Boll v. Gruesxer

GATES, J. Action for damages caused by the collision of two automobiles. Plaintiff was. driving west on the north side of Twelfth street, and defendants were driving north on the ;east side of Summit avenue, in the city of Sioux Falls. There was a collision west and north of the center of the intersection of the two streets. There was an irreconcilable conflict in the evidence as to [530] nearly all of the facts. Plaintiff’s evidence tended to show that defendants’ car struck plaintiff’s. Defendants’ evidence tended to show that plaintiff’s ear did the striking. Plaintiff’s evidence tended to show that he 'was traveling at the rate of from 12 to 15 miles an hour until he reached the intersection, when he slowed down to 7 or 8 miles. Defendants’ evidence tended to show a much greater rate of speed. Plaintiff’s evidence tended to show that when he reached the intersection he saw defendants coming towards him, about 150 feet distant, at the rate of about 35 miles an hour. Defendants’ evidence tended to show that their car was then much nearer the intersection, that plaintiff’s car was much farther, and that defendants were traveling at from 12 to i>5 miles an hour. The evidence also shows that defendants crossed to the west of the center of Summit avenue, near the south boundary of the intersection, and did not g'o “to the right and beyong the center of the intersection.” Verdict and judgment were for plaintiff. Defendants appeal. 'Subdivision 2 and 4 of section 1, chapter 301, Daws of 1917 (now section 8653, Rev. Code 1919-), provided: (2) “Every driver of a motor vehicle approaching the intersection of a street or highway shall grant the right of way at such intersecion to any vehicle approaching such intersection from his right,” etc. (4) “Every driver of a motor vehicle turning into another street or highway to the left shall before turning, pass, whenever possible, to the right and beyond the center of the intersection of the two streets or highways.” An ordinance of Sioux Ealls provided: “It shall be unlawful for any driver to drive any motor vehicle upon the public streets, alleys or public grounds in the city of Sioux Ealls at a greater rate of speed than 15 miles an hour.” [1] If the jurors believed the evidence offered on behalf of respondent, they were justified in concluding that appellants violated not only the above statute, but also" the statute (now section 8656, Rev. Code 1919) which required the operator of a motor vehicle to drive in a careful and prudent manner, and also that appellants were attempting to cross the intersection, or to turn into Twelfth street on their left, ahead of respondent, regardless of respondent’s rights, and regardless of the statute [531] law of South Dakota and the ordinance of Sioux Dalis. Indeed, the presence of appellants on the west side of the center of Summit avenue is difficult to explain upon any other theory. Appellants contend that, even under the facts as shown by respondent’s evidence, respondent was the one at fault be-course, after discovering appellants, he neither stopped his car nor accelerated his speed, but went on at the same gait. ' They therefore invoked at the trial, and now invoke, the doctrine of the last clear chance. [2] It is, we think, entirely clear that if appellants had kept to the right side of the street, as respondent had the right to believe they would, and as respondent had no reason to believe they would not, when he first discovered them, there would have been no collision. The trial court did not err in refusing to instruct the jury in accordance with the last clear chance rule. The facts did not warrant it. The duty of respondent at the moment of discovering appellants is well summed up in a syllabus to the recent opinion in Simmons v. Peterson, 207 Mich. 508, 174 N. W. 536: “The driver of an automobile is not required to do 'everything possible’ after discovering dang-er to avoid an accident, but is required to use such care and take such course as an ordinarily prudent person would under -like circumstances, taking into consideration the conditions as they appeared to the driver at the emergency of the moment.” The decision in Elgin Dairy Co. v. Shepherd, 183 Ind. 466, 108 N. E. 234, 109 N. E. 353, is also quite in point. See, also, Huddy, Automobiles (5th Ed.), § 409. The instructions given to the jury w;ere extremely fair to appellants. We find no error in the record prejudicial to them. [3] There is another convincing reason why the verdict and judgment should' not be disturbed. The position in which the two automobiles were found immediately after the accident demonstrates that the testimony of appellants’ witnesses, that the spring of respondent’s car struck the cap of the right front wheel of appellants’ car, and as to their respective speeds, was' untrue. It was contrary to the law's of physics for those results to have happened from those causes. On the other hand, the position of the respective cars was consistent with the truth [532] fulness of respondent’s testimony as to their respective rates of speed and that the appellant’s car struck the respondent’s car on the left side near the rear end.. The judgment and order appealed from are affirmed.