King v. Oil Company , 72 S.D. 280 ( 1948 )

The question in this case is whether plaintiff's driver was guilty of contributory negligence as a matter of law, or whether his negligence was a question of fact for the jury.

The opinion in this case is based on the so-called "rule of safety" adopted from the State of Michigan and heretofore applied by this court in a number of cases. The rule stated by the Michigan court is that "it is negligence as a matter of law to drive an automobile at night at such speed that it cannot be stopped within a distance that objects can be seen ahead of it." Ruth v. Vroom, 245 Mich. 88, 222 N.W. 155, 62 A.L.R. 1528. Since that decision the rule has been modified by the Supreme Court of Michigan. That court has more recently held that the driver "must see such obstruction as a careful person would have seen." That "it would convert a rule of safety into a rule of danger to hold that drivers" subject to distractions must anticipate, at their peril, unusual hazards on the highway; that when such hazards occur the "rule of safety" is not applicable but the question of the driver's negligence becomes an issue of fact under the circumstances. Garrison v. City of Detroit, 270 Mich. 237,258 N.W. 259.

The question was again before the Supreme Court of Michigan in Bard v. Baker, 283, Mich. 337, 278 N.W. 88, 90. In that case the Michigan court reviewed Ruth v. Vroom, supra, and other Michigan cases in which the "rule of safety" was applied by that court, and said, "Our court, in placing a reasonable construction upon this statute, has held that a person should not be guilty of contributory negligence as a matter of law in failing to see an object which was undiscernable to a person approaching the same in the exercise of ordinary care."

Another Michigan case is Park v. Gaudio, 286 Mich. 133,281 N.W. 565, 567, where the facts were strikingly similar to the facts in this case. The Michigan court sustained the verdict of the jury in favor of plaintiff, saying: "There was an issue of fact as to whether the driver of plaintiff's car was guilty of contributory negligence."

It has long been a well recognized rule of law that a motorist has a right to assume that others will obey the law until he knows, or in the exercise of reasonable care, should know otherwise. He had a right to assume that there was no undisclosed hazard such as unlighted trucks standing in the path of travel blocking the way. Bard v. Baker, 283 Mich. 337, 278 N.W. 88; Central States Electric Co. v. McVay, 232 Iowa 469, 5 N.W.2d 817; Kadlec v. Al. Johnson Const. Co., 217 Iowa 299, 252 N.W. 103.

The evidence shows that plaintiff's driver was driving his transport truck west on U.S. Highway No. 18 at night. As he proceeded westward he passed over a knoll and at that time saw the headlights of two vehicles about 150 yards away, standing on the south side of the road facing east. The first one was a tow truck and the second was a service truck. Behind these two trucks was the Preheim car also facing east, parked near the center of the road. Plaintiff's driver slackened his speed and proceeded cautiously along his own side of the highway with his fog lights turned on and headlights on low beam. He could see the road ahead for a distance of about 150 feet. Plaintiff's driver kept his course by watching and following the right edge of the traveled portion of the highway. During that time defendant's transport truck was also standing on the north side of the road headed west. The rear end of it was opposite the service truck and was entirely west of and behind the headlights of the tow truck. The driver of defendant's truck had put out no flares, and the evidence is sufficient to justify the jury in finding that defendant's truck was without lights. Plaintiff's driver's first warning of danger came when he saw his own lights reflected in the clearance lamps or tail lamps of defendant's truck, 125 to 150 feet away. Plaintiff's driver was then driving at 25 to 30 miles per hour. He immediately applied his brakes, but they did not seem to take hold as they should. It is a fair inference from the record that this failure was due to a frozen surface under the gravel, which condition was unknown to plaintiff's driver and of which he had no warning. It appears that plaintiff's driver could have stopped his car and avoided the collision had he known in time that defendant's truck was parked so as to block the highway. It also appears that after discovering defendant's truck plaintiff's driver could have stopped in time to avoid the collision had the brakes on his car held as they normally would have done. Realizing the danger of the collision plaintiff's driver attempted to pass between the cars on the south side of the road and defendant's truck, but found this passage blocked by the Preheim car. In this situation the plaintiff's driver directed his car against and struck the east rear end of defendant's truck. Plaintiff's speed at the time the collision occurred was 10 or 15 miles per hour.

In my opinion plaintiff's driver had the right to continue on his way until, in the exercise of reasonable care, he knew or should have known that the road was blocked by defendant's unlighted truck. He did not know that the road was so blocked until the headlights of his car were reflected in the tail lamps of defendant's truck. Then plaintiff's driver was "caught in a mesh" where the ordinary safeguards failed him and the question of his contributory negligence in failing to avoid a collision was an issue of fact for the jury. Pokora v. Wabash R. Co.,292 U.S. 98, 104, 54 S.Ct. 580, 582, 78 L.Ed. 1149, 1154, 91 A.L.R. 1049; Mattfield v. Nester, 226 Minn. 106, 32 N.W.2d 291.