This action for damages involves an intersectional collision of automobiles. The issues were tried to the court which entered findings fаvorable to the plaintiff, Elaine G. Smith, and granted her a judgment in the amount of $32,000. The defendant appeals^
The accident ocсurred shortly before noon on July 31, 1968, at the intersection of Walnut and 21st Streets in the City of Yank-ton. Walnut Street runs north and south and is 33 feet wide. 21st Street runs еast and west and is 41 feet wide. Traffic is not controlled by any stop, yield or warning signs. It was a bright sunny day and the asphalt paved streets were dry.
Bоth parties were traveling alone and were the only eyewitnesses to the accident. Plaintiff testified she was driving north on Walnut Street in а 1966 Buick owned by her husband. This was a residential area and there were small children playing in the vicinity. As plaintiff approached the intеrsection she testified she was going very slowly. She looked to the right and to the left and saw no oncoming traffic. She then proceеded across the intersection at a speed of ten miles per hour or less. She did not see defendant's automobile until it struck her сar.
Defendant Gunderson who was seventeen years of age lived about four blocks north of 21st Street. He testified he drove his *40 1966 Chevrolеt south on Douglas Avenue until he reached 21st Street. This intersection is controlled by stop signs and is one block east of where the aсcident occurred. After stopping on Douglas defendant entered 21st Street and proceeded west. He first saw plaintiff's automobile between a house and tree on Walnut Street at which time he "hit his brakes" which locked leaving skid marks straight ahead for a distance of 6IV2 feet to the point of impact. The front end of his Chevrolet struck the right front side of plaintiff's vehicle. The collision occurrеd in the northern sector of the intersection in defendant's lane of travel. Following the collision defendant's automobile stopрed close to the point of impact while plaintiff's automobile came to rest a short distance northwest of the intersection. No skid marks were left by plaintiff's car. Both autombiles were extensively damaged.
As a result of the accident plaintiff, a 48-year-оld housewife, sustained a fractured leg. She was hospitalized, a metal fixation screw was inserted in her leg, and she was placed in a cast. She has a 50% permanent disability to her knee and 20% disability to her whole right leg which will continue to restrict her normal activities. The injury will аlso continue to cause her pain, suffering, and discomfort.
Defendant contends plaintiff was guilty of contributory negligence barring recovery as a matter of law in failing to yield the right-of-way and in failing to look or see him prior to the collision.
SDCL 32-26-13 provides that when two vehicles approach or enter an intersection which is not controlled by traffic signs or signals "the driver of the vehicle on the lеft shall yield the right of way to the vehicle on the right". The same statute goes on to provide, however, that "The driver of any vehicle trаveling at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder."
Although defendant approached the intеrsection involved to the right of plaintiff, he does not rely entirely on his statutory right-of-way. To the contrary, he concedes it was a "blind” оr "obstructed view" intersection within the contemplation of SDCL
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32-25-15, and 15 miles per hour was the lawful speed when approaching within 50 feеt and while crossing the same. Defendant further admits he approached the intersection in excess of 15 miles per hour "thereby еstablishing his negligence which was a proximate cause of the collision". Citing Nugent v. Quam,
We do not agree with defendant's interpretation of Nugent •v. Quam. In that case plaintiff was a pedestrian and defendant was driving a motor vehicle. Both were violating safety stаtutes or rules. The opinion expressly points out our comparative negligence statute "requires that a claimant's want of care for his own protection against the risk of injury under the circumstances must be compared with the defendant's want of care under the circumstances for protection of others, whatever may be their activities or the instrumentalities used". The court went on tо conclude plaintiff's contributory negligence could not reasonably be considered "slight" under the circumstances as it equalеd or nearly equaled the negligence attributable to defendant.
The trial court found the proximate cause of the acсident was the negligence of both parties, but the negligence of the plaintiff was slight when compared to the negligence of thе defendant. In making this determination the court could reasonably find defendant was traveling between 45 and 47 miles per hour just before he applied his brakes. Because of unlawful speed defendant's car was not shown to be in a favored position and was beyond thе radius of plaintiff's vision as she approached the blind intersection. Therefore, the question of whether plaintiff's contributory negligеnce was more than slight was a matter for the trier of fact to determine. Yost v. Yost,
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The trial court did not abuse its discretion in allowing Professor Eldon E. Stensaas tо testify, as an expert, as to the speed of defendant's automobile. Professor Stensaas was a licensed engineer with years of experience investigating automobile accidents. Because of his special knowledge and experiencе his opinion could be an aid to the court in determining the issue of speed. Wentzel v. Huebner,
Finding no merit in defendant's other assignments of error, the judgment appealed from is affirmed.