Kaffl v. Moran

Brune, C. J., delivered the opinion of the Court. This suit was brought by the plaintiff-appellant to recover for property damage to his automobile when it was struck by the defendant-appellee’s car. The case was tried before a jury, which returned a verdict for the defendant and judgment was entered thereon. On appeal therefrom the appellant contends that the trial court erred in not granting his motion for a directed verdict on the ground of primary negligence on the part of the defendant, and that the trial court erred in instructions to the jury with respect to the care required to be exercised by the defendant and the avoidability or unavoidability of the accident.

The collision giving rise to this suit was one of a series of accidents involving a total of eight or nine automobiles which occurred in the northbound lane of the Ritchie Highway after dark on a December evening. The weather was wet, snowy and sleety and the roadway was icy and slippery. Two collisions had occurred at the foot of a hill about 450 feet long before the plaintiff’s daughter, who was driving his car, arrived on the scene. First, a Volkswagen slid and collided with a Chrysler, then a Ford driven by a witness who had seen the first two ⁴⁷⁶ cars collide came down the hill, and despite the witness’ attempts to use his brakes, slid and struck the Chrysler, turned 180 degrees, and wound up in the grass plot between the two northbound and the two southbound lanes of the highway.

Next the plaintiff’s car, a Corvair, slid down the hill and collided with a Pontiac which apparently was preceding it down the slope. The Corvair wound up crossways of and partially in each of the two northbound lanes. Then the defendant came down the hill driving his Buick, slid, and collided with the plaintiff’s Corvair. Some little while later a Comet and a Chevrolet came down the hill and collided with each other.

After several of this assorted group of cars had gotten into difficulty but before the defendant arrived, two or more men with flashlights had gone up the hill to attempt to direct traffic. The evidence is not clear as to when the defendant could or should have seen them. His testimony indicates that he did not see any of them until after the accident, that he first saw cars standing in the road ahead when he was about 100 or 125 feet from them, that his speed was about twelve or fifteen miles an hour, that he tried to pull to the right to get off on the gravel shoulder but that he could not turn his car, and that he tried to use his brake but could not stop or even slow down on the ice. He did not attempt to pull to the left.

Each party moved for a directed verdict, and the trial judge, in denying each motion, briefly reviewed the evidence most favorable to the opposite party. It will suffice here to quote his summary of the evidence which caused him to deny the plaintiff’s motion. It is as follows: “Well, the testimony most favorable to the Defendant, which the Court would consider in a motion by the Plaintiff for a directed verdict, is to the effect that he was driving slowly down the hill, that he was driving at a very moderate speed, that he was braking the car as he came down, that when he got one hundred feet away he added pressure to his brake, and his testimony is that regardless of what he could have done, that under the circumstances at that time he could not have avoided the collision. The Court also cannot close its eyes to the fact that six or seven other cars had' accidents at the same spot.

The Court is of the opinion, after ⁴⁷⁷ considering all of the evidence, that it is a matter for the jury to decide.” We see no occasion to elaborate further on the facts. We think that the trial judge did not err in refusing to direct a verdict against the defendant. The appellant’s first objection to the instructions is in substance that the court refused or failed to instruct the jury that the operator of a motor vehicle must exercise unusual care to keep his vehicle under proper control on a slippery road, particularly when doing downhill. The short and sufficient answer to this contention is that the trial court did so instruct the jury.

After stating that it was the defendant’s duty, in approaching the scene of the accident, as he was coming down the hill, and up until the time of the collision, to keep his car under reasonable