Haase v. Willers , 72 S.D. 353 ( 1948 )

The majority opinion in this case states: "A seeming contempt for a peril with which he was thoroughly familiar was a contributing cause of the death of the decedent." In other words, the opinion of the court is founded upon the proposition that leaving his car partly on the paved portion of the highway and crawling under it to put on the chains constitutes contributory negligence and is a complete bar to recovery in this case.

It is undisputed that the front end of the tow car projected over the paved portion of the highway to the extent of two or three feet, and that the tow car was placed in that position by decedent. Neither can it be denied that this was a violation of the statutes of the state and constitutes negligence.

There is substantial evidence in this case to support the claim that the tow truck was plainly visible and that there was ample room to go around it to the left without leaving the paved portion of the highway; that the defendant Heath did not so drive his truck that he could or did discover the tow truck and bring his own truck to a stop within the range of his vision, nor did he discover the tow truck in time to turn out and pass it on the left; that if said defendant had exercised reasonable care he would have discovered the situation of the tow truck, and had he exercised the vigilance which it was his duty to exercise he would have avoided the collision. The evidence of defendant Heath's failure in this regard was sufficient to justify a jury in finding him guilty of negligence.

After the occurrence of Heath's negligence decedent had no opportunity, by the exercise of reasonable care, in the situation then existing, to avoid the consequences of said defendant's negligence.

In the above situation the question in this case is whether or not decedent's conduct in placing himself and the tow truck in a situation of danger was a proximate cause of the collision. Nielsen v. Richman, 68 S.D. 104, 299 N.W. 74; Nehring v. Connecticut Co., 86 Conn. 109, 84 A. 301, 45, L.R.A., N.S., 896, 896, 902; Locke v. Puget Sound International R. Power Co., 100 Wash. 432, 171 P. 242, L.R.A. 1918D, 1119; Mosso v. E.H. Stanton Co., 75 Wash. 220, 134 P. 941, L.R.A. 1916A, 943; Leftridge v. City of Seattle, 130 Wash. 541, 228 P. 302; Anno. 92 A.L.R. 51, Note 8.

In Nehring v. Connecticut Co., supra, the court said [86 Conn. 109, 84 A. 304]: "It follows that the decisive question, in each case where a plaintiff injured is found to have been at fault in the premises from his failure to exercise the required degree of care, resolves itself into one as to whether that fault was or was not a proximate cause of the injury, and that the answer to that question will infallibly determine whether or not it will bar a recovery."

The Supreme Court of Washington said in Locke v. Puget Sound International R. Power Co., supra, [100 Wash. 432, 171 P. 244] that "The doctrine of last clear chance does not abrogate any of the rules of proximate cause; it rather affirms them."

In Mosso v. E.H. Stanton Co., supra, the same court said [75 Wash. 220, 134 P. 944]: "The rule of last clear chance is grounded in the doctrine of proximate cause." And the same proposition was reaffirmed in Leftridge v. City of Seattle, supra. In Nielsen v. Richman, supra, this court adopted the same principle from the Mosso case.

This court defined proximate cause in Joslin v. Linder, 26 S.D. 420, 128 N.W. 500, 502, as follows: "Proximate cause of an injury is the immediate cause; it is the natural and continuing sequence, unbroken by any intervening cause, preceding the injury, and without which it could not have happened. * * * Proximate cause means probable cause. Remote cause means improbable cause." It must be noted that the collision must have been a logical consequence of the injured person's negligent act, unbroken by any intervening cause and without which the collision would not have happened. Otherwise his negligence is not a proximate cause of his injury, and is not contributory.

Proximate cause is always an essential element of negligence and contributory negligence, and the doctrine of last clear chance is a phase of the principle of proximate cause. That doctrine presents a criterion by which the original or antecedent negligence of the plaintiff in getting himself or his property in a place of danger, may be considered as a remote cause of the injury. When this occurs the plaintiff's negligence is not contributory and does not constitute a defense.

The principles of negligence and proximate cause as here involved are not of recent origin. In the case of Butterfield v. Forrester (1809) 11 East 60, Eng. Reprint 926, 19 Eng. Rul. Cas. 189, an English court held that when an accident is the result of fault on both sides, neither party can maintain an action. This was the first clear enunciation of the rule of contributory negligence. According to that rule any negligence on the part of the plaintiff which in any degree contributed to his injury was treated by the courts as a proximate cause and barred recovery. It was in 1842 that the English Court of Exchequer decided the celebrated case of Davies v. Mann, 10 M. W. 546, 152 Eng. Reprint 588, 19 Eng. Rul. Cas. 190. The facts in that case were that plaintiff was the owner of a donkey which he negligently turned into the public highway with the forefeet fettered, and left him. Defendant, while driving along the highway negligently ran into the donkey and killed him. Plaintiff was allowed to recover notwithstanding his own negligence. Lord Abinger, C.B., said: "* * * As the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there." Park, B., said: * * * the Judge simply told the jury, that the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public highway was no answer to the action, unless the donkey's being there was the immediate cause of the injury; and that, if they were of opinion that it was caused by the fault of the defendant's servant in driving too fast, or, which is the same thing, at a smartish pace, the mere fact of putting the ass upon the road would not bar the plaintiff of his action. All that is perfectly correct; for, although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road." Thus was established the rule that the party who has the last clear opportunity to avoid the accident is considered wholly responsible therefor notwithstanding the injured person may be in a dangerous position because of his own negligence, provided the defendant failed to use due care in an effort to avoid the injury.

In the present case defendant driver claims that he had no actual knowledge of the danger until it was too late to avoid the collision, and the majority opinion states: "One may not unnecessarily place and maintain oneself in such a dangerous position and then require others who failed to discover his peril to respond in damages." The question so presented is whether the duty to acquire knowledge is the equivalent of actual knowledge. In the case of Leftridge v. City of Seattle, 130 Wash. 541, 228 P. 302, 303, the Supreme Court of the State of Washington divided this subject into two categories depending upon whether defendant actually saw, or did not see but should have seen, the peril. In that case the court stated the basis of liability in each instance as follows: "* * * (1) that, where the defendant actually saw the peril of a traveler on the highway, and should have appreciated the danger and failed to exercise reasonable care to avoid injury, such failure made the defendant liable, although the plaintiff's negligence may have continued up to the instant of the injury, but (2) that, where the defendant did not actually see the peril of the plaintiff, but by keeping a reasonably careful lookout commensurate with the dangerous character of the agency and the locality should have seen the peril and appreciated it in time, by the exercise of reasonable care, to have avoided the injury, and failure to escape the injury results from failure to keep that lookout and exercise that care, the defendant was liable only when the plaintiff's negligence had terminated or culminated in a situation of peril from which the plaintiff could not, by the exercise of reasonable care, extricate himself."

This definition is in harmony with the final draft of Restatement of the Law of Torts in II Torts A.L.I. §§ 479, 480, and has been widely if not universally adopted as a fair statement of the rule. The first category applies to cases where defendant actually saw the peril, and plaintiff's negligence may have continued up to the instant of the injury. Under the second category the character of defendant's conduct in respect to care must be determined by what he should have known, and plaintiff's negligence must have terminated or culminated in a situation of peril from which the plaintiff could not, by the exercise of reasonable care, extricate himself. Nehring v. Connecticut Co.,86 Conn. 109, 84 A. 301, 45 L.R.A., N.S., 896, Chapin v. Stickel,173 Wash. 174, 22 P.2d 290; State of Maryland v. Coard, 175 Va. 571,9 S.E.2d 454; Dillon v. Sterling Rendering Works,106 Colo. 407, 106 P.2d 358; Weintraub v. Cincinnati N. C.R. Co.,299 Ky. 114, 184 S.W.2d 345; Morlan v. Hyatt, 116 Kan. 86, 225 P. 739; Kansas City Southern R. Co. v. Ellzey, 275 U.S. 236, 48 S. Ct 80, 72 L. Ed. 259; Smith v. Could, 110 W. Va. 579, 159 S.E. 53, 92 A.L.R. 28 and Comment p. 47.

In Nehring v. Connecticut Co., supra, [86 Conn. 109, 84 A. 307] it was said that, "the character of one's conduct in respect to care is to be determined in view of what he should have known as well as of what he did in fact know."

The rule was applied by the Supreme Court of Washington in Chapin v. Stickel, supra, where plaintiff's truck was being towed by another truck. The tow chain unhooked and the two trucks stopped for the purpose of reconnecting them. In doing this plaintiff's position was between the two trucks where he stood when defendant's car proceeding in the same direction, struck the rear of plaintiff's truck, shoved it ahead and injured plaintiff. No other cars were near. The road was dusty; defendant was driving forty miles per hour. He testified that he did not see plaintiff's truck, until he was twenty or thirty feet from it and the court said [173 Wash. 174, 22 P.2d 291]: "There was ample evidence to sustain the verdict that the appellants had sufficient time, had they looked, to have seen and have avoided the truck of respondent. Had appellant driver exercised the required degree of care he could have seen the tail-light on respondent's truck when it was more than two hundred feet south of the offending automobile. Appellants will not now be heard to say that they did not see an object which they plainly could have seen had they looked. `The situation is the same as though he had looked and seen the object.'"

In State of Maryland v. Coard decedent stopped his car on a busy street five or six feet from the curb, getting out on the left side near the center of the street to clean the snow and sleet from his windshield. Defendant collided with the rear of the car and struck decedent, killing him. The Virginia court said [175 Va. 571, 9 S.E.2d 458]: "Whenever one sees another in a place of peril from which it appears that he can not extricate himself or where it appears that he is unconscious of his danger, or whenever by the exercise of ordinary care the defendant should have been cognizant of the situation and has a clear chance to avoid an accident with safety to himself, he must take that chance. In short, he is charged with what he saw and with what he should have seen. The antecedent negligence of a plaintiff does not of itself preclude his recovery. Starkly stated, the reason for the rule is this: One can not kill another merely because he is negligent. * * * Applying this rule to the facts under review, it follows that if Coard or his driver saw, or in the exercise of reasonable care should have seen, the Joynes car, standing, as it was, far out into the street, and had a clear chance to avoid a collision, he is liable. Joynes' car was followed by two other automobiles, the drivers of which did see it, turned to the left and passed in safety."

The application of the principle of law under discussion is also illustrated in Dillon v. Sterling Rendering Works. There Dillon was driving a truck at night in a fog. He stopped on his right side of the road with three or four feet of the rear end of his truck on the pavement, without lights. He alighted to remove the frost from his windshield. Defendant was driving in the same direction. Because of freezing temperature mingled with sleet defendant had no visibility except a two inch strip in his windshield. He proceeded, concentrating his vision on the stripe in the center of the highway without making any effort to observe whether there was another car on his side of the road. He sideswiped Dillon's truck on the left side, also struck Dillon and killed him. Defendant got out of his car not knowing what or whom he had struck, and never until then had seen or attempted to see if there was any person or object on the highway ahead of him. Notwithstanding defendant's lack of actual knowledge as to the presence of Dillon and his truck on the highway, it was held that the question of defendant's liability was one for the jury. In Morlan v. Hyatt, supra, defendant saw or could have seen an intoxicated man lying in the road, and the court held that it was his duty to turn out and go around or stop his car.

The majority opinion refers to Restatement of the Law of Torts, II Torts A.L.I. § 480 which was quoted and approved by this court in Nielsen v. Richman, supra, [68 S.D. 104, 299 N.W. 76]. That section is applicable only where the defendant "knew of the plaintiff's situation". The opinion in Nielsen v. Richman, supra, states: "That the defendant knew of the plaintiff's situation is clear from his testimony." That section was therefore properly applied in Nielsen v. Richman, supra, but here we are considering the second category, in which defendant did not but should have known the plaintiff's situation. However, the citation of that rule is consistent with the majority opinion which rejects the second category entirely.

This question is not to be determined according to the ordinary rules relating to actual or constructive knowledge. Those rules have to do with duties which require the reasonable use of one's senses for his own protection. Here the law imposes on a driver certain duties which he owes to others for their safety on the highway. It is the duty of the driver of a motor vehicle to look when by looking he could have seen an obstruction on the highway and thereby avoided a collision. It is also his duty to so drive that he can stop his car within the range of his vision, and to stop his car or pass an obstruction on the left when the way is clear. It appears from the evidence in this case that the driver who immediately preceded Heath looked, saw the truck, and turned to the left passing it without incident. There is no apparent reason why the defendant with reasonable care should not have done as well.

It has been suggested that Heath probably could not have seen Haase under the truck, had he been looking. This case is based upon the contention that defendant's truck collided with the tow truck and drove it back over Haase, not that defendant's vehicle struck Haase. The question is whether defendant saw or should have seen the tow truck, not whether he saw or should have seen Haase. So far as the plaintiff's claim to damages for the death of Haase is concerned it is immaterial whether such death "could have been anticipated or not", if defendant's negligence was the proximate cause of the collision. SDC 37.1901. This statute applies in negligence cases. Davis v. Holy Terror Min. Co.,20 S.D. 399, 107 N.W. 374. The rule applies to negligence cases involving the doctrine of last clear chance. Chapin v. Stickel,173 Wash. 174, 22 P.2d 290.

It is asserted that the injured person's negligence had not terminated but was continuing and concurrent up to the time of the collision. Such negligence is regarded as terminated, though it has placed decedent in a perilous position, after that position has become static or passive or is merely a condition upon which defendant's negligence has operated to cause the injury. 4 Blashfield Cyclopedia of Automobile Law and Practice Pt. 2, § 2814.

The distinction between that negligence which has terminated and the negligence which is continuing and concurrent, and therefore contributory, is clearly pointed out in Nehring v. Connecticut Co., supra. There the court said: "Here it is assumed that the situation of exposure had been created and established by the plaintiff's action before the period of time began within which the defendant acting reasonably might have saved him, and that within that period the plaintiff did nothing to create or materially change that situation by active conduct which was not marked by reasonable care. Under the assumption he remains passive, in so far at least as negligent action is concerned, and can be regarded as careless only in this that he did not awake to his surroundings, and do what he reasonably could to avoid the threatened consequences of a situation which he had already negligently brought about. In such cases the humane, and to our mind the better, reason, all things considered, leads to the conclusion to which our former opinions already cited commit us, and which a large number of cases elsewhere approve, that the want of care on the part of the plaintiff will be regarded as a remote and not a proximate cause." On the other hand, "To say that no matter if one be negligent in going forward into danger, or in creating new conditions or complicating them, the law will protect him and cast upon the other party the responsibility for the result, is to ignore the fundamental principle of contributory negligence, and bring the law upon that subject into hopeless confusion, and merit for it the condemnation which Thompson has so forcibly expressed. 1 Thompson on Negligence §§ 230, 233. The well-considered cases which have directly dealt with this subject agree with us, we think, in our view that active continuing negligence of the kind assumed is to be regarded as contributory in the legal sense."

It must be borne in mind that the second category of the Washington formula excludes those cases in which there is no duty on the part of defendant to discover the danger, such as trespass cases. Those cases are also excluded in which the injured party is active, changing his position and creating new conditions up to the time of the injury, or at least after defendant is no longer able, by the exercise of reasonable care, to avoid the injury, as exemplified in Iverson v. Knorr, 68 S.D. 23,298 N.W. 28, and cases cited. Stripped of all its intracacies and involvements the rule is simply this: "That doctrine, rightly applied in the Chunn Case [Chunn v. City Suburan Ry.,207 U.S. 302, 28 S. Ct. 63, 52 L. Ed. 219], amounts to no more than this, that a negligent defendant will be held liable to a negligent plaintiff if the defendant, aware of the plaintiff's peril or unaware of it only through carelessness, had in fact a later opportunity than the plaintiff to avert an accident." Kansas City Southern R. Co. v. Ellzey, 275 U.S. 236, 48 S.Ct. 80,81, 72 L. Ed. 259.

The distinction between terminated and continuing negligence is fundamental to the question of proximate cause as here presented. In this case it may be assumed that decedent created a situation of exposure by placing his truck in an unlawful position on the highway and then crawling under it to affix the chains, but it must be conceded also that this position was established before defendant Heath arrived on the scene. It had become a condition. Thereafter Haase remained passive. He may have been careless in that he did not awaken to the danger of his surroundings, and did not thereafter change his position or that of the truck, but that does not excuse Heath's conduct in driving so close to the car ahead that he obstructed his own view of the road. Heath testified that he was following the passenger car and was right next to it when it pulled out to pass the tow truck; that he knew it was dangerous to drive so close.

"Q. And nevertheless, you drove that close to the car ahead of you? A. Well, I come onto him as he stopped, or put on his brakes, why, I naturally rolled right up on him, and when I pulled out to go around, my outfit started to slide, so I just kicked it in gear and stepped on it to straighten it out.

"Q. And you knew, when you did that, there was danger of sliding and hitting the tow truck? A. Well, no, I didn't know at the time.

"Q. You didn't know? A. But I knew I would slide in the ditch and tip over if I didn't

"Q. If you did use your brakes. A. Yes." He further testified that the car ahead of him was obstructing his vision completely as to anything ahead and that he saw the tow truck when he was "right on it"; that the lights of the tow truck were shining across the pavement; that he did not know what he had hit until the sheriff told him; that prior to the time the touring car turned out to pass the tow truck it had shut off his view of the road ahead. From all the evidence in this case it appears that decedent's negligence placed him in a position of exposure but that this condition was created before the intervention of Heath's negligence; that decedent did not thereafter by active conduct, create a new hazard or change the situation originally created; that because of defendant Heath's intervening negligence decedent was placed in a situation of peril from which he obviously could not, by the exercise of reasonable care, extricate himself. Decedent's negligence, therefore, was not the immediate cause of the injury because it was broken by the intervening negligence of Heath which preceded the injury, and without which the injury could not have happened. Joslin v. Linder, 26 S.D. 420, 128 N.W. 500. In this course of events, decedent's negligence became the remote, and Heath's negligence became the proximate cause of the collision and consequent death of Haase.

For the reasons above stated it is my opinion that the judgment should be reversed and the cause remanded for a new trial.