Myron v. Coil
| Decision Date | 22 June 1966 |
| Docket Number | No. 10237,10237 |
| Parties | Odell MYRON, Special Administrator of the Estate of Bradford Myron, Deceased, Plaintiff and Appellant, v. Linda J. COIL, Defendant and Respondent. |
| Court | South Dakota Supreme Court |
Bogue & Weeks, Vermillion, for plaintiff and appellant.
Woods, Fuller, Schultz & Smith, H. L. Fuller, Sioux Falls, for defendant and respondent.
At about 11:30 a.m. on September 30, 1962, plaintiff's decedent, Bradford Myron a high school junior, 16 years of age, mounted his motor scooter in the parking lot of the Vermillion, South Dakota, U.S. Post Office and drove it southward to a private driveway which connected the parking lot with Kidder Street, a concrete-paved public street which runs east and west to the south of the post office.
At about this time, the defendant, Linda J. Coil, a 16-year old school girl, entered her father's 1961 Pontiac, which had been parked on the north side of Kidder Street east of the post office, backed out from the curb and, accompanied by her sister, Muriel, drove west on the north side of Kidder Street at approximately 15 miles per hour.
The evidence discloses that the car proceeded without incident directly to its fatal collision with the Myron vehicle. Decedent is shown to have, in the meantime, driven his scooter across the sidewalk which traverses the driveway, greeting a friend walking on the sidewalk to the west of the driveway and then waving to the other friends who were walking to the east of the driveway, before driving the few remaining feet to Kidder Street where, the record indicates, the visibility to the east was somewhat hampered by the presence of cars, parked diagonally at the curb.
Decedent had proceeded only a few feet on Kidder Street, testimony indicating that he 'slanted' to his left and then turned the front wheel of the scooter to the right just before impact with the car. Defendant turned the steering wheel of the car she was driving 'slightly', when she saw decedent coming out onto Kidder Street. The impact came 'a second later' 'or a little less' and she applied her brakes after the impact. The scooter-car collision caused injuries to plaintiff's decedent which resulted in his death.
Trial to a jury in the Circuit Court of the First Circuit resulted in a verdict for defendant, returned on October 16, 1964. This cause is presently before this court on appeal from the judgment entered on such verdict.
The principal grounds for appeal are three in number, addressed (1) to the refusal of the trial court to submit the issue of 'last clear chance' to the jury by instruction, (2) to rulings made in the course of the trial in respect of testimony proffered and (3) to the refusal of the trial court to permit reopening of the trial at the behest of plaintiff, after plaintiff had rested but before the instructions were settled, to adduce testimony to show how far an automobile such as defendant's would travel after brake application.
Appellant's position upon the matter of 'last clear chance' is that the physical facts shown are such as to justify submission of the doctrine to the jury. Review of the substantive evidence in the light most favorable to appellant discloses that defendant first saw plaintiff's decedent when defendant was about one car length east of the driveway. The only evidence of defendant's speed is her own statement to the effect that she was driving 15 miles per hour. There is no showing of excessive speed by any witness, indeed, appellant adopted the figure of 15 miles per hour for his time and space computations. It is shown that defendant cried out when she first perceived decedent and that her sister, hearing the outcry, looked up and saw decedent about one-half car length ahead and in front of the Coil car, the impact being 'almost instantaneous' thereafter, to quote the testimony of the sister.
Appellant urges that the evidence in the case indicates that defendant had a 'last clear chance' to avoid the collision, and resulting injury to decedent. His showing to this end consists largely of computations...
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...These wills had been in the possession of Gardners for over twenty years. This was a factor considered by this court in Myron v. Coil, 82 S.D. 180, 143 N.W.2d 738 (1966), in upholding the decision of the trial judge denying appellant's motion to reopen his case. We find that the trial judge......
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...a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.' " Myron v. Coil, 82 S.D. 180, 185, 143 N.W.2d 738, 740 (1966) (emphasis added) (quoting F.M. Slagle & Co. v. Bushnell, 70 S.D. 250, 254, 16 N.W.2d 914, 916 (1944)). See In re Guardians......
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