Zeller v. Pikovsky, 8078

• Decision Date: 07 March 1938
• Docket Number: 8078
• Citation: 66 S.D. 71,278 N.W. 174
• Parties: OTTO ZELLER, Respondent, v. HYMAN PIKOVSKY, Appellant.
• Court: South Dakota Supreme Court

66 S.D. 71

278 N.W. 174

OTTO ZELLER, Respondent,

v.

HYMAN PIKOVSKY, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. Howard Babcock, Judge #8078—Affirmed Williamson & Williamson, Aberdeen, SD Churchill & Benson, Huron, SD Attorneys for Appellant. George H. Fletcher, Frank L. Sieh, Aberdeen, SD Attorneys for Respondent. Opinion Filed Mar 7, 1938

ROBERTS, Presiding Judge.

Plaintiff brought this action to recover damages for personal injuries and for property damage which he claims were caused by the negligence of the defendant. The verdict of the jury was for the plaintiff and judgment was entered thereon. A motion for new trial was overruled, and defendant appeals.

On March 4, 1935, at about 3 o’clock in the afternoon, plaintiff was driving his Ford sedan west on Highway No. 10 near Lake City. Defendant was operating a truck, traveling east. The automobile in which plaintiff was riding collided with defendant’s truck. The grounds of negligence alleged are that the defendant was driving on the left or wrong side of the highway and that he failed to keep a proper lookout for approaching vehicles.

The testimony is conflicting. Plaintiff testified: “When I first saw this truck, he was coming over the top of a hill. He was traveling east, toward me. When I saw him coming, I took my foot off the throttle and slowed up. He did not get over on his side of the road at all. He kept right on coming. Then I looked in the ditch and that was deep and rocky, and I reached for the door and tried to dodge him so he wouldn’t hit me, and I had my foot on the running board and the door of the automobile hit me on the head.” Defendant testified that when he saw the car approaching from the opposite direction he turned to the right and was on his right-hand side of the highway when the collision occurred; that defendant turned to the left and struck the left side of the truck.

Defendant contends that plaintiff was negligent as matter of law because he did not sound his horn or stop his car after having observed defendant’s truck approaching him on the wrong side of the highway and in turning his car to the left. In determining this question we do not consider conflicting evidence, but view the evidence in the light most favorable to the plaintiff. Viewing the evidence as this rule requires, we find that the record discloses that the day was foggy and the visibility at times was limited. While driving at about 20 miles an hour on the extreme right of the highway, plaintiff approaching a hill saw defendant’s truck coming over the crest of the hill. Defendant was driving on his left-hand or wrong side of the highway. Plaintiff lessened his speed, looked to the right, and was unable by reason of obstructions to turn into the ditch along the highway. Shortly before the collision defendant turned his truck to the right and plaintiff swerved to the left. The right front wheel of plaintiff’s car collided with the left front wheel of defendant’s truck and the front of plaintiff’s car was thrust by the impact to the southeast over the middle of the highway.

Section 12, c. 251, Laws 1929, provides: “Drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other at least one-half of the main traveled portion of the roadway as nearly as possible.”

Plaintiff was driving on the extreme right of the highway and was in a situation where it was impossible on account of the condition of the ditch to his right to turn any further in that direction. Under these circumstances the statute did not impose upon him the duty to turn further to the right to avoid collision. It seems to be the contention of the...