Hoffman v. Royer

359 N.W.2d 387, 1984 S.D. LEXIS 431
CourtSouth Dakota Supreme Court
DecidedDecember 12, 1984
Docket14411
StatusPublished
Cited by25 cases

This text of 359 N.W.2d 387 (Hoffman v. Royer) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoffman v. Royer, 359 N.W.2d 387, 1984 S.D. LEXIS 431 (S.D. 1984).

Opinions

POSHEIM, Chief Justice.

Plaintiffs appeal from a judgment entered on a verdict on defendant’s counterclaim. We affirm in part, reverse in part and remand.

Plaintiff James E. Hoffman (Hoffman) doing business as Hoffman Trucking, brought an action against defendant, Bruce E. Royer (Royer) for damages to Hoffman’s cattle truck resulting from a collision between the truck and Royer’s vehicle. Plaintiff Fred Kost (Kost) brought an action against Royer for damages to certain of his cattle that were being hauled for him by Hoffman at the time of the accident. Royer filed a counterclaim against Hoffman for the damages resulting to Royer’s vehicle in the accident. These actions were consolidated for trial and appeal. The jury found in favor of Royer on his counterclaim and against plaintiffs on their complaints.

Appellants contend the trial court erred by (1) giving an unavoidable accident instruction, (2) refusing to find that Royer was guilty of negligence as a matter of law, and (3) not allowing them to question prospective jurors concerning liability insurance.

On appeal, we review the evidence in the light most favorable to the prevailing party and resolve conflicting evidence in favor of the verdict. See, e.g., Stoltz v. Stonecypher, 336 N.W.2d 654 (S.D.1983); Kee v. Assam, 336 N.W.2d 162 (S.D. 1983); Barnhart v. Ahlers, 79 S.D. 186, 110 N.W.2d 125 (1961); Hullander v. McIntyre, 78 S.D. 453, 104 N.W.2d 40 (1960).

The accident that spawned these lawsuits occurred at approximately 2:00 p.m. on November 21, 1981, on U.S. Highway 83 approximately ten miles south of Murdo. Defendant Royer, his brother Doug, and a friend, Pete Kerns, were hunting deer in that area. They drove separate vehicles. Kerns proceeded onto Highway 83, followed by Royer, who in turn was followed by his brother Doug. The three drove north about four-tenths of a mile at a speed of thirty-five to forty miles per hour. In preparation for a left turn across Highway 83, each driver activated a left turn signal. Kerns completed his turn and was in the approach area when the collision occurred between Hoffman’s truck and Royer’s vehicle. Royer, who had turned on his left turn signal, checked his rear view mirror and saw his brother’s vehicle behind him but nothing else. He started to make the turn, whereupon he heard the sound of a truck horn. He was some three-fourths through the turn when his vehicle was struck by Hoffman’s truck.

Clayton Neuhauser, the driver of Hoffman’s truck, testified that he had just crested the hill north of the White River crossing and was gaining speed going downhill when he observed the three vehicles ahead of him. He moved his truck into the left-hand lane, preparing to pass the three vehicles. Upon observing Kern’s vehicle make the left-hand turn, Neuhauser “applied some brake to slow me down .... ” As he drew closer to the remaining two vehicles, Royer commenced his left-hand turn, whereupon Neuhauser stepped [389]*389on his brakes “real hard,” sounded his air horn, and turned sharply to the right to try to get back into the right-hand lane. The impact between the two vehicles occurred near the center of the highway just below the crest of the hill.

Neuhauser’s truck was followed by two other trucks all of which were traveling as a convoy. Immediately after the accident, Neuhauser was observed standing on the passenger door of the over-turned truck tractor and fumbling around on the floorboard for some papers. He was also observed writing in what appeared to be a log book of the type the Interstate Commerce Commission requires of all commercial truckers. At the time he was doing this, there was diesel fuel leaking from the fuel tanks of the over-turned truck. Neuhauser was also overheard saying to the two other truckers that “we stopped in White River and slept two hours.” Neuhauser’s testimony at trial was that he had not stopped to rest at White River either on the way to pick up Kost’s cattle or on the return trip immediately prior to the accident. We turn now to the issues.

We agree the trial court should not have given an unavoidable accident instruction to the jury.

At trial, the Court gave the following instruction:

If you should find that the accident which is the subject of this lawsuit was an unavoidable accident, then, you shall return a verdict against all claimants and in favor of all defending parties on the various claims and award no damages.

In Meyer v. Johnson, 254 N.W.2d 107, 110 (S.D.1977), and in Del Vecchio v. Lund, 293 N.W.2d 474 (S.D.1980), we reaffirmed the guidelines established in Cordell v. Scott, 79 S.D. 316, 322-323, 111 N.W.2d 594, 598 (1961) concerning the un avoidable accident instruction:

Although we believe unavoidable accident instructions should be restrictively used we do not favor * * * total exclusion. In the ordinary negligence action the jury is adequately instructed on the ultimate issues by instructions on negligence, contributory negligence, burden of proof, and proximate cause. Further instructions on unavoidable accident usually is unnecessary. Such instruction may properly be given in those cases where there is evidence that something other than the negligence of one of the parties caused the mishap. It is particularly apt where the further element of “surprise” is present such as the sudden and unexpected presence of ice, the blowout of a tire, the malfunction of brakes, or other mechanical failure, (emphasis added)

As in Meyer, Cordell and Del Vecchio, the unavoidable accident instruction was improper under the facts of this case and it very likely affected the verdict of the jury. We accordingly reverse on that issue and remand for a new trial.

Appellant next contends the trial court erred in denying plaintiffs’ motion to instruct the jury that Royer was guilty of negligence as a matter of law, thereby removing that issue from the jury’s consideration.

SDCL 32-26-22 provides:

The driver of any vehicle upon a highway before starting, stopping, or turning from a direct line shall first see that such movement can be made in safety and if any pedestrian may be affected by such movement shall give a clearly audible signal by sounding the horn, and whenever the operation of any other vehicle may be affected by such movement shall give a signal as required in § 32-26-23 plainly visible to the driver of such other vehicle of the intention to make such movement.

SDCL 32-26-23 provides that the signal required by SDCL 32-26-22 may be given either by means of the hand and arm or by an approved mechanical or electrical signal device.

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Hoffman v. Royer
359 N.W.2d 387 (South Dakota Supreme Court, 1984)

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Bluebook (online)
359 N.W.2d 387, 1984 S.D. LEXIS 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoffman-v-royer-sd-1984.