Pemberton v. Fritts

• Decision Date: 07 January 1930
• Docket Number: 6358.
• Citation: 228 N.W. 409,56 S.D. 374
• Parties: PEMBERTON v. FRITTS et al.
• Court: South Dakota Supreme Court

228 N.W. 409

56 S.D. 374

PEMBERTON v. FRITTS et al.

No. 6358.

Supreme Court of South Dakota

January 7, 1930

Appeal from Circuit Court, Edmunds County; J. H. Bottum, Judge.

Action by Ruby Pemberton against B. V. Fritts and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Affirmed.

Campbell and Burch, JJ., dissenting.

McNulty Williamson & Smith, of Aberdeen, for appellants.

J. M Berry, of Ipswich, for respondent.

BROWN J.

Plaintiff and her husband, Frank Pemberton, farmers living 3 1/2 miles north of Ipswich, when returning home from Aberdeen between 8 and 9 o'clock on the night of January 4, 1926, in a Chevrolet car driven by the husband, collided with a car driven by defendant Fritts, and from a judgment and an order denying a new trial in an action for injuries alleged to have been sustained by plaintiff in the collision, defendants appeal.

The collision occurred on the Yellowstone Trail, a graveled state highway, at a point about 13 miles west of Aberdeen and a little more than a mile north of Mina, where the road turns south for a mile. Plaintiff and her husband say that when they came up out of a hollow where Snake creek crosses the highway, about 40 rods east of where the accident happened they saw the light of Fritts' car just as it made the turn a mile to the south; that after watching it for a time they saw that it was traveling fast, about 45 miles an hour in their estimation, and thinking they might meet at the turn, they slowed down to between 10 and 15 miles an hour and kept as close to the north side of the road as they could do with safety. According to Fritts' testimony, the cars collided about 25 yards east of the turn, and testimony on behalf of plaintiff shows that at this point, and for some distance east, the north wheel of the Chevrolet was within 18 inches of the north edge of the grade, which was about 4 1/2 feet high with a slope of about 25 degrees to the ditch on the north side of the road. Testimony on behalf of plaintiff also showed that Fritts' car, which was a Studebaker Six coupé, came around the corner at a rapid rate, one witness saying that he traced the track of its north wheel from the place of collision back around the bend; that this track was within from 3 to 4 feet of the north edge of the grade and was from 6 to 8 inches wide where the loose gravel was swept off as it came around the turn; and that the Studebaker appeared to have rounded the bend about 3 or 4 feet north of the center of the road. The Chevrolet was thrown across the ditch, the hind wheels on the sod beyond and the front wheels against the cut bank, estimated to be from 8 to 12 inches high, the left front tire split open. The bumper was torn loose, the left fender crushed back on the frame, and the left light out after the collision. The car was almost at right angles to the road, facing very slightly southeast. The coupé remained on the grade, which was 24 feet wide, the front of the coupé being within 3 or 4 feet of the north edge of the grade and the back slewed around toward the south. Both of its front springs were broken, the front axle was broken, and the engine had dropped to the ground; the left front fender and hood were bent, the left light was broken, the clutch and starter were broken, and the cross-arm between both lights to the fenders was broken, one disk wheel bent, and one tire cut up. An effort to move the coupé so as to allow traffic to pass freely on the south side of it was unsuccessful on account of the engine having dropped to the ground, so the rear end of it was slewed further around to the east so as to permit traffic to pass on the south half of the grade.

Fritts worked for the Western Grocer Company as a salesman on commission, taking orders and collecting from retail merchants in territory west and north from Aberdeen. On the day the collision occurred he left Strasburg, N. D., and worked the towns of Pollock, Herreid, Mound City, Selby, Bowdell, and Gretna in the course of his employment, and was on his way home to Aberdeen when the collision occurred.

Fritts and W. C. Jepson, a traveling man who was riding with him, testified that on the mile to the corner their speed was 35 miles an hour, and that they slowed down for the corner to not exceeding 25 miles an hour; that they were south of the middle of the grade; that the Chevrolet approached the corner on the south side of the road; and that they noticed before making the turn that the Chevrolet had only one light.

After the collision plaintiff and her husband were taken to Ipswich by a passing car, and that same night Pemberton got three men to go out from Ipswich and bring in his car. These men testified to circumstances tending to show that the Studebaker rounded the corner at a high speed and collided with the Chevrolet on the north side of the center of the highway, and on this state of the evidence the contention that the evidence is insufficient to show any negligence on the part of Fritts cannot prevail.

It is urged that the court erred in overruling defendant's objection to the question asked plaintiff and her husband, at what speed the coupé was traveling as it approached the corner. They testified that they did not see the car itself, but only the light from it, and the argument is that no one, observing the light of an approaching car, can form any reliable estimate of the speed at which it is traveling. But in this instance plaintiff and her husband were not observing the light of a car directly approaching them but a car traveling a road at right angles to their line of travel. It is obvious that it would be quite possible from the progress of the light, for a person accustomed to observing the speed of cars to form an estimate of the speed of a car traveling in such a direction from the observer, and it was for the jury to give such weight to the estimate as it thought proper. Plaintiff herself had driven a car for years and had ridden in cars going from 40 to 50 miles an hour; her husband had driven a car for 15 years and had likewise ridden in cars going at high, as well as low, speeds. Both were therefore qualified to give an opinion as to the speed at which the Fritts coupé was traveling. Borneman v. Ry. Co., 19 S.D. 459, 104 N.W. 208.

Robert Owens, an engineer and land surveyor, about two weeks before the trial went with Frank Pemberton and the three men who hauled in his car on the night of the collision, and made measurements of the width of the grade, the depth of the ditch on the north side, and the distance from the point where Pemberton said his car was when it collided with the coupé to the place where they told him it was on the other side of the ditch when the three went out to haul it in, and over the objection of defendants that he had no personal knowledge as to where the cars were, he was properly permitted to testify to those measurements.

Plaintiff was asked what defendant Fritts said at the time of the collision immediately after they got out of the car, and replied that he used profanity and said the Chevrolet was on the wrong side of the road, and also said that Western Grocer Company carried liability insurance to protect both cars in any accident he might have on the road. Defendant Western Grocer Company moved to strike out the answer of the witness in regard to carrying liability insurance, for the reason that it is irrelevant and immaterial and has no bearing on the issues of the case and is not binding on the Western Grocer Company. The motion was denied, but the court explicitly instructed the jury that this evidence could be considered only as bearing upon the relation of principal and agent between Fritts and the grocer company. We think there was no error in this ruling, but in any event it was not prejudicial for Fritts himself, as an adverse witness, had already testified without objection that Western Grocer Company paid liability insurance on his car.

Defendants allege error in the court's refusal to give a requested instruction to the effect that if plaintiff rode with her husband in the car with only one light, in violation of law, the husband as a matter of law was guilty of negligence which would be imputable to plaintiff and prevent any recovery in the action, and that the court also erred in charging that the burden of proving contributory negligence was on defendants, and in giving the jury the following portion of an instruction: "However, the mere failure of such car to have two lights, would not in any way defeat her rights in this case, unless her injuries were due in some degree to her own personal negligence. Her rights would not be defeated solely on account of any negligence there might be on the part of her husband, nor unless the failure to have two lights on the car contributed to and helped to cause her injuries."

Defendants assert that there was no issue of contributory negligence in the case; "that the fact that the lights were not burning is a matter of affirmative showing which is uncontradicted, and it is improper to tell the jury that any burden of proof is upon defendants in regard thereto." But the fact that the lights were not burning is not uncontradicted. Both plaintiff and her husband testified that when ...