Nelson v. McClard
357 N.W.2d 517
S.D.
1984
Check Treatment

*1 party appellants were a any evidence agreement, no any purchase there was any material fact.”

“genuine issue as 15-6-56(c). Mary Glen and Kane

SDCL alleged factual deceit

simply basis for

concerning they prove. could not 15-6-9(b).

The is affirmed.

DUNN, Justice, participating. Retired

WUEST, Judge, acting Circuit as a Su- Justice,

preme participating. Court

Rodney NELSON, A. Plaintiff Appellant, McCLARD,

Frederica W. Appellee.

Defendant and McCann, T.F. Martin of Martin & McCаnn, Brookings, appel- lant. Austin, W.A. Hackett of Hinderaker & Nov. Decided Hackett, Watertown, for defendant and

pellee.

WUEST, Acting Justice. case arose out of a collision at an This signals. intersection controlled traffic Appellant Rodney (appellant) A. Nelson damages pickup sued his (appellee) leе Frederica W. McClard coun- ‍​‌​‌​​​​‌‌‌‌‌​‌‌​‌‌​​​‌‌‌‌​‌‌‌‌‌‌​​‌​‌​​‌‌​‌‌‌​‌‍damages terclaimed for to her vehicle. jury to a trial was waived and the tried case was before the court. The court concluded both were and that neither could recover. We reverse and re- mand. dispute par-

There was some between the ties as to the facts but the court found driving pickup who was truck northerly in direction on 6th Street *2 518 Arms, Dakota, stopped Citing traffic. Alborn v. 74 S.D. had

Brookings, South 277, (1952); appellee, 101 Robertson v. ‍​‌​‌​​​​‌‌‌‌‌​‌‌​‌‌​​​‌‌‌‌​‌‌‌‌‌‌​​‌​‌​​‌‌​‌‌‌​‌‍found who 52 N.W.2d light. It further a red Hennrick, 37, 29 N.W.2d 329 automobile an easter- 72 S.D. her operating was Avenue, Co., traveling (1947); 70 17th was Kundert v. B.F. Goodrich ly direction hour; per 464, (1945); thirty to miles McKiver v. twenty-five 18 N.W.2d 786 about S.D. Co., 613, the intеrsection the approached Brewing 67 S.D. that as she Theo. Hamm (1941); Am.Jur., she yellow and before changed N.W. 445 5A Automo- light 297 § changed it to rеd. Traffic, intersection Highway entered the biles and that when the turned found The court Youngstrom, 81 S.D. In Burmeister v. the inter- he entered (1965), 578, 139 N.W.2d 226 we held obsеrving appellee’s auto- section without stop sign presence of a does not A the intersection. col- mobile duty to usе the relieve a motorist intersection, causing in the lision occurred highway favored with reasonable ‍​‌​‌​​​​‌‌‌‌‌​‌‌​‌‌​​​‌‌‌‌​‌‌‌‌‌‌​​‌​‌​​‌‌​‌‌‌​‌‍care damage tо both vehicles. Traffic property to the and with due timed, are so the intersection lights at the others, Hennrich, v. 72 S.D. Robertson yellow show until the green light will not 37, [1947], where the 29 N.W.2d 329 but signals have and all four light has ceased protected knows it is a road red for one second. bеen by stop sign at an intersection with appellee was The trial court concluded reasonably another road he сan assume running negligent for a red contrary until the is observed that a mo- failing negligent for to observe lant was approaching the intersection on an torist approaching the intersec- appellee’s vehicle look, intersecting road will prоper keeping a lookout. tion and not yield right-of-way to the driver on the finding conclusion under court made no favored roаd. comparative negligence statute. 583, 139 N.W.2d at 229. 81 S.D. vehicular traffic A indicates argument An could be made that Bur- may proceed straight facing signal modified the rule stated in meister Grosz steady yellow A through. 32-28-2. earlier we are deal- cases. the vehicular traffic light alone indicates ing signals, distinguished stop as facing signal is warned that the red Ordinarily, signs. signals are used for con- immediately ther- signal will be exhibited areas, gested stop signs are used whereas traffic shall not eafter and such vehicular busy highways and streets. on less signal the interseсtion when the red enter day Modern intersections are steady is exhibited. SDCL 32-28-3. lanes, arrows, enough with left turn turn facing light alone indicates vеhicular traffic red, delayed signals, right turns on etc. signal stop shall The driver of the car standing intersection and shall remain until kept seсtion on street green is exhibited alone. SDCL 32-28-4. sufficiently busy by the action at the dealing Dakota cases required There are no Sоuth intersection. we this driver except stop lights additionally First Northwestern oncoming check the traf- Schnable, (S.D. 334 N.W.2d 16 non-preferred Trust Co. v. fic on the we would street 1983), factually which is different. There probably accidents than we cause more are, however, dеaling cases prevent. numerous would stop signs. Co.,Inc., v. Anderson Pre-Fob Transit 409 1157, (Ind.App.1980) ‍​‌​‌​​​​‌‌‌‌‌​‌‌​‌‌​​​‌‌‌‌​‌‌‌‌‌‌​​‌​‌​​‌‌​‌‌‌​‌‍citing N.E.2d Groth, 379, 1164 102 In 78 S.D. Grosz v. Doan, 316, Ind.App. v. 155 292 (1960), Wallace held a trаveler N.W.2d 834 (1973). N.E.2d 820 also Walton v. See through highway had the on the Kolb, 95, (1972); Colo.App. 31 500 P.2d 149 stop come to a assume traffic would cross 305, West, Ill.Aрp.2d v. 53 203 entering the intersection he was Pfister (1964); however, timely Rogers, make N.E.2d 35 Lehar 208 proaching; he had to 831, (1972). 1124 oncoming Kan. 494 P.2d observаtion of the crossroad Sims, POSHEIM, C.J., Taylor the California WOLLMAN and (1945), HENDERSON, JJ„ Cal.App.2d 164 P.2d concur. the court stated: MORGAN, J., specially. concurs the intersеction here involved was Since MORGAN, (concurring specially). Justice an electric traffic controlled required to look wаs into *3 gist I concur in the result and the cross streets before opinion it, Ias understand but I find the signal permits

section. The him to move penultimate statements in the paragraph to easterly westerly in an direction. contradictory illogical. effect, be being The rule that where the intersec- holding proceeding the is: motorist on governed by tion movement of traffic is green negligent should not be dеemed be- signaling devices the determination of cause he failed to maintain a lookout —of question the as to whether the one driver course, this does not relieve him from main- responsible or the other is for a collision taining a lookout —. depеnds primarily the intersection author, agree I with the based on the showing ‍​‌​‌​​​​‌‌‌‌‌​‌‌​‌‌​​​‌‌‌‌​‌‌‌‌‌‌​​‌​‌​​‌‌​‌‌‌​‌‍the as to whether one vehi- cited, authorities that a motorist a being operated cle or the other was in controlled intersection under the conformity signal. peer does not have to down the non- proceeding pursuant to the “Go” preferred if going streets to see someone is negligent is not to be dеemed because he light. to run a if the offend- fails to maintain a lookout for a vehicle ing driver has entered the intersectiоn and might enter the intersection in vio- view, plain in may motorist (citations omitted) signal, lation of blithely ignore not the obvious. From the us, Stillwell Gru Michigan

In the record latter was not the 344, 351, case, baugh, Mich. N.W.2d nor are we involved with other vehi- (1959) (citations omitted), pedestrians legаlly cles or in the intersec- stated: tion. crossing green light a one cannot

depend upon safety the law affords

him, but must wait each time to see the driver

whether the red will observe the he

may in position, find himself

particularly light changes against if the AUTO-OWNERS INSURANCE completеd trip him he has COMPANY, Plaintiff and across the street. Appellee, proceeding

We believe a motorist should not be deemed TRANSAMERICA INSURANCE COMPA bеcause he failed to maintain a lookout NY, Smith, John W. Smith Elec d/b/a might a vehicle which enter the intersection tric, Logan, and Kevin Defendants signal. violation of He has the Appellants. obey to assume other traffic will course, signal. this does not relieve him Of of lоokout, keeping using reason care, due able words, may others. In other a motorist Decided Nov. blithely be oblivious to the obvious.

Accordingly, we and remand reverse

with directions to enter damages.

lant for his