Granflaten v. Rohde , 66 S.D. 335 ( 1938 )

I am not able to concur in the majority opinion in this case. The defendant was driving in the night time over a smooth paved road. It was on the evening of a national holiday. The traffic both ways was very heavy. While the country over which defendant was driving was comparatively level, there was some up and down hill. Defendant was driving at an excessive rate of speed — 60 to 70 miles per hour. He was meeting cars coming from the opposite direction at the rate of about one car every minute; not only that, he was overtaking and passing cars going in the same direction he was going, and passing them whether they were going uphill or downhill. Defendant tried to pass a car going in the same direction he was going while it was approaching the brow of a hill. As he was in the act of passing this car, and while he was in a position where he could not possibly avoid a collision if a car should come from the opposite direction, another car did come over the top of the hill and collided with defendant's car. Under these circumstances, was the defendant guilty of "gross negligence or wilful and wanton misconduct"? I think that under what this court said in both the Melby Case, Melby v. Anderson, 64 S.D. 249, 266 N.W. 135 and the Martins Case, Martins v. Kueter, 65 S.D. 384, 274 N.W. 497 defendant was guilty of gross negligence and wilful and wanton misconduct. One of the cardinal rules of the road is, under no circumstances, to pass another car while approaching the top of a hill. With as much traffic on the road as there was at the time of the accident it was all but absolutely certain that defendant would meet another, and before he reached the top of the hill, and before he could get back onto his own side of the road. In passing the other car as he was doing, he was committing a deliberate and intentional wrong which amounted to "wilful and wanton misconduct."

In the Melby Case we held that while the driver of the car in which plaintiff was riding was negligent, he was not sufficiently negligent to amount to wilful and wanton misconduct and held that Melby was not entitled to recover. In the Martins Case, we held that in attempting to round the particular turn in the road at the rate of 70 miles per hour, the driver was guilty of negligence that amounted to wilful and wanton misconduct and held that plaintiff was entitled to recover.

In this case the defendant was making a practice of passing cars while going uphill at a rate of speed when it was highly probable that he would meet another car coming from the opposite direction and while his car was in such a position that a collision could not possibly be avoided. In doing this defendant was committing a wilful and intentional wrong. This was such a degree of negligence that it amounted to wilful and wanton misconduct and plaintiff is entitled to recover; this is in accordance with our holding in both the Melby and Martins Cases.