*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. 24 N.W.2d 485. When the is thus standard defined, fixed and its measure the omission of that negligence in Klock, and of itself. Descombaz v. 58 S.D. many

235 N.W. 502, and see the cases cited in Albers other Ottenbacher, 529. Of course duty required defendant to her car behind car which sight complying plain with the statute and stop light. Lakings, McDonnel v. hereafter discussed. any categories Nor did four exist set out in Albers to of compliance express excuse defendant’s command plain statute, the cited it is she fact did not stop. under control could she *4 testimony Some of defendant additional to that opinion driving court’s that shows she was to too fast her was: car * * * extremely Well, slick;

“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 85 A.L.R.2d 630. the collision As “would except not have occurred for the of the defendant (May driver” Lemmon, 1970, 158, 177 Minn. 298), granted plaintiff’s court should motion. .myopinion prior departing

In the court is from its hold- ings adopting practical appli- a rule not Consonant with Hence, I cation. must dissent.