Stacey v. Patzloff

• Decision Date: 06 December 1940
• Docket Number: 8325.
• Citation: 295 N.W. 287,67 S.D. 503
• Parties: STACEY v. PATZLOFF.
• Court: South Dakota Supreme Court

295 N.W. 287

67 S.D. 503

STACEY v. PATZLOFF.

No. 8325.

Supreme Court of South Dakota.

December 6, 1940

Rehearing Denied January 9, 1941.

Appeal from Circuit Court, Hanson County; R. C. Bakewell, Judge.

Action by Harry Stacey against Frank Patzloff for damages sustained in an automobile collision. Judgment for defendant, and plaintiff appeals.

Affirmed.

Danforth & Seacat, of Alexandria, for appellant.

Morgan & Whiting and H. T. Fuller, all of Mitchell, and Frank Vincent, of Alexandria, for respondent.

RUDOLPH, Judge.

This action involves a collision at a highway intersection. The negligence of the defendant stands admitted and the only question is the contributory negligence of the plaintiff. After a trial the jury returned a verdict for the plaintiff which upon the motion of the defendant was set aside and the trial court entered judgment for defendant notwithstanding the verdict. Plaintiff has appealed.

The evidence most favorable to the plaintiff discloses the following facts: Plaintiff was driving north on a graveled county highway, and defendant was driving west on a graveled township highway. Neither highway was an arterial highway under the provisions of SDC 28.0902. Plaintiff's view of the intersecting highway, as he approached the place of collision, was unobstructed. Plaintiff was driving his car at approximately thirty-five miles per hour, and testified that the defendant was driving at approximately fifty miles per hour. Plaintiff further testified that, as he approached this intersection, he was looking to the east but failed to observe defendant's car approaching from the east until plaintiff was entering the intersection. We quote the pertinent parts of plaintiff's testimony.

" Q. When you approached this intersection did you look to the east to see if there were any cars approaching on that side road? A. I did.

" Q. Did you look when you were within fifty feet of that intersection? A. Yes, sir.

" Q. How far could you see out that road when you were within fifty feet of the intersection looking to the east? A. I would think around two or three hundred feet.

" Q. As you approached this intersection you were looking, were you not, at all times, to the east? A. Yes sir.

" Q. When did you first see this car of Mr. Patzloff's? A. As I was entering the intersection.

" Q. Where was it? A. I would say a hundred feet or more down the road.

" Q. To the east? A. Yes sir.

" Q. How fast was it going, if you know? A. It would be just an estimate, but I would think around fifty miles an hour.

" Q. What, if anything, did you do at that time? A. I stepped on the gas to try and get out of his way."

The collision occurred in the northwest quarter of the intersection at a point approximately four feet north and ten feet west of the center of the intersection. Plaintiff's car was struck on the rear bumper.

Appellant contends that the above facts bring this case within the rule announced in the case of Campbell v. Jackson et al., 65 S.D. 154, 272 N.W. 293, 295. We are unable to agree with this contention. The facts in that case disclose that both plaintiff and defendant were approaching the intersection at moderate rates of speed. The plaintiff observed defendant approaching the intersection at a time when " nothing would have been gained by earlier observation." The plaintiff had the right of way under the provisions of Chapter 251, Laws of 1929, Section 19, (now SDC 44.0318). Under the facts presented it was within the province of the jury to find that it did not become apparent to plaintiff that defendant would not yield the right of way until such time as an emergency was created; and it was further within the province of the jury to find, under the facts there presented, that plaintiff acted as a reasonable man would act in the face of the emergency. It should be noted that the evidence was sufficient to support a finding by the jury that the emergency was not precipitated by any negligence of the plaintiff. The plaintiff saw defendant approaching at a moderate rate of speed and was entitled to rely upon his right of way under the statute; the emergency was created by the defendant's failure to yield that right of way at a time when the only course of action left to the plaintiff...