173 N.W. 158 | S.D. | 1919
While the plaintiff was riding in a buggy along a highway, in Brookings county, her horse ran away, upsetting the buggy and throwng the plaintiff to the ground, thereby causing, her serious, and probably permanent, injury. Claiming the runaway was caused by the negligent manner in which defendant was operating a motor car on said highway, plaintiff, (brought this action to recover damages caused by said injury. She recovered judgment and defendant appeals.
“That plaintiff’s said .injuries and damage were directly and proximately caused by the unlawful, careless, and negligent act of said defendant in so driving his said automobile, loaded in the manner aforesaid, at an excessive speed on the highway, and in failing .to- stop when the horse driven by plaintiff showed signs of fright and of being unmanageable.”
This allegation charges three distinct acts of negligence: First, the improper and negligent manner of loading the automobile; second, the excessive rate of speed at which defendant was driving at the time of the injury; and, third, the failure of defendant to stop said car when-it became apparent to him that plaintiff’s horse was becoming frightened. Either of these acts, if shown to have been the proximate cause of the injury, would entitle plaintiff to recover.
In order to constitute actionable negligence on this branch of the case, there must have 'been something about the appearance of the car or the manner in which it was loaded that would suggest to an ordinarily prudent man that it would terrify or frghten an ordinary horse: i. e., a horse that had become accustomed to automobiles on the road. There are horses that would take fright at any automobile, regardless of whether it was loaded, at all; but people are not required to refrain from using automobiles on the highway to avoid frightening such horses, and a person talcing such horse on the highway would do so at his own peril. On the other hand, there are horses that would not take fright at an automobile, no matter how it might be loaded or what its appearance .might be. But this fact would not justify a person in going upon a highway with an automobile so loaded, or having such an appearance, that it would be calculated to frighten or terrify an ordinary horse.
In this case, we do not believe that defendant’s automobile was loaded in such a manner as to suggest to a reasonably prudent person that it would frighten or terrify an ordinary horse.
“You are hereby instructed that, under the laws of the state of South Dakota, ‘Every person operating a motor vehicle on a public highway of this state shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another, or the life or limb of any person; provided, that a rate of speed in excess of 25 miles an hour shall be presumptive evdence of driving at a rate of speed which is not careful and prudent in case of injury to the person or property of another.’
“You are instructed that, if you shall find by a preponderance of the evidence that at the time of the accident which is the subject of this action the said defendant was driving his car at a rate of speed in excess of 25, miles per hour, then and in that case you would be justified in finding that the said defendant was not careful and prudent in the operation and management of his automobile.”
The giving of this instruction is assigned as error. While said instruction may be correct as an abstract proposition of .law, it has no application to the facts in this dhse. There is no evidence to show that the defendant was driving his car in excess of 25 miles per hour at the time of the accident, nor that the rate of speed at which he was driving contributed to the cause of the accident. One witness, who met defendant just prior to the accident, testified that, as defendant approached the witness, he was driving at a rate of about 25 miles per hour, but it is an admited fact that, before the witness passed defendant, defendant had stopped his car and waited while the witness "crossed a bridge that was. between him and the defendant. The defendant then crossed the bridge, going towards the plaintiff, who was
Plaintiff’s horse “just started to shy off a little, but just at pretty near the sarnie time the whole thing happened, the buggy went over just, you might say, in a twinkling, you might call it, when this horse pulled this other way. You might say there was no length of time between. It all happened in a very short time from the time h,e began to shy, I am pretty sure. I had the idea, by the looks of things, she had ttirned just a little to the •right. I did, not think it was jumping at that time, not at that time.”
Another witness testified;
"I noticed the hor.se turn a little out to the east and then*136 whirl right around, facing the south across the road, and the buggy was upset and the horse faced the south. * * * Before the horse turned to the right, I noticed nothing to indicate that 'the horse was stopping, nor anything to- indicate that it was settling 'back in the shafts. * * * The whole thing happened as quick as you can tell about it.”
The testimony of the defendant does not materially differ from that of plaintiff on this point, except ■ that defendant testified that the horse did not shy nor show signs of fright until he was within a distance of three times the length of his car from the horse, and that he then stopped his car as quickly as possible.
Upon a careful examination of the whole record, we are of the opinion that the evidence is insufficient to support the verdict, and the judgment must be reversed.