Nichols v. Morkert

182 N.W.2d 324, 85 S.D. 384, 1971 S.D. LEXIS 83

• Court: South Dakota Supreme Court
• Decided: January 4, 1971
• Docket: File 10686
• Status: Published

Opinions

PER CURIAM.

This action was brought by Eva Nichols, plaintiff, against Lonna Morkert, defendant, to recover damages for personal injuries allegedly sustained when the automobile that plaintiff was operating was struck in the rear, while stopped for a traffic light, by an automobile driven by defendant. Plaintiff was involved in two prior automobile accidents in which she sustained injuries to her neck. She claimed that an aggravation of her existing disabilities was compensable.

Plaintiff at the close of the evidence moved for directed verdict on the issue of liability on the ground “that reasonable men could only conclude that the accident resulted from the negligence of the defendant in not having her car under proper control, considering the road conditions then and there present.” The motion was denied and the court submitted the case to the jury which returned a verdict for the defendant. Plaintiff appealed from the judgment entered thereon and assigns as error denial of the motion for directed verdict.

The accident occurred December 28, 1968, at about 8:30 a. m. at the intersection of Mt. Rushmore Road and St. Patrick Street in Rapid City. The plaintiff, operating her c'ar on the Mt. Rushmore Road, brought her car to a stop at the intersection in compliance with a traffic light. The streets were icy and there was a light covering of snow. Defendant on cross-examination testified: “Q Tell us then, what happened, as you approached the accident intersection. A Well, I could see that the light was red, and I knew it was extremely slick, and X — the thought ran through my mind that I better start pumping my brakes or I am not going to get stopped in time, and it was a half a block before the intersection, when I started pumping my brakes, and my car started slowing down gradually, and I kept pumping them, and my car kept slowing down, and, to me, it seemed like it was going to stop, and I wasn’t even concerned, and at the moment of impact, I was just surprised because I had come to almost a stop, but I was still going before I — I mean, I couldn’t quite come to a complete stop, before I hit the car, but I had slowed down enough where it just seemed to me that I was going to stop any second, but I didn’t. Q Would you — What would you estimate your speed at the time that you actually collided with the car in front of you? A * * * I would say between three and five miles an hour — would be my guess.” There appears a slight dent in the front bumper detached from defendant’s car and received in evidence, where it came in contact with the trailer hitch on plaintiff’s car.

The icy condition of streets was known to the operator of each vehicle and they were charged with the duty of exercising the care and caution proportionate to the dangerous condition. Cordell v. Scott, 79 S.D. 316, 111 N.W.2d 594. The mere fact that an automobile slides or skids on a slippery highway or street does not in itself constitute negligence on the part of the driver. Zeigler v. Ryan, 65 S.D. 110, 271 N.W. 767; Jacobson v. Coady, 77 S.D. 1, 84 N.W.2d 1; Boyd v. Alguire, 82 S.D. 684, 153 N.W.2d 192. The court fully instructed the jury on negligence, proximate cause and burden of proof.

We have carefully considered the record and conclude that rule here applies where the evidence is such that reasonable men may draw different conclusions therefrom, the question of liability is for the jury.

Judgment affirmed.

RENTTO, P. J., and HANSON and HOMEYER, JJ., concur. BIEGELMEIER, J., dissents. WINANS, J., not participating.