180 N.W. 71 | S.D. | 1920
'Plaintiff sued to recover damages which he claims to have suffered as a result of an injury received when a
Plaintiff was riding a bicycle along the north side of First avenue in the city of Aberdeen, and was going in a westerly direction. Defendant was driving his automobile along the south side of said avenue and was going in an easterly direction. They approached one another while traveling between 'Mam and Lincoln streets. One-half way between these streets and on the south side of First avenue is an alley extending in a southerly direction through the center of the block which lies between Main and Lincoln streets. It was while plaintiff was attempting to cross First avenue in order to pass into the said alley that he collided with defendant’s auto, the fender on the south side of the auto striking the very rear end of the bicycle. It is plaintiff’s contention that defendant was negligent in his driving of said auto and that such negligence was the proximate cause of the injury. Defendant contends, and urged upon his motion for directed verdict, that the evidence wholly failed to show any act of negligence charged by plaintiff, that such negligence was riot the cause of the injury, and that, under the undisputed evidence, plaintiff was guilty of contributory negligence. It is plaintiff’s contention that, owing to the minority of plaintiff, a child of 12 years of age at the time of the accident, the question of contributory negligence was properly submitted to the jury.
As these parties were approaching one another, they each observed the other until about the time that the plaintiff turned to cross into the alley. Plaintiff admitted seeing the automobile approaching, but testified that he thought he had ample time to cross in front thereof, and that, as he started to make the turn he shifted his attention to the running of the bicycle and did not observe the auto' from that time until he was directly in front thereof. Defendant, while admitting that he saw the plaintiff on the bicycle coming westward on the opposite side of First avenue, testified that he did not see him at the time plaintiff made the
“Where .reasonable men might draw different conclusions from undisputed evidence, the question of negligence or contributory negligence is one of fact for the jury, and it is. only where the evidence is without material conflict and is such that all reasonable men must draw the same conclusion therefrom that the question is for the court.” Whaley v. Vidal, supra.
Upon the motion to direct a verdict the court was bound to resolve the evidence most favorably to plaintiff. Under this rule, what wiere the facts which the court was bound to assume to be undisputed when it was called upon to determine whether there whs any issue to go to the jury? What seems to us to be the all-important facts were that plaintiff did not know that the auto was traveling at such a speed that it -would come up to him as quick as it did; that he thought he could cross ahead of it; and that the auto was traveling mjuch faster than he thought it was.
Of course, it must be conceded that a boy of 12 years of age, of ordinary intelligence — and we must presume this boy was possessed of such intelligence- — ‘would fully comprehend the certainty of personal injury if he should collide with the.auto. If the ability of plaintiff to recognize the above fact had been the only thing to be determined by the court or jury, the court should
It must be conceded that the record presents a very close question; yet if there be a doubt in our mind we must assume that there was at least a doubt in the mind of the trial court, and the existence of such doubt, if any, gave full warrant to such court to submit this question to the jury.
The judgment and order appealed from are affirmed.