Robertson v. Hennrich

• Decision Date: 13 October 1947
• Docket Number: 8920.
• Citation: 29 N.W.2d 329,72 S.D. 37
• Parties: ROBERTSON v. HENNRICH.
• Court: South Dakota Supreme Court

29 N.W.2d 329

72 S.D. 37

ROBERTSON v. HENNRICH.

No. 8920.

Supreme Court of South Dakota

October 13, 1947

Harold Gunvordahl, Jr., of Burke, and G. F. Johnson of Gregory, for plaintiff and appellant.

J F. Frame, of Burke, for defendant and respondent.

HAYES, Judge.

The litigation we are here called upon to review reached the trial court as an outgrowth of an automobile collision involving vehicles then being operated by the parties litigant. The vehicles collided at the intersection of highways adjacent to the city of Gregory, this state. State Highway No. 47, which we will refer to in this opinion as the highway, and what is described in the record as a township road intersect at the northwest corner of the city limits of said city. As a further aid to brevity, we will hereinafter refer to the township roadway as the road. The main course of the highway is north and south; the road, east and west. It may be important to note, however, that the testimony and exhibits in the case place a butte a short distance due north of the scene of the collision and that the highway curves to the west of said butte. Accordingly, a motorist driving southward on the highway, as was plaintiff's course, would be headed in a southeasterly direction as he approached the intersection. Defendant was traveling eastward on the road.

The collision occurred in the daytime and it is clear from the case record that each of the parties had an unobstructed view of the vehicles then being driven to the point of impact for quite considerable distances north and west of said point. Both parties had long been familiar with the courses of travel above mentioned and both were aware of the fact that the highway had been designated as a main traveled or through highway pursuant to the provisions of SDC 44.0321. A 'stop' sign is maintained at the side of the road in question some little distance from the intersection thereof with the highway. The exact location of said sign is not fixed by the record evidence.

Plaintiff's complaint alleges the failure of defendant to stop his automobile before entering the intersection and that such failure was the proximate cause of the damage to the vehicle of the former. Defendant's answer denies that plaintiff sustained any damage as a result of negligence on defendant's part and alleges that the damage suffered by plaintiff was wholly due to contributory negligence of the plaintiff. By a counterclaim defendant sought to recover for the damage to his automobile alleging generally negligent driving on plaintiff's part.

Paragraph (9) of plaintiff's complaint is as follows: 'That as the defendant drove his car toward the intersection he slowed its speed and apparently seemed to be going to stop as required by the stop sign.' This paragraph is specifically admitted in defendant's answer. We will hereinafter refer to the facts thus agreed upon by the pleadings.

At the close of the evidence in what began as a jury trial the court below, upon motion of defendant's attorney directed a verdict against plaintiff and in defendant's favor for the full amount asked by the latter. For an understanding of defendant's position and theory at the trial and the nature of his contentions before this court we here note that the grounds of defendant's motion are that the evidence establishes the failure of plaintiff to maintain a proper lookout and have his car under such control that he could have avoided the collision; that such failure on plaintiff's part constituted contributory negligence, and that such negligence was the proximate cause of defendant's damage. From the granting of this motion plaintiff has appealed. The ruling of the trial court and the assignments of error require a review of the evidence most favorable to the plaintiff for the reason that such ruling was against the plaintiff upon the evidence by which both causes of action, one pleaded by each party, were sought to be sustained at the trial.

No question of excessive speed is involved as it plainly appears that both parties proceeded toward the intersection at moderate rates of travel. Defendant failed to observe plaintiff's car until he reached the intersection. Plaintiff first saw defendant's car approaching from the west just as he was about to enter the intersection. From a photograph in the record it appears that a motorist traveling southward on the highway must steer his car along a gradual curve from southeasterly to due south as he enters the intersection. Upon observing defendant's car plaintiff lowered his speed from 30 miles an hour and proceeded to cross the intersection along his regular course. At this time, perhaps two or three seconds before the collision, defendant was approaching plaintiff's path of travel at a speed of five to ten miles an hour and was appearing, as agreed by the pleadings, about to stop. Believing that defendant would avoid entering the main traveled portion of the highway plaintiff undertook to exercise his right of way. Defendant failed to stop his automobile before entering upon the highway immediately in front of plaintiff's car and the two vehicles collided at a point on the westerly side of the highway. As he observed defendant's...