State v. Muhs, 10163
| Citation | 81 S.D. 480,137 N.W.2d 237 |
| Decision Date | 15 September 1965 |
| Docket Number | No. 10163,10163 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Alvin Lloyd MUHS, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Dennis R. Padrnos, of Tinan, Carlson & Wuest, Mitchell, S.D., for defendant and appellant.
Frank L. Farrar, Atty. Gen., Robert E. Ruddy, Asst. Atty. Gen., Pierre, S. D., A. H. Shuster, State's Atty., Mitchell, S. D., for plaintiff and respondent.
A jury found defendant guilty of the crime of reckless driving. The court sentence was thirty days in jail and a fine of $500 with the jail sentence suspended. The first assignment of error is based on denial of a motion for a directed verdict of not guilty. A statement of the evidence is therefore appropriate.
It appears defendant was driving in a westerly direction on graveled Highway 36 and approaching the intersection of Highway 10 about 4:15 p. m., November 20, 1963. Highway 10 is a hard surfaced through highway. About fifty feet on the east side is a 'Yield Right of Way' sign. Defendant was familiar with the intersection and this sign, and had traveled the road many times as he lived in that vicinity.
Defendant testified he looked but did not see anybody coming--as he was going to cross the highway the front of his pickup hit the right side, near the rear, of a car coming from the south driven by a Mrs. Schonley. She died at the scene of the accident. Defendant further testified he did not see her until she was two or three feet in front of him. The view to the south was unobstructed for a person driving west on Highway 36 for many hundred feet, and traffic on Highway 10 was visible for a distance varying from 240 feet as defendant admitted or according to other evidence from 500 feet to less than 1,000 feet. There was testimony defendant was traveling 40 miles an hour, and as he approached the intersection slowed to between 20 and 25 miles per hour; that he was having trouble with his brakes, and had them adjusted; but he did have to pump them to make a sudden stop and he didn't have time to pump them; the car was right in front of him before he realized it.
Heretofore SDC 44.9921 defined reckless driving. So far as is apt here, it read:
'Any person who drives any vehicle upon a highway carelessly and heedlessly in willful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving * * *.' (Emphasis supplied)
So phrased, this court in State v. Rossman, 64 S.D. 532, 268 N.W. 702, said the use of the words 'willful and wanton' described conduct which partook to some extent of the nature of deliberate or intentional wrong, following that expression construed in the earlier civil action of Melby v. Anderson, 64 S.D. 249, 266 N.W. 135. The Rossman opinion pointed out reckless driving was in the alternative, i. e.: first, the driving in the 'willful and wanton disregard' phrase, and second, the 'without due caution' phrase and concluded the evidence insufficient to support the conviction. See also City of Sioux Falls v. Poppenga, 75 S.D. 563, 70 N.W.2d 370 and State v. Tjaden, N.D., 69 N.W.2d 272. The 1955 Legislature by Sec. 1 of Ch. 185 amended this section deleting the words 'willful or wanton'. Cluts v. Peterson, 79 S.D. 462, 113 N.W.2d 273. 1
The complaint here charges the offense in the words of the second definition. In discussing the latter, the court in Rossman indicated if a speed violation was present, 'it must also appear that the violation of the statute (speed) was the proximate cause of the accident.' We will first examine defendant's duties as he approached this intersection. Ch. 225, 1961 Session Laws authorizes the designation of
'main traveled or through highways by erecting at the entrances thereto from intersecting highways, signs notifying drivers of vehicles to come to a full stop or to yield and before entering or crossing such designated highways shall be certain that such main traveled or designated highway shall be free from oncoming traffic which may affect safe passage. It shall be unlawful for the driver of any vehicle to fail to comply with the provisions of this section. * * *
'Preferential right of way at an intersection may be indicated by stop signs or yield signs * * *.
With reference to the duty of a driver approaching a through highway protected by a stop sign the court said in Kundert v. B. F. Goodrich Co., 70 S.D. 464, 18 N.W.2d 786, 'It was plaintiff's duty to stop and to make, before and after entering the intersection, observations and to adapt his movements to accord with his own safety'. Defendant was bound to effectively look for and observe the through highway to make certain it was free from oncoming traffic which may affect his safe passage and stop if necessary and yield the right of way as provided in Ch. 225; to proceed without making any observations or to drive into the intersection knowing of the oncoming traffic would be sufficient basis for a finding the defendant drove without due caution and circumspection and in a manner likely to endanger another person or property. Similarly, this court has held in civil actions that it was negligence as a matter of law to fail to stop and keep a proper outlook for oncoming cars. See Rowan v. Becker, 73 S.D. 273, 41 N.W.2d 836, and Vlach v. Wyman, 78 S.D. 504, 104 N.W.2d 817. The only difference between a stop sign and the yield sign is the duty always exists to stop and look effectively for the stop sign and for a yield sign the duty is to slow down, effectively look to see if the highway is free from oncoming traffic, and stop if necessary to yield the right of way as set forth in that paragraph. These are the standards of due caution and circumspection declared by the Legislature. Violation of them was a proximate cause of the collision. Rowan v. Becker, supra.
An Alabama statute contained the same wording as our second phrase. In Kirk v. State, 35 Ala.App. 405, 47 So.2d 283, the court wrote:
'* * * the phrase, 'without due caution and circumspection,' constituting one of the alternative characterizations of reckless driving, means no more than negligence, for if one drives on a highway in such manner, he is guilty of negligence.'
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Rumbolz v. Wipf
...appellant's damages.' Language of similar import was used by this court in Vlach v. Wyman, 78 S.D. 504, 104 N.W.2d 817 and in State v. Muhs, S.D., 137 N.W.2d 237. In Muhs the court in a prosecution for reckless driving premised on Ch. 225, Laws of 1961, said violation of the duty 'to look e......
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State v. Tammi, 18436
...language in both statutes begs the question, "what is the difference?" This Court addressed this very question in State v. Muhs, 81 S.D. 480, 485, 137 N.W.2d 237, 240 (1965) in a discussion of the offense of reckless Much of the uncertainty of the offense commonly referred to as "reckless d......