# Nugent v. Quam > South Dakota Supreme Court · July 18, 1967 · 82 S.D. 583 URL: https://www.frixlaw.com/law-library/cases/9687437 ## Case - **Full name:** NUGENT, Respondent v. QUAM, Appellant - **Court:** South Dakota Supreme Court - **Decided:** July 18, 1967 - **Citations:** 82 S.D. 583; 152 N.W.2d 371; 1967 S.D. LEXIS 79 - **Precedential status:** Published - **Opinion:** Dissent by Homeyer - **Judges:** Rentto, Hanson, Homeyer, Biegelmeier, Burns, Roberts - **Cited by:** 43 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9687437 ## How later opinions describe it (automated extraction) - stating that the norm of conduct of the ordinarily reasonable and prudent man must be considered in determining the extent to which each party fell below the standard and thus was guilty of negligence or contributory negligence - discussing whether plaintiffs contributory negligence was more than slight in the following terms: “[It] was not small in amount or of little importance or insignificant or unsubstantial or inconsiderable, that is to say, it was not slight in comparison with the negligence of … ## Opinion text HOMEYER, Presiding Judge (dissenting). I respectfully dissent. The record is somewhat incomplete on measurements and distances, but it does show that there are two lanes of travel on First Avenue where plaintiff was injured when crossing; one lane for traffic moving eastward and one lane for traffic moving westward. Plaintiff's testimony is that he looked to the west before entering the south lane, and again "about to the middle" before he entered the north lane, he looked to the east and saw the defendant's car lights at about the alley and figured he could make it across. The accident occurred slightly east of the east crosswalk at the intersection of Rowley Street and First Avenue so it may be concluded that the distance from the alley to the place where plaintiff observed defendant's *601 car and attempted to cross was about 125 feet. In my opinion this evidence presented a jury question on contributory negligence under the rule of Bock v. Sellers, 66 S.D. 450 , 285 N.W. 437 , which was decided before enactment of the comparative negligence law. Language used in Cowan v. Dean, 81 S.D. 486 , 137 N.W.2d 337 , should not be construed otherwise, and in fact is in affirmation of a basic rule of negligence law which has been recognized by this court repeatedly. In Cowan we said: "Where he (a pedestrian) looks and does not see an approaching automobile, or sees it and misjudges its speed or distance from him, or for some other reason concludes that he can cross safely and avoid injury to himself, a jury question is usually presented." The evidence in that case allowed no logical inference that the plaintiff looked and misjudged either the distance or the speed of the vehicle which struck him. The only reasonable inference was that he did not look or did not look effectively. The car which he testified that he saw 4 1/2 blocks away, which would be 1,350 feet or about a 1/4 mile distant when he started running across the street, could not possibly have been the vehicle which struck him, and we said "respondent's car must have been in close proximity when he started across the street — the evidence allows no other conclusion — and we see no reasonable excuse for his failure to see the car which struck him." While the court said in Cowan that "one who crosses a street between intersections is required to keep a constant lookout", I do not interpret this to mean that after he once looks and enters the lane in which he is injured, he must continue to look and observe the vehicle he has seen after he had concluded it would not strike him; that a failure so to do makes him contri-butorily negligent as a matter of law. Rather, while I concede it was the duty of plaintiff to be continuously alert and to look for traffic, which the evidence shows he did before entering the north lane, it was for the jury to determine if his conduct when he concluded he could safely cross was that of an ordinary reasonable man. Giving the plaintiff the benefit of the inferences to which he is entitled, the jury could find the plaintiff was not negligent. See Pfisterer v. Key, 218 Ind. 521 , 33 N.E.2d 330 . *602 The opinion does not rely upon violation of the city ordinance prohibiting crossing the street except at a right angle and at a regular crosswalk at the end of a block in the business section as establishing negligence per se. I concur in this position. SDC 1960 Supp. 44.0318, which is a yield right-of-way statute, similar to the Mitchell right-of-way ordinance, provides: "Local authorities in their respective jurisdictions may by ordinance require that at intersections where traffic is controlled by traffic control signals or by police officers, pedestrians shall not cross a roadway against a read or 'Stop' signal, and between adjacent intersections so controlled shall not cross at any place except in a marked or unmarked crosswalk." The record is clear that the intersection west of where plaintiff was injured, that is, at First Avenue and Rowley Street, was not controlled by traffic control signals or by police officers. The ordinance could not supersede the statute and when it attempted to prohibit crossing where the accident occurred, it was beyond the power delegated to the city. In Wilton v. Henkin, 52 Cal.App.2d 368 , 126 P.2d 425 , it was held that an ordinance which conflicted with state law in the regulation of pedestrian crossing of streets was void. See also Annot. 147 A.L.R. 522 , 560, 561. In my opinion, liability under the verdict can and should be sustained without reliance upon the comparative negligence statute. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9687437. Public record. Not legal advice.