Nielsen v. Richman

• Decision Date: 18 November 1940
• Docket Number: No. 11700.,11700.
• Citation: 114 F.2d 343
• Parties: NIELSEN v. RICHMAN.
• Court: U.S. Court of Appeals — Eighth Circuit

114 F.2d 343 (1940)

NIELSEN v. RICHMAN.

No. 11700.

Circuit Court of Appeals, Eighth Circuit.

August 26, 1940.

Rehearing Denied September 16, 1940.

Writ of Certiorari Denied November 18, 1940.

COPYRIGHT MATERIAL OMITTED

George J. Danforth, of Sioux Falls, S. D. (G. J. Danforth, Jr., of Sioux Falls, S. D., on the brief), for appellant.

Holton Davenport, of Sioux Falls, S. D. (Ellsworth E. Evans, of Sioux Falls, S. D., on the brief), for appellee.

Before WOODROUGH and THOMAS, Circuit Judges, and BELL, District Judge.

Writ of Certiorari Denied November 18, 1940. See 61 S.Ct. 172, 85 L.Ed. ___.

BELL, District Judge.

This is an action by appellant against appellee for damages resulting from the death of Pearl Nielsen which was caused by injuries sustained in an automobile accident in the city of Colman, South Dakota. The parties will be designated as in the court below.

At the conclusion of the plaintiff's evidence the court directed a verdict for the defendant on the ground that the decedent was guilty of contributory negligence. A motion for a new trial was made and overruled, and an appeal was taken from the judgment entered on the directed verdict.

Therefore, the question involved is whether the court was justified under the evidence in the case in holding as a matter of law that contributory negligence of the decedent precluded a recovery.

In considering this question, a number of well-settled principles should be observed: (1) All facts that the plaintiff's evidence reasonably tends to prove, and all inferences that reasonably may be drawn therefrom, must be resolved in her favor. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Elzig v. Gudwangen, 8 Cir., 91 F.2d 434; Columbian National Life Insurance Company v. Comfort, 8 Cir., 84 F.2d 291. (2) The weight of uncontradicted evidence and the credibility of the witnesses who gave it usually are questions for the determination of the jury. Elzig v. Gudwangen, supra. (3) It is only where the evidence is so overwhelmingly on one side as to preclude an opportunity for reasonable minds to differ that the court should direct a verdict. Gunning v. Cooley, supra; Southern Pacific Company v. Pool, 160 U.S. 438, 16 S.Ct. 338, 40 L.Ed. 485; Svenson v. Mutual Life Insurance Company, 8 Cir., 87 F.2d 441. (4) Contributory negligence usually is a question of fact for the jury. Montgomery Ward & Co. v. Snuggins, 8 Cir., 103 F.2d 458; Egan Chevrolet Company v. Bruner, 8 Cir., 102 F.2d 373, 122 A. L.R. 987; Phillips Petroleum Company v. Miller, 8 Cir., 84 F.2d 148; Pryor v. Strawn, 8 Cir., 73 F.2d 595. (5) The burden of proving contributory negligence is on the party alleging it. Cook Paint & Varnish Company v. Hickling, 8 Cir., 76 F.2d 718; Reinschmidt v. Hirsch, 65 S.D. 498, 275 N.W. 356.

The accident happened at the intersection of state highway number 34 and Main Street in the city of Colman, South Dakota. The highway runs in an easterly and westerly direction and is paved with a concrete pavement twenty feet wide. Main street runs in a northerly and southerly direction, has a gravel surface, and intersects but does not extend south of the highway. Both are comparatively level at the intersection, but the highway east of the intersection inclines slightly upward, reaching its greatest elevation about a quarter of a mile east of the intersection.

There are three gasoline service stations at the intersection, one on the northeast corner, one on the northwest corner, and one on the south side of the highway opposite the end of Main Street. The intersection is within the corporate limits of Colman and about four blocks south of the business district. A row of trees stand on the north side of the highway east of the intersection about six feet from the property line. A telephone pole and three signs also stand on the northeast corner substantially in line with the trees. Highway number 34 is an arterial thoroughfare and there is a stop sign on the west side of Main Street 86 feet north of the north line of the highway.

Late in the afternoon of January 13, 1939, Pearl Nielsen, the decedent, nineteen years of age, drove her automobile in a southerly direction on Main Street. Her sister, Dena, sixteen years of age, occupied a place in the front seat at her side. The decedent was an experienced driver and was familiar with the intersection. She stopped at the stop sign and then drove slowly forward at not to exceed ten miles per hour. When she was 25 feet to 30 feet north of the pavement on highway 34, she and her sister looked to the east and to the west and saw no approaching vehicles. The decedent, according to the testimony of Dena, made a remark, "I don't see anybody, do you?" She continued forward at about ten miles per hour, turning to the left, heading in a southeasterly direction, and when her automobile was about half over the center line of the pavement it was struck by an automobile driven by the defendant who was driving in a westerly direction on the highway. The point of contact of the automobiles was on the south side of the highway and about twelve feet east of the east line of the intersection. Apparently, decedent failed to escape by a fraction of a second.

On approaching the highway from the north on Main Street the row of trees and other obstructions blend together so as very thoroughly to obstruct the view of a driver of the highway to the eastward when the eyes are about 30 feet north of the pavement and until the eyes reach a point within about 20 feet of the pavement, except for a short distance east of the intersection; that is, there is a distance of approximately 10 feet when the view of a driver approaching the highway on Main Street is obstructed. At a point 25 feet north of the pavement the driver could see eastward of the intersection 130 feet, and in moving southward the range of visibility of the highway east of the intersection increased. One witness testified that at a point 20 feet north of the pavement a driver could see to the eastward 380 feet and when 10 feet north of the pavement the driver could see to the top of the hill a quarter of a mile away. Another witness said that from 20 feet to 25 feet north of the pavement he could see to the eastward about 150 feet.

The defendant, on cross examination under the statute, said: "I saw a car coming down Main Street approaching the intersection * * *. It was about 25 to 50 feet away from the north line of the intersection. * * * I was probably 125 to 150 feet east of the east line of the intersection. The car was coming at a slow rate of speed. I judge about ten miles an hour. I did continue to see the car until the time of the collision, and kept my eye on that car all the time. That car never changed its speed at all. It kept right on going. * * * I blew my horn. * * * I took my foot off the gas but did not put on the brake. And this other car was coming into that intersection without any visible signs of stopping there. * * * Just before the cars collided, I turned my car to the left to the south so that when the crash came my car was probably going southwest. Somewhere along there I put on my brakes. * * * I think I was 30 to 40 feet away from the other car when I put on my brakes. It was right at the time I sounded my horn. * * * The Nielsen car was 10 or 15 feet from the pavement when I first realized it was not going to come to a stop before it went on to the pavement."

Leland, a witness to the accident and the operator of the station on the northwest corner, said he was standing 50 to 60 feet north of the pavement, that he happened to look to the east and saw the defendant approaching about 600 feet east of the intersection at a speed of approximately 50 to 55 miles an hour, that he did not reduce his speed until just before the crash, that when the Nielsen car reached the line of trees it was going about 10 miles an hour and the other car then was about 250 feet to 300 feet away, that when the crash came he went over and the Nielsen automobile was on the south shoulder of the highway 40 feet to 50 feet from the point of impact and the defendant's automobile was against a tree east of the gasoline station on the south side of the highway.

Leland further testified that the Nielsen automobile was 35 to 40 feet south of the stop sign when he first saw it and that it did not come to a stop until the crash; that he saw the defendant's automobile swerve to the left, that it was headed in a southwesterly direction and the decedent's automobile was headed in a southeasterly direction at the time of the collision and the latter was about half way across the black line — the center stripe — on the highway; that the tire was torn from the left front wheel of the Nielsen automobile and the rim had made a cut in the pavement about 18 inches south of the center line.

Photographs of the automobiles in evidence in the case show that there must have been a terrific impact when they came together and that the left front corner of defendant's automobile struck the left side of decedent's automobile at the left front wheel. Other photographs show that from 20 feet to 30 feet north of the pavement the view of a driver of an automobile on Main Street headed in a southerly direction is almost entirely obstructed of the highway to the left, except near the intersection.

In addition to the principles of common law, we are concerned with statutes of the state of South Dakota, as follows:

"The State Highway Commission with reference to state highways and local authorities with reference to highways under their jurisdictions are hereby authorized to designate main traveled or through highways by erecting at the entrances thereto from intersecting highways, signs notifying drivers of vehicles to come to a full stop before entering or crossing such designated highways, and whenever any such signs have been so erected it shall be unlawful for the driver of any vehicle to fail to stop...