Smith v. Aspaas

• Decision Date: 25 February 1946
• Docket Number: 8817
• Citation: 71 S.D. 111,21 N.W.2d 878
• Parties: CYRUS SMITH, Appellant, v. JOE ASPAAS, Respondent.
• Court: South Dakota Supreme Court

71 SD 111, 21 NW2d 878 (1946)

CYRUS SMITH, Appellant v JOE ASPAAS, Respondent South Dakota Supreme Court Appeal from Municipal Court, City of Sioux Falls, SD Hon. Walter Conway, Judge #8817—Reversed Charles Lacey, Eileen Lacey, Sioux, SD Attorneys for Appellant. Davenport, Evans & Hurwitz, Sioux Falls, SD Attorneys for Respondent. Opinion Filed Feb 25, 1946

SMITH, Judge.

This litigation arose out of a collision of motor vehicles at an intersection. Verdict and judgment were for defendant. The appeal is by plaintiff. The principal assignment deals with an alleged error in the court’s instructions.

The collision occurred at the intersection of Cliff Avenue and 4th Street in the City of Sioux Falls just before six o’clock p. m. on January 23, 1945. The plaintiff came from the north along Cliff Avenue in a 1939 Chrysler. The defendant came from the east along 4th Street in a Ford truck: Cliff Avenue is paved and thirty-two feet wide. There was enough ice on the west half of the intersection to render it somewhat slippery.

Plaintiff testified: he was traveling south at a speed of fifteen miles per hour; he first saw defendant when defendant was about seventy-five feet and plaintiff was slightly more than that distance from the intersection; he observed the defendant traveling from that point and saw him slow down to a stop or almost to a stop just at the east line of the intersection; as defendant reached that position plaintiff was six to eight feet from the north line of the intersection advancing at the rate of fifteen miles per hour; he then looked west; when he looked back defendant was right upon him; and the front bumper of defendant’s truck crashed into the left side of plaintiff’s car, leaving marks extending backward from the rear of the front door. He further testified that defendant was traveling westward in the center of the street and that plaintiff was traveling south five feet west of the center line of Cliff Avenue at the moment of the impact; that plaintiff’s car came to rest heading in a northeasterly direction with its rear wheels over the curb in the southwest corner of the intersection; and that defendant’s truck continued straight west and stopped just west of the intersection.

Plaintiff and a policeman testified that defendant stated he was blinded by the sun and did not see plaintiff.

According to the testimony of defendant, he slowed down to two miles per hour as he reached the intersection; he looked north along Cliff Avenue “on an angle-about a hundred feet” and saw no car; he looked to the south and saw a car three hundred feet distance and decided he had time to cross; he moved forward and as he reached the center line of Cliff Avenue he discovered plaintiff just entering the intersection from the north; he could not estimate plaintiff’s speed but fixed his own speed at five miles per hour at the time of the impact. Defendant does not deny that the impact was between his front bumper and the left side of plaintiff’s car. He testified that the impact moved his car about two feet south, and turned his lights and bumper fastenings to the south, and that his car came to rest inside the intersection. He denied he had said that the sun had blinded him. He admitted the sun was bright and shining on his windshield, but denied that it interfered with his vision.

The complaint of the plaintiff alleged that defendant was negligent (a) in not yielding the right of way to plaintiff, (b) in not maintaining a proper lookout, and (c) in proceeding across the intersection while blinded by the sun. The answer and counterclaim of defendant denied the foregoing allegations of negligence and alleged that plaintiff (a) failed to maintain a proper lookout, (b) failed to keep his car under control, (c) drove at an excessive speed, (d) failed to yield the right of way to defendant, and (e) that plaintiff was guilty of more than slight negligence which contributed to his damage.

The eleventh instruction of the court reads as follows:

“You are instructed that when two vehicles approach oil enter an intersection at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right except as otherwise herein stated. The driver of any vehicle traveling at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder. The driver of a vehicle...