235 N.W. 502 | S.D. | 1931
This is an action to recover damages for personal injury received in an automobile accident. Plaintiff was driving south on Highway No. 16 when one of his tires became flat and he stopped upon the road to repair the tire. He stopped on the right side where the road -was straight for a half mile or more to the north and equally straight and clear for a considerable distance to the south. The time was about io o’clock at night on the 5th of July, so late in the evening that lights were required. His car was a Model 1915 Ford, equipped -with lights operated from the magneto so that he could have no- lights unless the motor was running. He had two headlights and one. spot light, the spot light being upon the left and so adjusted as to throw light upon the fender. He had no rear light. The engine was running at the time of the accident and the lights above referred to were shining. Plaintiff was immediately in front of the car while making the repair and while so- located he noticed a car coming from the north and two cars coming from the south, all with headlights. The car coming from the north belonged to defendant, and as defendant approached plaintiff’s car, the cars from the south had advanced so that the passing of the last car from the south and defendant’s car occurred near where plaintiff’s car was standing. Defendant says as he advanced he was blinded by the approaching car from the south and did not notice plaintiff’s car in time to
The assignments cover certain instructions given which we have examined in connection with the entire charge and have reached the conclusion that there was no prejudicial error in the instructions.
The principal question is presented on motion for a directed verdict, the contention being that upon the facts as they appear, plaintiff was conclusively guilty of contributory negligence barring his right to recover.
Tire verdict of the jury has determined the negligence of defendant, and what is further said must be understood in the light of defendant’s proven negligence. Except in cases where defendant has been guilty of willful, wanton, and reckless conduct, as in Carlson v. Johnke (S. D.) 234 N. W. 25, where he may be liable for such conduct irrespective of plaintiff’s negligence, it may be conceded that notwithstanding defendant’s negligence, if plaintiff’s negligence caused his injury, or materially contributed thereto, he cannot recover. No question of willful, wanton, and reckless conduct of defendant is here involved. Whether or not plaintiff was guilty,of contributory negligence causing the injury or materially contributing thereto was submitted to the jury and determined in his favor. This determination is final, unless, as contended by appellant, respondent was guilty of contributory negligence as a matter of law. Appellant contends that inasmuch as the law requires a red rear or tail light to be displayed on all automobiles while on the road after dark, the admitted failure of respondent to display such light on his car conclusively establishes his negligence, leaving nothing for the jury’s determination. Appellant’s position overlooks the fact that a failure to display a red light on the rear of a car may be conclusively negligent and yet no injury result therefrom. The question is: Did such negligence (admitting it to be negligent) cause or contribute to the injury. We have no hesitancy in saying the law requires the red light as
' Appellant’s contention that respondent was conclusively guilty of contributory negligence by not stepping out of the way of the car before he was struck seems to have more merit, though it is given much less attention in the argument of counsel. Respondent was injured by being in front of his car when it was struck and moved forward against him. Had he stepped aside to-the edge of the road, he would have suffered no personal injury. No damage is sought for injury to the car. The claim is confined to damages for injuries to his person. It seems plain that one upon a highway for any purpose must use some care to avoid injury from traffic thereon. It is the function of a highway to furnish a safe and convenient place for travel. Conceding that the temporary use of a highway for making an emergency repair to a vehicle is a proper use, it is nevertheless a partial obstruction to traffic engaged in the normal use of the highway, and it is the duty of one so engaged to obstruct the traffic as little as conveniently possible and not to unnecessarily endanger others. And he must keep a reasonable lookout to avoid injury to himself or property. Nothing less can justify such use of a highway. By lighting the lights he had, respondent may have done all that he could under the circumstances to warn others of his presence, but that did not excuse him from keeping a lookout to avoid injury from moving traffic. Had respondent watched appellant’s car as it approached with headlights plainly visible, there would have been plenty of time for him to step out from in front of his car after it became apparent that a collision from the rear would occur or was likely to. occur. To remain directly in front of the car when a rear-end collision imminently impended was gross negligence. Any prudent
The judgment and order appealed from are reversed, with directions to the trial court to- dismiss the action.