Serles v. Braun

• Decision Date: 06 February 1962
• Docket Number: No. 9932,9932
• Citation: 79 S.D. 456,113 N.W.2d 216
• Parties: Wallace M. SERLES, Plaintiff and Appellant, v. Ernest BRAUN and Albert Nadvornick, Defendants and Third-Party Plaintiffs, Respondents, v. Delbert L. VERRY, Third-Party Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 216

113 N.W.2d 216

79 S.D. 456

Wallace M. SERLES, Plaintiff and Appellant, v. Ernest BRAUN and Albert Nadvornick, Defendants and Third-Party Plaintiffs, Respondents, v. Delbert L. VERRY, Third-Party Defendant and Respondent.

No. 9932.

Supreme Court of South Dakota.

Feb. 6, 1962.

Lacey & Parliman, Sioux Falls, Stephens & Brandenburg, Belle Fourche, for plaintiff and appellant.

Whiting, Lynn, Freiberg & Shultz, Rapid City, for defendants and respondents.

Overpeck, Hamblin & Mueller, Belle Fourche, for third party defendant and respondent.

ROBERTS, Judge.

This litigation arose out of a motor vehicle accident which occurred about 8:25 p. m. on July 12, 1958, on U. S. Highway 85 approximately twenty-two miles north of Belle Fourche.

Plaintiff alleges that he was a passenger in an automobile being driven in a careful and prudent manner; that defendant, Albert Nadvornick, had been operating a truck tractor and semi-trailer owned by defendant, Ernest Braun, in a northerly direction on such highway which became stalled partly on the east shoulder; that the driver of plaintiff's automobile proceeding southerly suddenly came upon the tractor and semi-trailer and a third automobile which was passing or parked beside it in such manner as to completely obstruct the traveled portion of the highway; that the driver of plaintiff's automobile in an attempt to avoid colliding with the motor vehicles applied his brakes suddenly and with such force that the automobile skidded out of control and overturned; and that the accident was caused by the negligence of defendants in failing to comply with the mandate of a statute requiring the operator of a motor truck stopping upon the traveled portion of a public highway at night to place lighted flares at designated places on the highway. Before answering, defendants caused Delbert L. Verry, driver of the automobile proceeding ahead of the automobile in which plaintiff was a passenger, to be brought in as a third party defendant. At the conclusion of plaintiff's evidence and after dismissal of the action against defendant Braun, the court granted motions for directed verdict as to the two remaining defendants. Plaintiff has appealed.

Plaintiff urges the following grounds for reversal: First, that the evidence discloses that the negligence of defendant Nadvornick was the sold and proximate cause of the accident and that the verdict and judgment rendered should be set aside and, second, that the trial court erred in refusing to allow the driver of the automobile in which he was a passenger to testify whether or not he could have stopped without rolling over if there had been a flare at the top of the hill.

There is a slight upgrade in the highway where the accident occurred and the front of the standing truck was about 340 feet from the crest of the grade to the north. The truck transporting a load of concrete blocks was equipped with headlights and the usual lights on the top of the cab which was 7 1/2 feet from the ground. The driver of the truck made no attempt to set out flares at the front and rear of the stalled truck to warn approaching traffic. Plaintiff and his sister, Mrs. John A. Jackson, were returning from Bison, South Dakota, to the home of the sister in Spearfish, South Dakota, in an automobile owned by Mrs. Jackson and driven by Darrell Linton at her request. The night was dark and cloudy and it had rained at times on the return trip. Plaintiff and the other occupants approached from the north at a speed of 40 to 50 miles per hour. The driver observing the lights of the standing truck and the taillights of an automobile ahead applied his brakes causing the automobile to skid and tip over. He described what he did as follows: 'I applied the brake. I applied the brake and the car--the right front wheel seemed to grab or lock and spun the car clockwise off the road, and then it rolled over. Well, I would say I did have ample time if the brakes hadn't malfunctioned. This car was equipped with power brakes which are very sensitive, and the car that I drive does not have power brakes. So probably in that situation I probably pushed a little bit harder on the brake than I would normally on my car. However, I do not feel that I made any real panic stop that would justify--due to the situation.' On cross-examination the witness testified:

'Q. Now, I believe you said that you couldn't tell when you came over the hill whether this truck was moving or standing still. A. That's correct.

'Q. So the fact is there wasn't anything unusual in the appearance of the tractor-trailer truck, was there? A. No; not the truck itself.

'Q. It was just on its side of the road and you couldn't tell whether it was standing still or coming toward you. A. No.

'Q. But on the other side of the road you did see some tail lights or brake lights. A. Yes.

'Q. And those appeared to be about opposite the truck, did they? A. Yes.

'Q. And I believe you testified it was because of these brake lights that you applied your brakes. A. That's correct.

'Q. And then the tractor-trailer being there on the side of the road likely had nothing to do with your putting on the brakes. A. No.

'Q. Now, I believe you said that, I think these were your words, that you probably pushed the brakes 'a little harder than I would have on my car but I don't feel that I panicked'. Is that right? A. That's right. A person not used to driving another car and a...