Snodgrass v. Nelson, Civ. No. 72-1038.

• Decision Date: 11 January 1974
• Docket Number: Civ. No. 72-1038.
• Parties: In re Constance R. SNODGRASS, as Special Administratrix of the Estate of Michael P. Snodgrass, Deceased, v. Wayne Lee NELSON et al.
• Court: U.S. District Court — District of South Dakota

369 F. Supp. 1206

In re Constance R. SNODGRASS, as Special Administratrix of the Estate of Michael P. Snodgrass, Deceased, v. Wayne Lee NELSON et al.

Civ. No. 72-1038.

United States District Court, D. South Dakota.

January 11, 1974.

Stanley E. Siegel and Murray Ogborn, Aberdeen, S. D., for plaintiff Snodgrass.

Richard H. Battey, Redfield, S. D., for defendant Nelson.

Ellsworth E. Evans, Sioux Falls, S. D., for defendants Shows, Ramey and Seminole Transport Lines.

John B. Shultz, Sioux Falls, S. D., for defendants Bennie Benjamin and Petroleum Carriers, Inc.

MEMORANDUM DECISION

BOGUE, District Judge.

This is a wrongful death action which was tried to the Court. It arises out of a motor vehicle accident that occurred at a point approximately four miles south of Redfield in Spink County, South Dakota, on January 24, 1972, at approximately 2:00 p. m. As a result of this accident, Michael Snodgrass was killed. The action is brought for the benefit of his surviving wife and three year old child.

On the afternoon and evening of Friday, January 21, 1972, it started raining in an extensive area in South Dakota. The location of the accident, the subject of this litigation, was in this area. This rain froze on the highways leaving a sheet of glare ice. In addition, the rain turned to snow the following day and accompanied by high winds engulfed the area in a snowstorm, continuing throughout Monday the 24th of January.

The road on which the accident occurred, U. S. Highway 281, runs in a northerly and southerly direction. However, at the point of the accident the highway angles somewhat toward the northwest and southeast. There is a substantial hill, the crest of which was some 500 to 600 feet to the north of the place of the impact. The highway, which is blacktop and approximately 26 feet wide with little or no shoulders, was covered with ice. A strong northwesterly wind was blowing snow across the highway, reducing visibility.

A Seminole truck was headed north upon this highway, driven by Fred M. Shows, with Charles A. Ramey as the driver in charge. This truck lost traction (spun out) on the icy highway as it was going up this rather steep hill. It stopped on its own side of the highway and backed down a short distance where it came to a stop. These drivers made no attempt to put out any kind of warning devices, such as flares or reflectors, but did put on several flashing lights which are located on various parts of the truck and trailer along with the regular headlights of the truck. The Seminole truck was some 500 to 600 feet from the crest of the hill. It was at all times on its own side of the highway. Some distance to the south of this truck was a "no passing" sign. The yellow lines were obscured by the ice and blowing snow.

After a few minutes a petroleum carrier truck driven by Mr. Benjamin, also traveling north, came up behind the Seminole truck and before it could get stopped, had to enter the west lane of traffic to a point alongside the Seminole truck. The petroleum carrier truck then backed southward to a point in its own lane of traffic, 25 to 30 feet behind the Seminole truck. The petroleum carrier truck also had its headlights on along with its flashing lights. Mr. Benjamin did attempt to place reflectors on the highway behind his truck but not to the front, but was unable to do so due to the strong wind.

Michael Snodgrass was riding in his motor vehicle, a Ford Maverick, which was being driven by his wife, Constance R. Snodgrass. Another passenger in the car was Diane Barkley, now Mrs. Diane Raba. Michael and Constance Snodgrass and Miss Barkley had left Geddes, South Dakota, enroute to Aberdeen, South Dakota, on the day of the accident at about 9:00 a. m. Upon reaching Corsica, South Dakota, they placed a call to the Highway Patrol to determine what the road was like going north on U. S. 281. They were told the roads were passable and they proceeded north.

As the deceased, his wife and passenger arrived at the scene, they stopped at a distance back of the trucks. The reason for stopping was to decide what they were going to do. As they were pondering this decision they saw a car and a bread truck proceed out and around the vehicles and over the top of the hill. They decided, upon seeing the car and the bread truck go over the hill, that they could make it. They decided to get as far to the west side of the road as possible and thus there would be sufficient room for a vehicle approaching from the north to pass between them and the trucks. Constance Snodgrass then started the Snodgrass vehicle up the hill on the right side of the road until she reached a point where she would have to pass the trucks, at which time she pulled over to the left side of the highway. At a point in the highway approximately opposite the Seminole truck the Snodgrass vehicle spun out. At this time the deceased and Diane Barkley got out of the car and assisted in trying to push the vehicle over the hill. The Snodgrass car was, of course, headed in a northerly direction and was as far to the west side of the road as it could get on the highway in order to get additional traction and to provide sufficient room so that a vehicle could pass between it and the stalled trucks. There was testimony that there was a distance of 12 to 15 feet between the right side of the Snodgrass vehicle and the left side of the Seminole truck. About this time four persons in a following vehicle came up and assisted in the pushing of the Snodgrass vehicle. Michael Snodgrass was on the right side of his car either pushing on the wheel well or door handle. At this moment, the defendant, Wayne Lee Nelson, driving his motor vehicle in a southerly direction, came over the brow of the hill.

On this Monday morning Mr. Nelson had traveled this very same stretch of road, as he had done on numerous previous occasions, going north to work in Redfield, South Dakota. Mr. Nelson's vehicle was a late model Buick equipped with studded snow tires. Mr. Nelson knew that the hill had been icy for days. As he came over the top of the hill, he was suddenly confronted with the Snodgrass car and the stalled trucks in front of him, 400 to 500 feet away by his own testimony. Mr. Nelson testified his speed to be 25 to 35 miles per hour when he first spotted the vehicles. He testified that he applied his brakes, blew his horn, and tried to turn. Both Mr. Shows and Mr. Ramey testified that they estimated Mr. Nelson's speed to be between 50 to 55 miles per hour. It was also disputed as to whether or not Mr. Nelson blew his horn, as no witness could testify as to their remembering it; although none could testify that the Nelson horn had not been blown. There was also testimony by Mr. Nelson that he attempted to turn his vehicle into the ditch and that his vehicle went into a skid.

In any event, the Nelson vehicle first struck the right front corner of the Snodgrass car and at some point probably also struck Michael Snodgrass. After the impact between the Nelson motor vehicle and the Snodgrass motor vehicle, the Nelson vehicle careened toward the southeast where the left side of the Nelson motor vehicle struck the left front corner of the Seminole truck. Following this impact, the Nelson motor vehicle traveled in a southwesterly direction impacting with two other individuals and ended up in the west ditch. When the Nelson motor vehicle came to a stop in the west ditch, it was discovered that the body of the deceased was underneath it.

Constance R. Snodgrass, as Special Administratrix of the estate of Michael P. Snodgrass, deceased, brought an action against Wayne Lee Nelson, Fred M. Shows, Charles A. Ramey, Seminole Transport Lines, Inc., Bennie Benjamin and Petroleum Carriers, Inc., for wrongful death of the decedent, Michael P. Snodgrass for alleged negligence of the defendants and requesting damages of Seven Hundred and Seventy-Five Thousand Dollars ($775,000.00), together with costs.

The defendant, Wayne Lee Nelson, answered alleging contributory negligence and assumption of risk on the part of the plaintiff, Constance Snodgrass and the deceased Michael Snodgrass. A counterclaim was filed by Mr. Nelson against the plaintiff claiming damages in the amount of Thirty Thousand Dollars ($30,000.00) for property damage and personal injuries. Mr. Nelson also filed a cross claim for contribution and indemnity as against the other defendants. Constance Snodgrass was joined in the case as a Third Party Defendant by Wayne Lee Nelson in which it was alleged that in the event it be held that the Defendant Wayne Lee Nelson be liable herein, that there be contribution as against the said Constance R. Snodgrass.

It is further alleged by the Defendant Wayne Lee Nelson that by virtue of the negligence of the said Constance R. Snodgrass in driving the Snodgrass motor vehicle, the negligence is imputed to the deceased, which bars his recovery herein. In other words, a joint venture existed between the deceased and his spouse.

The other defendants, each individually, answered also alleging contributory negligence and assumption of risk on the part of the plaintiff, Constance Snodgrass, and the deceased, Michael Snodgrass. These defendants further allege in answer to the cross claim of the other defendants that if it be found that they were in any way at fault for the death of the decedent, such fault was so slight in comparison to the negligence of the other defendants as to render inequitable an equal distribution of such fault among all of the defendants. Thus, the relative degrees of fault, if any, of these defendants and all other defendants, should be considered in determining the pro rata share of these defendants in any common liability unto the plaintiff herein.

The first issue this Court will decide is the issue raised by Mr. Nelson in his counterclaim wherein he alleges negligence on the part of the plaintiff and the plaintiff's decedent in the operation of the...