184 N.W. 233 | S.D. | 1921
Plaintiff brings this action to recover damages for injuries to his person, and also injuries to an auto ambulance owned and driven by him, resulting from a collision with a street car owned and operated by the defendant in Sioux Falls. Plaintiff had judgment for substantial damages, and defendant appeals.
“Doubtless, notwithstanding the negligence of a plaintiff has put him in peril, yet if his danger is perceived by the defendant in time, so that by the exercise of ordinary diligence on his part injury can be avoided, the defendant will be held for the injury. But that is based upon the fact that a defendant did actually know of the danger — not upon the proposition that he could have discovered the peril of the plaintiff, but for the remissness on his part. Under this rule, a defendant is not liable because he ought to have known.”
We believe this a correct statement of this doctrine. The facts shown by the record do not bring the case within this rule, and the instruction complained of is prejudicial to the appellant. Twitched v. Thompson, 78 Or. 285, 153 Pac. 45; Berry, Automobiles, §§ 201, 202; Underwood v. Oskaloosa Traction Co., 157 Iowa, 352, 137 N. W. 933.
The judgment and order appealed from are reversed.