Raverty v. Goetz

• Decision Date: 30 June 1966
• Docket Number: No. 10281,10281
• Citation: 143 N.W.2d 859,82 S.D. 192
• Parties: James J. RAVERTY, Special Administrator of the Estate of James Edward Raverty, Deceased, Plaintiff and Appellant, v. Thomas GOETZ, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 859

143 N.W.2d 859

82 S.D. 192

James J. RAVERTY, Special Administrator of the Estate of James Edward Raverty, Deceased, Plaintiff and Appellant, v. Thomas GOETZ, Defendant and Respondent.

No. 10281.

Supreme Court of South Dakota.

June 30, 1966.

Rehearing Denied Sept. 12, 1966.

Roubideaux, Poches & Reade, Fort Pierre, for plaintiff and appellant.

Costello, Porter, Hill, Banks & Nelson, Rapid City, Jarvis W. Brown, Faulkton, for defendant and respondent.

HOMEYER, Judge.

This is a wrongful death action in which the jury returned a verdict for the defendant. Plaintiff's application for a new trial was denied and this appeal followed.

Plaintiff's decedent, James Edward Raverty, a 13-year-old boy, was killed instantly when struck by an automobile owned and driven by the defendant. The accident occurred about 4 p.m. on September 30, 1964 on U.S. Highway 14 about one mile west of Philip, South Dakota. The day was clear and road conditions were good. The highway to the west of the accident scene slopes upgrade. A motor patrolman fixed the crest of the hill about 690 feet from the point of the accident; defendant estimated it from 400 to 500 feet. Highway 14 is an asphalt surfaced road and the traveled portion measures 25 feet. There are shoulders of gravel and asphalt 9 feet wide on each side. It is a busy across-the-state arterial highway.

Viewing the evidence and the reasonable inferences therefrom in a light most favorable to the defendant, as we are required to do, it appears defendant was traveling between 60 and 65 miles per hour in an easterly direction in the south lane of the highway. As he came over the crest of the hill west of the accident site, he observed plaintiff's decedent whom he took to be a high school boy walking and pushing a bicycle in the same direction in a straight line on the outside edge of the south shoulder of the road. The posted maximum speed limit was 70 miles per hour. As soon as he saw the boy, he sounded his horn and let up on the accelerator. When he was about 200 feet from him he swung his car to the left and away from the boy who was still proceeding in a straight line. When approximately 100 feet from him and nearly in the north lane, the deceased suddenly turned and started walking, then running, across the roadway in a north to northeasterly direction. Defendant again sounded his horn, applied his brakes with extreme force, and struck the boy and bicycle with the right fender of his car near the center of the north lane. The deceased at no time before the impact looked in the direction from which the defendant was approaching. Decedent's family had lived a short distance west of where the accident happened for about 5 years and he regularly traveled this road in attending school at Philip and otherwise. He had been instructed by his father to always walk against traffic and to be very careful when walking along the highway.

As we understand it, plaintiff contends the evidence is insufficient to justify the verdict, and as a corollary thereto (point 6), the court erred in not directing a verdict for him on the issue of liability. He predicates his argument on some inconsistencies and contradictions in the testimony of the defendant and he also says the defendant's version of the accident is so inherently improbable or impossible to make it unbelievable. In support of the latter, he uses the testimony of the motor patrolman on stopping distances at certain speeds, the physical facts revealed in measurements of skid marks, and common knowledge incidental to pedestrian movements. He reasons that accepting defendant's testimony on the boy's position when he started across the highway, it was necessary for the boy to travel at least 28 feet to the point of impact while the automobile was going 100 feet and this was physically impossible.

We find no merit in these contentions. The defendant did no more than give an estimate of his position when the boy started across the road and he sounded his horn the second time. When asked to fix the distance he said: 'Oh, probably 100 feet or so, I don't know, it went so fast'. Cross-examination reveals that on other expressions of distance, speed and position, the defendant likewise was only giving his best estimate. The estimates which defendant gave were not undisputed physical facts, but only impressions gained in a moment of emergency and excitement and were necessarily very uncertain and indefinite. The physical facts rule which permits a discregard of oral testimony when opposed to unquestioned physical facts, Cowan v. Dean, S.D., 137 N.W.2d 337, cannot be utilized where its application depends upon assumptions or calculations based upon estimates of speed, distance, time, and similar uncertain matters in the movement of vehicles or pedestrians. In the very nature of things an estimate of distance in feet or yards is not intended to be accurate and is only an approximation involving best judgment and opinion. The probability or improbability of the evidence and the weight to be accorded it was for the jury and it was for them to determine the accuracy of the defendant's observation and the credibility of his testimony. In a recent case, Stygles v. Ellis, 80 S.D. 346, 123 N.W.2d 348, we said it requires an extraordinary case for this court to disregard sworn testimony and it was for the jury to consider both the physical facts and the sworn testimony in order to make a fact determination as to the defendant's negligence.

On plaintiff's alternate contention, it is clear that under the evidence a factual determination was necessary on defendant's negligence, the contributory negligence of plaintiff's decedent and the comparative extent thereof, assumption of risk, and proximate cause. Stygles v. Ellis, supra. In Myers v. Quenzer, 79 S.D. 248, 110 N.W.2d 840, we recently said these matters are ordinarily for a jury and 'It must be a clear case before a trial judge is justified in taking these issues from the jury. * * * these questions become a matter of law only when the facts from which the inferences can be drawn admit of but one conclusion. This occurs rarely.'

Plaintiff also contends the court erred prejudicially when it received as evidence a part of plaintiff's original complaint ¹ after it had been amended. ² At the close of all the evidence, defendant offered in evidence the following portion of the original complaint 'as a judicial admission binding upon the plaintiff':

'That on September 30, 1964, defendant was operating a 1958 Ford automobile in an easterly direction on Highway No. 14, a public highway approximately one mile east (west) of Philip, South Dakota. That at said time and place, the deceased was walking, pushing his bicycle on the right shoulder of said highway proceeding in the same direction as defendant. * * * That defendant continued in his course of direction and proceeded to the deceased who simultaneously crossed said highway going to the north edge of said highway.'

An objection was made on the ground that an amended complaint had been permitted to be filed in the action. We believe the objection was sufficient and called to the court's attention the reason for its inadmissibility as evidence. The court had before it the original complaint and the amended complaint both of which were signed only by plaintiff's counsel and there was no need to further elaborate thereon. The court too had heard plaintiff's testimony. The same conclusion prevails on the challenged sufficiency of the assignment of error.

A pleading which has been amended, superseded or abandoned ceases to be a judicial admission, but in many jurisdictions it can be introduced in evidence as an admission against the interest of the pleader. 31A C.J.S. Evidence § 304; Hayes v. Jenkins, Mo.App., 337 S.W.2d 259; Kirkwood & Morgan, Inc. v. Roach Rig Bldg. & Const. Co., Tex.Civ.App., 360 S.W.2d 173. The admissibility of such a pleading in the same action, or other actions involving the pleader, has been considered quite frequently in diverse aspects by this court. A review of these decisions will serve as background for our disposition of this appeal.

In Gale v. Shillock, 4 Dak. 182, 29 N.W. 661, an answer verified by the defendant which was superseded by an amended supplemental answer was held admissible when offered by the plaintiff to prove the execution of a power of attorney and deed, the execution of which was admitted in the original answer.

In Corbett v. Clough, 8 S.D. 176, 65 N.W. 1074, the complaint was amended and on trial defendant's counsel was refused permission to introduce in evidence a paragraph of the original complaint. The court said: '* * * in the absence of anything to show that the recital was inserted authoritatively with the knowledge or under direction of respondents, it would be manifestly unjust to thus indirectly defeat the very object to accomplish which the amended complaint was filed. Declarations and admissions are often made by pleaders under a misapprehension of facts, requiring an amended pleading in order to correct mistakes; and where such amended pleading has been substituted for the original, which was drawn and verified by an attorney, we are familiar with no rule of evidence by which a party can be bound by the recitals therein contained.'

In La Rue v. St. Anthony & Dakota Elevator Co., 17 S.D. 91, 95 N.W. 292, an original answer which had been superseded by an amended answer was received in evidence. The court under the authority of Corbett v. Clough, supra, said it was error, but not prejudicial, in view of the testimony of the attorney who prepared the answer that it was incorrect and the jury had the right to so find.

In Behrens Lbr. Co. v. Lager, 26 S.D. 160, 128 N.W. 698, an original answer was received in evidence to prove a material fact when it had been superseded by a second answer. The court said: 'A party, plaintiff or defendant, who verifies a pleading, should be...