Wittstruck v. Lee

• Decision Date: 17 February 1934
• Docket Number: 7347.
• Citation: 252 N.W. 874,62 S.D. 290
• Parties: WITTSTRUCK v. LEE. [a1]
• Court: South Dakota Supreme Court

252 N.W. 874

62 S.D. 290

WITTSTRUCK v. LEE. ^[a1]

No. 7347.

Supreme Court of South Dakota

February 17, 1934

Appeal from Circuit Court, Davison County; A. B. Beck, Judge.

Action by Laurice K. Wittstruck against Howard Lee. Judgment for plaintiff, and defendant appeals.

Reversed.

Hitchcock Sickel & Whiting, of Mitchell, for appellant.

Miller & Shandorf, of Mitchell, for respondent.

CAMPBELL Judge.

On November 1, 1929, somewhat after 5 p. m., plaintiff, driving his Model A Ford roadster in a westerly direction on U.S Highway No. 16 (a graded graveled road, running east and west at the point involved), suffered a collision about two miles west of Mt. Vernon, S. D., with a fifteen-passenger bus owned by defendant and operated by his employee, which was traveling east on the same highway. As a result of the collision, plaintiff's automobile was completely wrecked and he himself was severely injured. Claiming that the collision was caused by the negligence of defendant's driver, plaintiff instituted an action for the recovery of $34,513.15, including the loss of his car, expenditures for hospital, medical, and dental services, loss of wages, and damages for the personal injury. The allegations of the complaint with reference to negligence are as follows:

"(a) That the defendant, by and through his agent and employee, was driving and operating his said large automobile bus at a careless and imprudent speed, and at a greater rate of speed than was reasonable and proper, and without due regard to the traffic on said highway, and at a speed so as to endanger the life and limb and property of the plaintiff, and of others who might be on said public highway.

"(b) That the plaintiff states on information and belief, and so charges the fact to be that immediately before and at the time of said collision, the defendant, by and through his agent and employee was driving his said large automobile bus at a greater rate of speed than forty miles per hour.

"(c) That immediately before and at the time of said collision, the plaintiff was operating and driving his said automobile in a westerly direction on the north side of the center line of said highway, and the defendant, by and through his agent and employee, and in violation of law, carelessly, negligently and recklessly, was driving and operating his said large passenger automobile bus in an easterly direction on the north side of the center line of said highway; that the defendant did not drive or keep his said large passenger automobile bus upon his right half of said highway and he did not pass to the right of the plaintiff's automobile, nor did he give or yield to the plaintiff at least one-half of the main travelled highway, but on the contrary he operated and drove his said bus on the defendant's side of said highway, towit: On the north half of the travelled portion of said highway.

"(d) That immediately before and at the time of said collision the defendant was guilty of further negligence in that he, through his agent and employee, unlawfully drove and operated his said large passenger automobile bus with the front windshield and all the side and back windows of said bus, except a small space on said windshield covered with dirt and mud, so as to obscure the vision of the driver of said bus, and that by reason thereof, the said driver was unable to see clearly the said road and any one traveling thereon."

Defendant interposed a general denial and pleaded contributory negligence, and upon the issues so joined the case was tried to a jury, which returned a verdict for plaintiff in the sum of $12,000. From the judgment thereon entered and from a denial of his motion for new trial, defendant has appealed.

Appellant maintains that the physical facts and credible direct testimony demonstrate that appellant's driver was in the exercise of due care at the time of the accident and that the negligence, if any there was, was upon the part of respondent, and that the evidence is insufficient to permit a jury to find either that appellant's driver was negligent or that respondent was free from contributory negligence. In this connection appellant urges that there is no credible evidence that appellant's driver was operating the bus at the time of the accident at a rate of speed in excess of forty miles per hour as alleged upon information and belief in the complaint. On this point we think appellant is quite correct. There is no such evidence. Of course, however, the mere fact that the bus was not being operated at a speed in excess of forty miles per hour would not, standing alone require a finding that it was being operated without negligence. We have studied the record with care. As generally happens in cases of this kind, the testimony of the different witnesses is inconsistent in many respects. In addition to testimony as to the physical facts, such as the condition of the car and the bus after the accident, the wheel tracks in the road, etc., there was testimony concerning the accident, or attendant circumstances immediately preceding or following it, by respondent himself (who was alone in his car at the time); by appellant's driver who was operating the bus at the time of the accident; by another employee of appellant who was making the trip with the bus as relief driver; by one Lowe who was a passenger in the bus at the time; by one Stevens who was driving his team and wagon west on the highway in question and who was upon the highway some distance west of the point of the accident when it occurred; by one Dowling who had a wagon standing upon the south side of the highway from which he was unloading gravel at a point west of the place of the accident but east of the location of Stevens and his wagon; by three men constituting the crew of a caterpillar tractor and grading outfit which was moving east along the south side of the highway and was some little distance east of the point of the accident when it occurred; and by one Teesdale who was driving his own car west upon the highway in question some little distance to the rear of respondent's car, being some eighty rods east of the point of the accident when it occurred. To undertake in this opinion to recite and analyze the testimony of all these witnesses would prolong the opinion unduly and would not be particularly helpful. Some little time prior to the collision respondent's car (going west) and appellant's bus (going east) were both traveling along the north side of the highway in such fashion that if each vehicle so continued, a head-on collision would result. As to the exact distance between the vehicles at this stage of the matter and the speed of each, the testimony is conflicting. The respective contentions of the parties as to the situation from this point forward may be stated broadly and without effort in detail about as follows: Respondent maintains that appellant's driver wrongfully and negligently continued to drive east on the north side of the highway; that there was not room for respondent, by turning to his right, to pass the bus and the grade was so steep that he could not abandon it and pull down into the ditch to his right; that he somewhat slowed his car and the vehicles approached nearer and nearer until he (respondent) reasonably believed collision was unavoidable if he did not do something and therefore he swung to his left, toward the south of the road, and that just after he did that the bus swung to its right, also toward the south of the road, and the vehicles were then so close that respondent could not pull back to the north side of the road and they collided south of the...