Kuper v. BetzerKuper v. Betzer
This wаs a suit for damages for personal injuries alleged to have been caused by the negligence of appellee, defendant below. The trial judge directed a verdict for defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law. Whether there was error in this direction is the principal question presented.
The plaintiff, appellant herе, was injured in a collision between the automobile, a Ford, in which, in the rear seat between two other persons, she was riding, and an automobile, a Chevrolet, driven by defendant. The collision occurred in the City of De-Smet, South Dakota, at the intersection in that city of State Highway No. 25, running
The plaintiff in her petition charged that defendant was negligently driving his automobile at an excessive rate of speed. There was evidence that he was driving at a speed of at least fifty miles an hour. It was conceded by appellee at the oral argument in this court that there was a sufficient shоwing of defendant’s negligence to make an issue as to that matter for the jury.
Since the learned trial judge directed a verdict for defendant for that, as he thought, contributory negligence conclusively was shown, the facts in that connection must be stated fully, with all conflicts in the testimony resolved in plaintiff’s favor. Gunning v. Cooley,
We set out now in haec verba a part of the testimony of the driver:
“Q. What did you do when you saw the stop sign ? A. I stopped.
“Q. Did you bring the car to a full stop? A. Completely stopped.
“Q. Did you look then to Highway 14? A. I looked both ways.
“Q. Did you see any car approaching? A. Not a car.
“Q. Well, what did you do then? A. I put it in second and started across.
“Q. Whereabouts were you on this intersection when you noticed the defendant’s car for the first time ? A. I wаs just across the center of the pavement, across the highway, just across the yellow line.
“Q. Where was he coming from? A. He was coming from the east and just came that quick.
“Q. Have you any way of stating approximately how far away he was when you first saw him? A. Just about on me that quick I could not tell you exactly.”
We set out also certain of the testimony of the plaintiff. The first question set out is with rеference to the stop sign immediately south of Highway 14 and to the conduct of the driver.
“Q. Did he stop? A. Yes, he did.
“Q. Did he come to a full stop? A. Yes.
“Q. Did you look to the right on Highway 14? A. Yes.
“Q. Do you know, roughly, how far you can see to the right or to the east on Highway 14 at that point ? A. Well, I could see some distance.
“Q. Did you see any car coming? A. Well, I didn’t see the car until just right after we started out, and it was not more than just a half second it was upon us. It just hit us that quick.
“Q. You were out in the intersection befоre you saw the other car? A. Yes.
“Q. Do you have any idea approximately how far away it was when you saw it the first time? A. No, I could not say just how far it was away. Because I no more than seen it than it was upon us just that quick.”
The plaintiff further testified :
“Q. Can you tell the jury when you stopped at the stop sign at the southeast corner of the intersection of Highways 25 and 14, when you looked to the east on Highway 14, about how far you could see? A. That is when I could see 200 feet.
“Q. Now, when you got into the intersection can you tell the jury approximately how far away the Betzer car was when you saw it for the first time ? A. It was just a short distance.
“Q. Can you tell that in feet? A. I should say about thirty feet.
“Q. Was it coming fast? A. Yes. It was such a sort distance and it was coming so fast I could not say exactly 30 feet, but*844 the car came so terrible fast I could not tell the distance exactly.”
On cross-examination the plaintiff testified:
“Q. And you noticed at the stop sign, as you have sworn here, that- all you could see was about 200 feet. You noticed that, did you? A. Yes.
“Q. So, of course, as you went on to the intersection you kept on looking to make sure that nothing would be' coming, didn’t you? A. Yes.
“Q. As you entered the intersection you, of course, looked again. That is right ? A. Yes.
“Q. And you were not able to see anything then ? A. No.
“Q. That is, when you gоt right up to the edge of the intersection and when you looked to the east, there was no car in sight at that time ? A. No.
“Q. You looked carefully, did you? A. Yes.
“Q. And you knew that if there was a car coming, that the thing to, do was to warn the driver, didn’t you? A. Yes.
“Q. And if you had seen a car coming you would have warned the driver? A. Yes.”
Effect of Physical Facts.
1. Obviously if this testimony of the plaintiff is accepted, and it must be unless in a situation we shall presently discuss, the plaintiff not only is not shown to be guilty of contributory negligence, but her innocence of contributory negligence is clear. The. contributory negligence charged against her was that she should have seen the approaching car and should have warned the driver. 'The uttermost limit of her duty, however, was to warn the driver if she saw a car approaching — but, although she looked as the Ford entered the intersection, she did not see the approaching car until it was within 30 feet.
The jury of course might not have believed the plaintiff’s nor the driver’s testimony. Very probably the trial judge did not believe all their testimony and he had every opportunity to observe the witnesses and to apply to their testimony the established tests. Even a reading of the cold record leaves us in great doubt as to whether the plaintiff’s or the driver’s testimony, in the excerpts we have set out, in all respects is true. But neither this court nor the court below are the judges of the credibility of the witnesses. That function is the jury’s in a case tried to a jury. Elzig v. Gudwangen, 8 Cir.,
Of course the learned trial judgе had the rule we just have stated fully in mind. We assume he acted pursuant to an exception to the rule. (We say again as often we have said before that we welcome explanations by trial judges of their important rulings, explanations dictated into the record at the time rulings are made or embodied in a memorandum subsequently filed: such explanations frequently supply reasons оf sufficient weight to turn the scale when doubtful points are argued in this court.) We assume the trial judge regarded the physical facts as inconsistent with and negativing the oral testimony and that he was actuated by the principle that, in ruling a motion for a directed verdict, the court should disregard inherently impossible testimony such as testimony “in conflict with indisputable physical facts.” 64 Corpus Juris 322; Budaj v. Connecticut Co.,
One of the three cases is Pigeon v. Massachusetts Northeastern Street Railway Co.,
The facts in Mertens v. Lake Shore Yellow Cab & Transfer Co.,
Pettera v. Collins,
These cases illustrate the'reasonable rule that, if the indisputable physical facts are inconsistent with oral testimony, it is the duty of the trial court to disregard that testimony, in determining whether a question shall be submitted to the jury. But what indisputable physical facts are shown by the record here? There are only two which are material: (a) The fact of the collision in the northeast quarter of the intersection, just over the center line, is one. (b) The fact that after a person, going north, has passed the south line оf Highway 14 he has a clear view eastward along that highway for mohe than 500 feet is the second. From these two physical facts this conclusion necessarily follows: One looking east from an automobile moving north at the rate of ten miles an hour toward the point of collision, if he had looked, must have seen an automobile moving west on the intersecting street at a speed оf fifty miles an hour. When the northbound automobile was ten feet from the point of collision the westbound automobile was fifty feet from the point of collision and in plain sight. When the northbound automobile was twenty feet from the point of collision the westbound automobile was 100 feet from the point of collision and in plain sight to one looking 100 feet to the east. When the northbound automobile was thirty feet from the point of collision the westbound automobile was 150 feet from the point of collision and in plain sight to one looking 150 feet to the east. This conclusion also follows: one looking east from an automobile moving north at the rate of five miles an hour toward the point of collision must have seen an automobile moving west on the intersecting street at a speed of 50 miles an hour. When the northbound automobile was 10 feet from the point of collision the westbound automobile was 100 feet from the point of collision and in plain sight. When the northbound automobile was 20 feet from the point of collision the westbound automobile was 200 feet from the point of collision and in plain sight to one looking 200 feet to the east. When the northbound automobile was 30 feet from the point of collision the westbound automobile was 300 feet from' thé point of collision and in plain sight to one looking 300 feet to the east.
Cеrtainly ndw the duty of the plaintiff, which was to use ordinary care for her own safety, did not require her to look to the east either at a point 30 feet from the point of collision or at a point 20 feet from the point of collision or at a point 10 feet from the point of collision. She was not the driver. She could rely on the driver and was not required to look at all. In re Hill’s Estate,
¡¡Q * * * when you got right up to the edge of the intersection and when you looked to the east, there was no car in sight at that time ? A. No.”
If now we hold the plaintiff to this answer, which was put into her mouth by a most skilful cross-examiner, we have her
If Physical Facts Overcome Testimony.
2. If, however, we say the plaintiff’s testimony is contradicted by the physical facts, what then do we have? Plaintiff testified (a) that she looked and (b) saw nothing. If doubts are resolved in plaintiff’s favor, it is not element (b) that must be rejected but element (a). We shall say, the plaintiff did not look, her testimony to the contrary notwithstanding. But she was under no duty to look. Her failure to look, therefore, could not constitute contributory negligence.
If we do not resolve doubts in plaintiff’s favor, if we say it is element (b) in her testimony that shall be rejected, what then do we have? She looked and saw and did not warn. But do such fаcts conclusively show contributory negligence ?
If the automobile in which plaintiff was riding was moving ten miles an hour it was moving 14.6 feet per second. On this hypothesis, in two seconds after she saw the westbound automobile the collision occurred. Is it not reasonable to say that one in plaintiff’s situation, even if we attribute to that person the calmness of a scientist in his laboratory, would, after hе discovered the impending danger, first seek to discover whether the driver also was aware of it. For if the driver was aware of the danger the worst thing anyone could do would be to startle him with an outcry. And when he had discovered, if he did discover it, that the driver was oblivious to his danger, then the passenger must decide whether an outcry would have the effect of causing the automobile to be brought to a stop in the very path of danger. And this decision must be made and acted on in two seconds ! Indeed it must be made and acted on much more quickly. There must be time left after a warning for the driver to hear it, to comprehend it, to turn and look for himself that he might know exactly the nature of the threatened danger, to act upon the danger observed either by stopping or by -spеeding up. Shall we say the plaintiff had one second in which to decide what to do and then to make an outcry ?
Let the reader of these lines take out his watch and observe the second hand. One of these words cannot be written in a second, two of them cannot be spoken in a second. We think it is a mistake then to say conclusively that a woman, a passenger in the back seat of an automobile, is guilty of contributory negligenсe because she was mistaken in observations and decisions made in one second of time! Or two seconds 1 Or three seconds! A determination as to-the existence vel non of contributory negligence must, under such circumstances of sudden and unexpected peril, be made from the standpoint of the actual, active situation-which surrounded her in the limited time she had for observаtion and, thereafter, decision.
3. We are unable to escape the conclusion that reasonable men might differ as to whether plaintiff was guilty of contributory negligence. The issue should have Jieen submitted to the jury. It follows that the judgment must be and it is reversed and the case remanded.
Notes
It is interesting to study the argument by which appellee seeks to prove plaintiff was guilty of contributory negligеnce. We take from the brief the several steps in that argument. Step I. Plaintiff testified she looked to the east when the Ford entered the intersection. Step 2. If she did look, she must have seen the approaching Chevrolet. Step 3. All plaintiff needed to do was to cry out —“Here comes a ■ car.” Step 4. The driver testified he could have stopped the Ford in three feet. Hence if when the plaintiff looked as the Ford entered the
But the Ford was traveling, after it entered the intersection, at the rate of approximately 10 miles an hour (from 8 to 10 was the driver’s testimony). If the speed was 10 miles an hour the Ford was moving 14.6 feet per second. But appellee contends in his brief that from the point where plaintiff looked to the point of collision was 30 feet. That distance would be covered in two seconds! It takes nearly two seconds to speak the words appellee thinks plaintiff should have uttered — “Here сomes a car-.” Before her last accent had been heard the collision would have taken place. Certainly the plaintiff was entitled to one second to decide whether the driver also saw the danger and to another second to decide whether an outcry was the right thing in the situation. And certainly the driver was entitled to one second to ascertain from what dirеction a car was coming, whether from west or east or north or south, and another second in which to determine how the emergency should be met and one second in which to bring his Ford to a stop.
It is going far, is it not, when only two seconds were available for everything, to suggest that all reasonable men would agree that in the exercise of ordinary care plaintiff would have cried out — “Here comes a car?”