*1
corpus
for an
is not
substitute
appeal.
of
A writ
habeas
judgment
irregularities
render
which
appeal and errors
inquired into. State ex
merely
be
not void cannot
voidable and
282,
Jameson,
N.W.2d
v.
Horn
rel. Medicine
Ruffing
Jameson,
The
throughout
county,
any particular
the limits of the
but extends
Egan,
442, 45 S.Ct.
All the concur. BOTHERN, al., Appellant Respondents v. PETERSONet
(155 308) (File 1967) Opinion filed December No. 10388. *3 Matthews, Pruitt, Falls, Willy, Pruitt Gene E. Sioux McCann & Martin, McCann, Brookings, appellant. plaintiff W. R. and for & Smith, Wirt, Evans, Falls, Davenport, Lyle & Sioux Hurwitz J. Schulz, Brookings, respondents. F. Alvin for defendants HANSON, Judge. wrongful H. Bothem re- death of William
This action for the defendants, Dairy and its truck Western sulted in a verdict for notwithstanding judgment driver, Darrell A motion for Peterson. for a new trial was denied. On verdict or in the alternative plaintiff guilty appeal primarily defendants were contends cause, proximate as a matter of law which was the concurring cause, or a between me collision automobile riding milk in which decedent was and defendant's truck. reviewing obligated In such issues this court to view the light most favorable to the verdict. Hanisch v. Body, Accordingly, appears N.W.2d 924. it decedent, Bothern, years H. William was 45 old and resided on Brookings. Shortly a farm miles eleven south after noon on riding September 1965 he left his farm to attend a sale in a operated Buick automobile owned and Clarence A. Davis. point While Davis was aat about four miles north White, Dakota, Highways South at the intersection 25 and Dairy the Buick collided with a Western milk truck owned defendant, operated Darrell Peterson. The accident re- subsequent sulted in the immediate death of Davis and the death of Bothern.
Highway asphalt 25 is a surfaced road 22 feet north/south signs protected by stop wide on the east and west. graveled running a narrower road east and west. The *4 right angled.
intersection corners are rounded rather than The speed Highway m.p.h. limit on 25 is 60 Dairy cooperative a
Western farmers' located at Clark- field, Minnesota, having including several truck drivers defend- ant, Peterson, daily dairy Darrell who collect milk from farms in its area. Peterson's milk route extended into South Dakota. 3,200 gallon He drove a 1964 truck GMC with a milk cooler bulk long tank. It was 26 feet with double sets of rear dual wheels weighed, accident, 35,000 with its load at the time of the equipped headlights, taillights, lbs. It was with two four lower taillights, lights upper side, three two side on each and five mark- lights top er on of the cab. driving
Shortly before the accident Peterson was his truck Highway foggy, day. south on Visibility 25. It was a wet varied 88 lights and the were on feet. All the truck
from 150 feet working. driving wiper Peterson was between was windshield Highway approached per As the 25 miles hour. he indicating signal light left turn. on his intersection he turned was, approaching no cars. There He looked south and saw however, stopped pickup at the truck driven David Hicks sign stop side of the intersection. When Peterson on east pickup started from 125 to feet north of the intersection the was beginning Highway 25. Before his left out and headed south on again per down to 5 miles hour and looked turn Peterson slowed approaching He south and saw no vehicles. was right-hand turning left until in his lane and did not start Highway point proceed could onto 44. reached where he the Davis Buick Peterson started his left turn he saw as Just coming It was north in about 150 feet south of the intersection. traveling Highway 70 to Buick was the east lane The lights per saw the Buick and had no on. When he miles hour stopped stepped The truck north Peterson brakes. facing Highway 44. into the It was intersection headed curve southeasterly in end the truck the east lane and front in west 25. The Buick hit the rear end lane with such it was a total loss. It skid front of the truck force extending of 129 marks the intersection and for a distance across asked south of the intersection. After the accident Bothem feet get whiskey in the Buick. two different witnesses rid of bottles whiskey They were afterwards found in refused bottles evidence, investigating There no the Buick officers. however, drinking. that either Bothem or Davis had been pre correctly
The trial court instructed any sumption applied to absence of of due care decedent guest Also, negligent part. evidence of conduct on his Buick, negligence Davis, imputable of the driver contributory pre to him. issue of therefore not sented. *5 negligent a mat defendant was as
Plaintiff contends (1) operation as Driv ter law the milk truck follows: in his (2) ing wrong failing highway, the of the maintain on side (4) (3) failing lookout, right-of-way, yield the and mak- proper ing Ordinarily, questions improper turn. an jury proximate for determination. cause are factual issues dispute Only or are of facts are not in such nature rea- where the they questions of not differ do become law sonable men could Christensen, Dwyer v. for the court. N.W.2d Bogh Beadles, S.D. 342. A.L.R.2d v. 107 N.W.2d is substantial credible evidence that Peterson There proper truck in the lane traffic. The could was turning properly did not left until was at find he commence pictures Highway curve of 44. The evidence the intersection in turning position of after show the the truck the collision. The right highway. were still in the half of the Peter rear wheels If traveling wrong in lane son had been of traffic at least of the truck left rear wheels would have had to the east be in highway center side of the line. Peterson,
There is further substantial that proper keeping highway. lookout for other users of the sign pickup stop He observed at and waited for toit proceed south enter and 25. He looked to the south again approached as he the intersection and as he commenced turning fog, lights speed, left. Because and lack of Buick could be seen. Peterson was entitled to turn left at doing proceeded In slowly the intersection. so he and looked lights highway. for other users All of the truck were on including signal indicating the directional a left turn. He was obligation yield right-of-way under no to a vehicle which fog approaching could not be seen the intersection in circumstances; lights. -speed at an unlawful Under such Bogh right-of-way Beadles, forfeited. Peterson concedes he did not make a left turn in strict com- pliance provides with SDC 44.0316 which the driver of a "intending to turn approach vehicle to the left shall such inter- right lane for section traffic to the of and nearest to the turning highway center line of the pass beyond shall intersection, passing closely center of the as practicable *6 90 Instead, turning right vehicle to the left." such thereof before turn left of the intersection apparently made a "short-cut"
he center. justification, legal violation, excuse or without
A negligence safety per constitutes reasons of for a statute enacted 572; 428, Hyronimus, S.D. 136 N.W.2d Al 81 v. se. Zakrzewski 529; 637, Jelden, Ottenbacher, N.W.2d Roth v. S.D. 116 79 v. bers 271, 20; Hahn, 40, 122 v. N.W.2d Grob S.D. 118 80 Milling Co., 362, 460; v. Tri-State and McCleod N.W.2d following Ottenbacher excusable In Albers v. 24 N.W.2d recognized: regulations were of traffic violations (1) compliance with the statute Anything would make (2) Anything the driver has no control over which impossible; statute; (3) position violative of the An places in a his car which making by reason of which emergency driver's own not of the statute; (4) specifically An excuse fails to observe provided statute. length truck and narrow width of of the
Because
impossible
for him to turn
it was
testified
44 Peterson
right
rig
In order
movement.
in one unbroken
of center
get
necessary
right
"to
as close to
would be
of center
it
turn
up
possible
point
drive
to the shoulder
the center
go
part
up
of a turn to
and make another
then back
road and
disputed
was for the
to deter
not
and it
This was
east".
turning left,
under
the cir
not
the manner
whether or
mine
justified.
cumstances,
jury could
or
The
have found
was excused
comply
impossible
physically
for defendant
it was
backing up.
Dairy,
stopping
Birtcherds
Inc.
statute without
Randall,
Even plaintiff prove such violation the burden was fiable proximate or a concurrent cause of the accident. cause turning jury may manner of have found the a con tributing proxi the accident causative factor and was the sole of Clarence A. Davis mate result high fog lights. speed rate of in the his Buick at Par Township County, Rapids in Minnehaha ham v. Dell S.D. 548; Braun, 216; S.D. Series v. 113 N.W.2d Gastian, Mo.App., Taylor-But 261 S.W.2d Smith Lix v. Co., Wis. 190N.W. 999. ton
Finding plaintiff's in no error the denial of motions or in judgment any jury appealed of instructions to the the from is affirmed.
HOMEYER, J„ JJ„ RENTTO, and ROBERTSand P. concur. (dissenting). BIEGELMEIER,Judge Ottenbacher, 1962, 637, 529,
Albers 116 N.W.2d good requiring held violation of the statute to brakes be in work- ing legal negligence order without excuse constituted in itself -submitting jury, in and the court erred that to issue and in. Hahn, 1963, 271, 460, passing Grob v. 122 N.W.2d car- a negligence contrary an to at intersection statute was as a mat- injur- causing plaintiff's ter of law and a substantial in factor requiring neg- a directed verdict ies for defendant who had also signal. ligently turned left without The facts as to defend- negligence testimony. here ant's are from his own He turned sign stop over 20 feet north of the which was two feet north (and left) Highway 44 or over 30 feet north to the the cen- ter the intersection. If this an was automobile 18 or 20 feet long we would declare this as a matter of law with- out hesitation and direct that it be an issue for the to only by determine. Defendant is to be saved from this his claim impossible for to it was him make left turn with his truck required by compli- SDC 44.0316 and thus is excused from therewith. ance why
There are two reasons this contention cannot be sus- "The or will tained. fact facts which excuse violation of a ordinance, however, things statute or must result from causes charged beyond person the control with the violation." 65 Negligence 19(8),pages 640-641where our § Albers C.J.S. case cited Did defendant's twice. evidence meet this test? A true Gigliotti application York, Chicago in this rule is v. New & 447, 174, Co., where App. N.E.2d Ohio St. Louis R. crossing. signal by from the required 80 rods whistle statute 33 feet was sounded from the whistle was The evidence standing engine yard in a waterworks highway was while the spur was not dropped cars. railroad some it had where never, engine never, long and could be was and the rods crossing. performance impossible There far from the applied. could not be and the statute Herron, 1965, 240 Or. P.2d McConnell v. Jones, Or. 319 P.2d court as Nettleton v. from the same question final cited Albers. The our court in which proof the offered whether court considered McConnell up kind of which would constitute measured statute, keep there —failure brakes lawful excuse violate good working As the offer to show driver order. hit crossing *8 bump a ditch which caused his brakes to fail a court said: only party impossi- show hold that unless can
"We regardless degree care, bility compliance, of the comply his with the statute was or that failure caused control, over which he had no circumstances he has proof, An tendered a valid excuse. offer of be re- excuse, which, possible must as a contain facts ceived true, compliance that if would show statute was regardless degree care, impossible, clearly prevented by wholly beyond par- circumstances ty's control. No such facts were in the tendered case at (Emphasis supplied) bar." testimony not entitle him to
Defendant's does this excuse. testified, As had this turn he made "Several hundred times" (after gave opinion this truck and the trial court had contrary sheriff) similar denied it was impossible for him to make the turn around the center of the true, requires. inability, as statute intersection This if making and, permitted, day if day of his own excuses him after making legal conversely approves from turn —or and condones exemption from statute protec- a constant and denies its using lawfully highway. üon to others No one should be permitted operated a motor that to drive vehicle cannot be highways required by inability statute —be it as to legal turn, lights, make a brakes or etc.'—and claim excuse. exhibits,
Secondly, photos plat repudiate opin- expressed. They physical proof ion he are he could have made parked to the south of the turn three cars in the intersection Exhibit exhibit shows the tracks of one of the autos making only part almost a U-turn on of the intersection. These ,to require reasons me dissent. BROS.,
BARON INC. DAKOTA, NATIONALBANK OF SOUTH SIOUX FALLS (155 300) (File Opinion 1968) January 4, Nos. filed