Vlach v. Wyman, 9819

• Decision Date: 20 September 1960
• Docket Number: No. 9819,9819
• Parties: James VLACH, Plaintiff and Appellant, v. Richard WYMAN and R. L. Kepner & Company, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 817

104 N.W.2d 817

78 S.D. 504

James VLACH, Plaintiff and Appellant, v. Richard WYMAN and R. L. Kepner & Company, Defendants and Respondents.

No. 9819.

Supreme Court of South Dakota.

Sept. 20, 1960.

G. E. Bollinger, Woonsocket, Gene E. Pruitt, Acie Matthews, Sioux Falls, for plaintiff and appellant.

Royhl, Benson & Beach, Huron, for defendants and respondents.

HANSON, Judge.

The plaintiff, James Vlach, was injured and his automobile damaged in an intersectional collision with defendants' truck. At the trial defendants moved for a directed verdict at the close of plaintiff's case and again at the close of all the evidence. Both motions were denied and the issues submitted to the jury. In its charge to the jury the trial court included instructions on comparative negligence and the doctrine of last clear chance. The jury returned a verdict in favor of plaintiff in the amount of $800. Defendants then moved for judgment notwithstanding the verdict. This motion was granted and judgment in favor of defendants entered. Plaintiff appeals relying on the doctrine of last clear chance for recovery.

The plaintiff Vlach, age 73, farms north of Artesian, which has been his trading center since 1918. On the morning of November 4, 1958 he drove into town to purchase weekly supplies. He started to leave Artesian about 11 o'clock in the morning by driving his automobile north on Main Street. When plaintiff came to the intersection of Highway 34, which runs east and west, he stopped as close to the highway as he could and looked both ways. He stated he could see east to a point where the highway curves to the northeast, a distance of about 3 blocks. Seeing no vehicles approaching on the highway from either direction plaintiff proceeded into the intersection at a speed of 4 to 5 miles per hour. About when the front end of plaintiff's car crossed the paved portion of the highway it was struck on the right rear by a truck coming from the east. The truck was owned by the defendant, R. L. Kepner & Company, and was being driven by its employee, the defendant Richard Wyman. As a result of the collision plaintiff was injured and his 1954 Ford damaged.

After entering the intersection plaintiff did not again look to the east and did not hear or see defendants' truck before the accident.

State Highway Patrolman Bentley, one of plaintiff's witnesses, testified the view east from the intersection was clear, free, and unobstructed for over 1/2 mile or about 2,900 feet. He also testified the skid marks indicated that at the time of the impact the rear wheels of plaintiff's automobile were 2 feet north of the center line of the highway. Plaintiff's car was 16 1/2 feet long with the back end of the body projecting 4 feet behind the rear wheels. The paved portion of the highway was 23 feet wide. Thus, at the time of the collision plaintiff's car was positioned 2 feet south of the center line of the highway to 3 feet north of the pavement.

The Kepner truck driven by defendant Wyman was loaded with 5 tons of gravel. Wyman had driven the route before and was familiar with Highway 34 as it approached and ran through the town of Artesian. He entered Artesian from the east. He first observed plaintiff's car when the truck was about 150 feet east of the intersection. Plaintiff was in, or just starting into, the intersection. Wyman was then traveling about 25 miles per hour. Plaintiff was traveling no more than 5 miles per hour. Wyman let up on the gas and slackened his speed to 23 miles per hour. Plaintiff continued to slowly cross and as the front end of the car came to the middle of the intersection Wyman started applying his brakes. The truck was then 75 feet from the intersection. Wyman first applied the truck brakes lightly, then harder, and when he was about 40 feet away he commenced to swerve to the left into the south lane. The front end of the truck was almost completely south of the center line when the front right fender and bumper of the truck collided with the right rear side of plaintiff's car. The highway was level, the visibility good, and there was no oncoming traffic. After the impact the truck traveled 35 to 40 feet and left no skid marks. Wyman testified he knew if plaintiff did not stop before he reached the center line of the highway he would be getting himself into a dangerous position and that plaintiff seemed wholly unaware of the approaching truck.

Defendants' truck was proceeding toward the intersection at a lawful speed on a through arterial highway. Plaintiff was on a stop street. Paraphrasing and applying the conclusions reached by this court in a similar case, it was plaintiff's duty, under our law, to come to a full stop before entering or crossing Highway 34 and to make certain that such main traveled highway was free from oncoming traffic which might affect safe passage (SDC 1960 Supp. 44.0321). Apparently plaintiff did not look at all or he did not do so effectively. Therefore, viewing the evidence in a light most favorable to plaintiff, it is our opinion that he was guilty of negligence, more than slight, as a matter of law. Kundert v. B. F. Goodrich Co., 70 S.D. 464, 18 N.W.2d...