*1 directing appeal. appropriate can an It fashion order allowing to be reinstated time the revoca- revocation tion was in deduction. effect as a judgment appealed from reversed.
RENTTO, HANSON, HOMEYER, JJ., concur. participating. ROBERTS, P.J., not Appellant Respondent NICHOLS, MORKERT, 324)
(182 N.W.2d 1971) (File Opinion January 4, 10686. filed No. February 17, Rehearing denied 1971. Rapid City, plaintiff appel- Rensoh,
William M. lant. City, Rapid
Whiting, Lynn, Freiberg Jackson, & Schultz, respondent. for defendant and
PER CURIAM. plaintiff, again- brought by Nichols, action was Eva This personal damages for Morkert, defendant, to recover Lonna *2 st plain- injuries allegedly automobile sustained when the stopped operating rear, for in while was struck was tiff by light, Plain- defendant. driven traffic an automobile a prior automobile accidents in which two tiff involved in was ag- injuries neck. claimed that an to she sustained her She existing compensable. gravation of her disabilities was moved directed Plaintiff at close of the evidence for ground liability “that reason- verdict on the of on the issue only from resulted able men could conclude that the accident having under the proper the defendant considering control, then and the road conditions present.” was denied and the court sub- there motion The verdict mitted the case which returned a for to judgment appealed defendant. Plaintiff from the entered assigns thereon and verdict. denial of the motion directed as error 28, 1968, at 8:30 The accident occurred about December m. Mt. and Pat- a. at the intersection of Rushmore Road St. City. Rapid plaintiff, operating c'ar rick Street in on the Mt. The brought Road, a Rushmore her car to compliance light. The intersection with a traffic streets light covering icy were Defend- there was of snow. “Q then, ant on Tell what cross-examination testified: us happened, you approached A intersection. the accident I Well, and I knew it was ex- could see tremely thought my through slick, ran mind and X—the pumping my going get I I start brakes am not better or to time, and it inter- a block before the a half my pumping my brakes, section, when I started car start- slowing kept pumping gradually, them, and I ed down my slowing kept down, me, and, to seemed like it stop, going concerned, I even mo- and wasn’t and at to the come impact, just surprised ment I I had because stop, going mean, I I I—I almost but was still before complete stop, quite car, I hit couldn’t come to a before enough I me but had down where it slowed seemed stop any going Q second, I was Would but didn’t. that you you your speed time that would estimate at the —What you actually you? collided with front A say I would between three and five an hour—would be miles guess.” my appears slight bumper There dent in the front evidence, detached from defendant’s car and received in came in where it with the trailer hitch on contact car. condition of streets was known to the
operator vehicle and each with the exercising proportionate the care and caution to the dangerous Scott, condition. Cordell v. S.D. N.W. 2d 594. The mere fact that an skids automobile slides or slippery highway negli street or itself constitute does gence part Zeigler Ryan, on the of the driver. *3 Coady, 767;
271 1, 1; N.W. Jacobson 77 v. S.D. 84 N.W.2d Boyd Alguire, 684, v. 82 S.D. 192. N.W.2d The court fully proximate negligence, instructed the cause and proof. burden of carefully
We have considered the record and conclude applies here rule the is where evidence such that reason- may able men draw different therefrom, conclusions question liability jury. of for the is
Judgment affirmed. J., HOMEYER, P.
RENTTO, JJ., and HANSON and concur.
BIEGELMEIER, J., dissents.
participating.
J.,
WINANS,
Judge (dissenting).
BIEGELMEIER,
Rapid City
“glare
On
a
streets that were
of ice” and “ex-
tremely
daylight
slick”, defendant motorist in
saw car
a
(a
ahead)
proceeded
at a red traffic
block
speed
despite
pumping
on at such
her claim of
stop
block,
brakes for
a
half
she
unable so ran into the
rear
car ahead as it stood at
red
light.
undisputed testimony
traffic
This is the
of the de-
negligent
fendant. On these facts defendant was
as a matter
of
law
the trial court should have so c'oncluded and ad-
jury.
per
vised
in the
cannot
curiam
concur
negligence
which
the stated conduct was not
as
declares
pragmatic
as
is
with
matter
law
nor
accord
neither
expressed
law
in our
courts.
cases and those
other
duty by
It is made
statute that all
vehicular traffic
* * *
entering
“shall
before
the intersection and shall re-
standing
green
‘go’
main
until
32-28-4.
or
shown”. SDCL
safety statute,
This
command is
of which is
the violation
merely
as a matter of law and
evidence of
negligence.
Dean,
337;
v.
486,
Cowan
81 S.D.
137 N.W.2d
Blakey Boos,
1,
v.
83 S.D. 153N.W.2d 305. “The statute
ordinarily
becomes the
or
standard
care
the rule
person.”
prudent
Milling
careful and
McCleod v. Tri-State
Co.,
362,
71 S.D.
“A. I left home it was * * just glare got it was of ice when I block * * * stop light from the I saw that was it parked there —or stop- I could see ** * slowing I started ped light red * * * stop, I down didn’t and I the back hit * * * got got of her I out, she of her out ** * * ** anything I asked I her had done if * * * * * light to her green hitch trailer then turned *** got we cars both our and left.” (Emphasis supplied) by being own testi- shown of defendant conduct
The mony dispute, court to determine was for the it without by an instruction and declare it the standard whether met it per- negligent a matter law and as defendant judge jury wás trial That the to conclude otherwise. mit the counsel to his statement this view shown inclined to quite ways, say, clear, I’d might it seems some “I difficulty anticipate much wouldn’t almost finding negligence, Court, could, I know as but I don’t as question hands.” out of their take per place “The one it is first stated curiam at In the operator of each ve- known to the condition streets agree undisputed fact; an hicle”. With this this “and the sentence then continues the exercising proportionate caution care and dangerous citing Scott, Cordell v. condition” only men- was the one 594. The Cordell when motion was discuss- tioned the trial court point. First, defendant In Cordell ed. ** * Broadway. “proceeded south North The icy, generally streets in Watertown were but Broadway on North southbound lane was clear. north of When defendant was about half block Fourth Avenue intersection he first observed DeVillecar. was headed in his lane trav- It south thought moving. he el. Defendant it was When lengths away was about three car he noticed the De (which Ville car was still had sign there make a left turn —no or traffic involved). traveling was then Defendant per applied hour. about miles defendant his attempted right. brakes and turn without success (But intersection) because of the ice application caused car to skid brakes defendant’s (Emphasis supplied) and the collision followed.” *5 quotation entirely The above shows facts the are different only question too, than Then here. the there raised was giving of an instruction on unavoidable accident. why
Second, amI at a to understand should loss the court say “they” any surely plaintiff duty, nothing could do while she sat while was stop light. persons operating at the All motor are vehicles obey expressed by bound to rules thesis I the road as sta- our plaintiff tutes. for, That is the contend but owed no duty brought stop. after she ato opinion Lakings, Our 195, McDonnel v. 99 N. controlling. plaintiff 799, W.2d There when was 50 feet stop sign green from brought it turned from and he stop his auto to a at the intersection and about five seconds his auto later hit rear truck driven by defendant. quoting 170, After Ch. 32-26-40, Laws of now SDCL wrote: court duty plaintiff “It was the of the it was operate defendant vehicle his and to have it under such control toas be able to stop sign conform to the a sufficient dis- plaintiffs tance behind car so avoid as to end a rear collision.” support
That
ion and
opin-
cites several decisions in
of that
repeated
are not
Burandt,
here. Doleman v.
highway
Neb. 745, 71 N.W.2d
where the
undisputed
“The
accord.
evidence is that
** *
highway.
automobile
still
(by
testimony)
guilty
negli-
‘the defendant
his own
gence
Many
as a matter of law’ ”.
other rear end collision
declaring
negligence
cases
such conduct
a as matter of law
to be
are
found
In the court is from its hold- ings adopting practical appli- a rule not Consonant with Hence, I cation. must dissent.