point of impact. The headlights of their car were on as were those on the northbound car and the semi, but the headlights of the pickup were not. At the time of the collision their car was near the edge of the road to her right. The testimony of Mr. Myers was generally to the same effect. There is no intimation in the record that the driver of the pickup saw or should have observed them on the road ahead of him before reaching the area in question.

The motor patrol officer arrived at the scene about 7 p. m. that evening. He was called as a witness by the plaintiffs and testified that the point of impact was about 106 feet south of the crest of the hill near the west edge of the blacktop. As to skid marks, he observed those made by the Plymouth as it skidded across the road, but no others. At later dates he took pictures of the scene which he testified were taken with the camera four feet and eleven inches above the road. He claimed that this height would be about the eye level of Quenzer as he drove the pickup. In some of these he placed his patrol car, the top of which he said is 5 1/2"' lower than the top of a 1953 Plymouth, at the point of impact and photographed it from a couple points north of the accident scene. In one taken 285 feet north of the point of impact the top of the patrol car was visible but in connection with this picture he stated that a car down the road 75 feet from the point of impact backing north wouldn't be visible in the picture. In another view taken at a distance of 205 feet the patrol car was visible. In translating these distances into time he testified that a car traveling 60 miles an hour would go a distance of 88 feet in a second,

The testimony for the defendant was that at the time of the accident and for a short time before there were some dark clouds moving over the area and the weather was stormy...