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
How later courts described this case
- 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 the defendant.”
- unless the want of ordinary care by both the plaintiff and defendant is a contributing cause of the injury, there is no purpose of making a comparison
Written by the judges who cited it.
The opinion
BIEGELMEIER, Judge
(dissenting).
While the majority opinion leads to the result of dismissal of the action on the facts here, it could well serve as an opinion where a pedestrian was crossing the street in the middle of the block or suddenly stepped out from behind parked cars or ran across the street, all without looking. These are not the facts before us. The evidence indicates, and the opinion recognizes, that this was a business street in mid-town Mitchell with mercantile establishments and parked cars nearby, so busy that a stop and go light was at the east end of the block where the accident occurred. Plaintiff did violate the ordinance in not *603 crossing the street at right angles at the end of the block. It does not appear there was a "regular" or distinguishable crosswalk.
The ordinance also provides a pedestrian crossing a street at any point other than the marked crosswalk (there was none) or this so-called unmarked crosswalk at the end of the block shall yield the right-of-way to vehicles upon the roadway. From the evidence the jury could find, and we must assume it did find, plaintiff looked to the east and defendant's car appeared to be about at the alley a half block away. He concluded he could make it across, but was struck before doing so. The evidence is uncertain and varies somewhat where he was hit. One witness indicated plaintiff was sitting in line with the north-south sidewalk, and was hit 10 to 12 feet east thereof; another placed him on the "west side of the sidewalk, in a line with that". That spot is therefore uncertain, though it must be he was close to the end of the block, not farther than 10 or 12 feet at the most in one version and closer in another. As the opinion states he was "nearing the crosswalk" and further that the record is devoid of measurements and estimates of many of the distances involved. Defendant on the other hand drove upwards of 100 feet while plaintiff was crossing the street in his full view, yet he continued to drive ahead at an unlawful speed until he was, by his own admission, 8 or 10 feet from plaintiff and could not or did not stop in time to avert the accident.
In Cowan v. Dean, 81 S.D. 486 , 137 N.W.2d 337 , the pedestrian was running across the street in the middle of the block and either did not look or failed to see defendant's car in plain sight, the court wrote:
"Where he * * * 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 latter is the situation here and I am not inclined to extend Cowan to a pedestrian adjacent to or, as the opinion concludes, "nearing the crosswalk". While a technical violation of the ordinance to cross as he did, it was not such departure from the *604 conduct of a reasonable or ordinarily prudent person for the court to direct a verdict for defendant, and was a question more properly to be submitted to a jury to determine if plaintiff's negligence was slight compared to defendant's negligence. If plaintiff had been on the crosswalk at the end of the block he would have been free from all negligence. He was at such a place near the end of the block that defendant was bound to observe and drive with due care as to persons crossing at or near it and was not surprised or unaware of the possible presence of persons in the middle of the block.
The legislative power of Mitchell in the ordinance providing that a pedestrian crossing a street at a point other than within a marked crosswalk or unmarked crosswalk yield the right-of-way to vehicles, stated that provision "shall not relieve the driver of any vehicle from the duty to exercise due care for the safety of pedestrians". The court strikes that legislative act from the Mitchell ordinances as it now concludes such driver need not exercise due care but may drive negligently and carelessly run down such a pedestrian without liability. It appears the court is returning to decisions declaring plaintiff negligent as a matter of law as expounded in opinions such as Culhane v. Waterhouse, 1927, 51 S.D. 584 , 215 N.W. 885 . There plaintiff, a farm wife, and her husband were standing off the roadway in a ditch visiting with the driver of an automobile parked on their side of the road. They noticed an oncoming automobile weaving from side to side, driven by a drunken driver and as it neared them it turned into the ditch hitting plaintiff. This court overturned a jury verdict for plaintiff and concluded she was negligent as a matter of law. It was such opinions that gave rise to the passage of the comparative negligence law. SDC 1960 Supp. 47.0304-1. Without that statute the Culhane and similar decisions were not then defensible and since its passage and recent amendments the majority opinion is not in accord with its intent or verbiage and invades the province of the jury.
As the court's opinion dismisses the action and does not reach the claim that damages allowed may be excessive, there is no reason to discuss that question.