Zeigler v. Ryan, 7948

• Decision Date: 04 March 1937
• Docket Number: 7948
• Citation: 271 N.W. 767,65 S.D. 110
• Parties: CARL ZEIGLER, Respondent, v. A. B. RYAN, Appellant.
• Court: South Dakota Supreme Court

65 S.D. 110

271 N.W. 767

CARL ZEIGLER, Respondent, v. A. B. RYAN,

Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Meade County, SD

Hon. James McNenny, Judge.

#7948—Affirmed

Atwater & Helm, Sturgis, SD

Attorneys for Appellant.

Dan McCutcheon, Belle Fourche, SD

Attorney for Respondent.

Opinion filed March 4, 1937

(See also, Zeigler v. Ryan 262 NW 200)

RUDOLPH, P. J.

This action arises out of an automobile accident occurring in the State of Minnesota on the 8th day of October, 1933. The plaintiff and defendant are old acquaintances living in Sturgis, SD The defendant contemplated a trip to Chicago, Ill. The plaintiff was desirous of making a trip to the State of Wisconsin, and it was agreed between the plaintiff and defendant that the two would make the trip in defendant’s car with the understanding that the plaintiff was to pay a part of the expenses and do a part of the driving. The trip was made east without trouble and plaintiff left the defendant in Wisconsin. Defendant drove on into Chicago and stayed there about two weeks. While there defendant became acquainted with one Kennedy, who accompanied defendant on the trip back to Sturgis. The defendant and Kennedy left Chicago and picked up the plaintiff in Wisconsin. The party of three left Veroque, Wis., about 2 o’clock in the afternoon of October 8th. The day was foggy and rain was falling. The defendant was driving when the party left Veroque. At a point about twenty-five miles before the place the accident occurred, Kennedy at the request of the defendant took over the driving and was driving at the time of the accident. The plaintiff was sitting in the front seat next to Kennedy, and defendant was in the rear seat. The road over which the car was being driven was black top or tarvia. As Kennedy was driving he started down a hill which was described in the evidence as from four to six hundred feet long. At the foot of this hill the road turned to the right, and on this turn there was a new piece of surfacing which was about one hundred feet long, and described as being “more slippery” than other portions of the road. Kennedy was driving from thirty to thirty-five miles an hour. While driving down this hill Kennedy passed a car which was coming up the hill at a high rate of speed. To avoid a collision it was necessary that Kennedy pull far over to his right-hand side of the road. As Kennedy attempted to regain his correct position on the road the car began to skid. When the car commenced skidding, Kennedy “slapped on the brakes.” The car continued its skidding “a good twenty-five feet,” rolled completely over, and about seventy-five feet from where the skidding commenced struck and broke a telephone pole six inches in diameter. The plaintiff was severely injured. Verdict and judgment were in favor of the plaintiff, and defendant has appealed.

The above facts are without dispute in this record. The trial court instructed the jury that this accident occurring in Minnesota, liability was to be determined under the laws of that state, and, if the jury found that Kennedy was employed by defendant to drive his automobile and that Kennedy was negligent in the operation of the automobile, which negligence, if found, proximately caused the accident, then the plaintiff could recover. These instructions were not excepted to and became the law of the case.

Defendant has presented and argued five assignments of error, as follows: First, Kennedy was not negligent; second, defendant was contributorily negligent; third, defendant assumed the risk of the injury sustained; fourth, plaintiff and defendant were engaged in a joint adventure; and, fifth, refusal of the court to give requested instructions. The case being submitted to the jury without exception to the court’s instructions, the first four assignments necessarily question the evidence and the sufficiency thereof.

We consider first the question of whether there is sufficient evidence in the record upon which to submit the question of Kennedy’s negligence to the jury. From the facts it appears that the accident was due to the skidding of the automobile as it was regaining its correct position on the highway and attempting to make the turn at the bottom of the hill. The mere fact that an automobile skids on a slippery pavement does not in itself constitute evidence of negligence on the driver’s part or render the res ipsa locquiter doctrine applicable. Davis v. Brown, 92 Cal. App. 20, 267 P. 754; Linden v. Miller, 172 Wis. 20, 12 ALR 665; Barret v. Caddo Transfer & Warehouse Company, 165 La. 1075, 116 So. 563, 58 ALR 261; Annotation in 58 ALR 264. As stated in 5 Am. Jur, 654: “The inquiry in cases of skidding is as to the driver’s conduct previous to such skidding. The speed of the automobile prior to the skidding and the care in handling the automobile, particularly in the application of brakes, are factors to be considered in determining whether or not there was an exercise of due care.” Kennedy was confronted with driving on a wet, slippery pavement. He proceeded down the hill at a speed from thirty to thirty-five miles an hour, which speed he was driving when he was forced to give a major portion of the road to an oncoming automobile. There was no obstruction of Kennedy’s view, and the condition with which he was confronted as he drove down this hill including the turn in the road could or should have been observed by him. There was no attempt to slacken the speed of the automobile prior to meeting the oncoming car. According to Kennedy’s own testimony he passed that car going at a speed of about thirty miles an hour, and, when the car began skidding, it was going that fast. Kennedy further testified that when the skidding commenced he “jammed on the brakes.” The jury could readily conclude that driving conditions at the time of this accident were hazardous. Whether Kennedy met these conditions as an ordinarily prudent man would meet them, we believe, must be left for the jury. The fact that the car skidded twenty-five feet, turned completely over, and then struck a telephone pole seventy-five feet away from the point where the skidding commenced was the undisputed evidence before the jury. That the car performed in the unusual manner of skidding and rolling seventy-five feet, with sufficient momentum to break a telephone pole at the end of its journey, is strongly indicative of lack of control and unreasonable speed in view of the surrounding circumstances and condition of the highway, at least it might be so considered by the jury. See Oakes v. Van Zomeren, 255 Mich. 372, 238 N.W. 177.

Whether Kennedy acted in the use of his brakes as an ordinarily prudent man would act under similar circumstances was also, we believe, a question for the jury. Appellant contends that no negligence can be charged against Kennedy for “jamming on his brakes” for the reason that at the time an emergency...