Ricketts v. Tusa

• Decision Date: 18 January 1974
• Docket Number: No. 11205--,11205--
• Citation: 87 S.D. 702,214 N.W.2d 77
• Parties: Wallace RICKETTS, Plaintiff and Respondent, v. James Edmund TUSA and Wegner Auto Company, Inc., a South Dakota corporation, Defendants and Appellants. r--FGD.
• Court: South Dakota Supreme Court

Page 77

214 N.W.2d 77

87 S.D. 702

Wallace RICKETTS, Plaintiff and Respondent, v. James Edmund TUSA and Wegner Auto Company, Inc., a South Dakota corporation, Defendants and Appellants.

No. 11205--r--FGD.

Supreme Court of South Dakota.

Jan. 18, 1974.

David A. Gerdes, of Martens, Goldsmith, May, Porter & Adam, Pierre, for defendants and appellants.

Edward M. Blando, of Tidball, Blando, Kemnitz & Axtmann, Pierre, for plaintiff and respondent.

DUNN, Justice.

This is an appeal from a Jury verdict in favor of the plaintiff for personal injuries suffered in an automobile collision in Pierre, South Dakota, on June 20, 1969. The trial court directed a verdict for the plaintiff on the question of liability as against both of the defendants, Tusa and Wegner Auto Company, Inc., and submitted the question of proximate cause and damages only to a jury. From a verdict in favor of the plaintiff against both defendants and a denial of a new trial, defendants appeal.

Plaintiff was proceeding south on Huron Avenue and defendant, Tusa, operating an automobile belonging to his employer, Wegner Auto Company, Inc., was proceeding east on Fifth Street. The collision occurred in the southwest quadrant of the intersection of Huron Avenue and Fifth Street.

According to plaintiff, he was traveling at a speed of 10 or 15 miles per hour as he entered the intersection, and that as the front of his car reached the curbline of Fifth Street, he looked west on Fifth Street and saw no vehicle approaching, even though he could see for at least a half block west on Fifth Street. According to the testimony of Tusa, he was proceeding east on Fifth Street. He stopped for a stop sign one block west of the intersection of Huron and Fifth and then proceeded forward in an easterly direction until he entered the accident intersection at a speed of 20 to 25 miles per hour. He testified that both automobiles entered the intersection at approximately the same time; that he applied brakes when he saw the plaintiff's automobile but still collided with the right front of plaintiff's vehicle. One of the investigating officers testified that Tusa left skid marks of 41 feet leading up to the point of contact with plaintiff's automobile.

After certain skid mark tests conducted by the officer, he concluded that the defendant, Tusa, was operating his automobile at a minimum speed of 40 miles per hour at the point of contact; and defendant, Tusa, was arrested for failing to yield right-of-way. Apparently by a city ordinance, Tusa forfeited his directional right-of-way by excessive speed. The ordinance was not introduced in evidence but reference was made to it in the testimony of the investigating officers. In the absence of an ordinance, state statute also provides that a driver forfeits any directional right-of-way by unlawful speed. SDCL 32--26-- 13. This Court has held that the forfeiture of directional right-of-way by excessive speed under the statute does not confer right-of-way to the other party. Mills v. Armstrong, 70 S.D. 1, 13 N.W.2d 726, and Stacey v. Patzloff, 67 S.D. 503, 295 N.W. 287. This being true, Tusa could scarcely be guilty of failing to yield a right-of-way to plaintiff which plaintiff did not have either by direction or because of defendant Tusa's alleged speed. Nevertheless, Tusa was charged with failure to yield right-of-way. He first pled not guilty to the charge and then later changed his plea to guilty and was fined $10.00. According to Tusa this was done not because he thought he was guilty, but because he did not want to incur the expense of counsel, and because he wanted to leave town immediately. Plaintiff's evidence does not indicate a speed limit at this intersection, but a discovery deposition of officer Jones (included in the settled record) placed the speed limit at 30 miles per hour. This deposition was not introduced in evidence, and thus was not considered by the jury or the trial court. Accordingly, we are bound by the general statutory speed statute at this intersection that 'It shall be unlawful for any person to drive a motor vehicle on a highway located in this state at a speed greater than is reasonable and prudent under the conditions then existing'. SDCL 32--25--3.

According to the expert testimony of Richard Siedschlaw, a South Dakota Highway Patrolman and a witness for the defense, the skid marks of 41 feet by measurement under the circumstances of this accident, would indicate a speed of 26 to 31 miles per hour of the Tusa driven vehicle. Neither the police officer nor the highway patrolman testified from actual observation of the speed, but from certain scientific tests taken at the scene of the accident.

Where a verdict is directed against the defendant on liability, this Court on appeal is required to review the evidence in the light most favorable to the defendant. Berlin v. Berens, 76 S.D. 429, 80 N.W.2d 79. In order for the plaintiff...