Alley v. Siepman
| Decision Date | 10 January 1974 |
| Docket Number | No. 11086-,11086- |
| Parties | Robert ALLEY, as guardian ad litem for Cheryl Alley, a minor, and Robert Alley, Individually, Plaintiffs and Respondents, v. Bernard Alfred SIEPMAN, Defendant and Appellant. a-JMD. |
| Court | South Dakota Supreme Court |
Lakeman & Krause, Mobridge, for plaintiffs and respondents.
Costello, Porter, Hill, Banks & Nelson, Rapid City, for defendant and appellant.
This is an action brought by Robert Alley as guardian ad litem to recover damages for personal injuries sustained by the plaintiff, Cheryl Alley, age 15, in an automobile-pedestrian accident, and to also recover the medical and hospital expenses incurred by him because of the accident. A verdict was returned in favor of the plaintiff. Defendant appeals.
The accident occurred on April 24, 1970, at approximately 10:15 p.m. on Highway 20 in Isabel, South Dakota. Highway 20 runs north and south through Isabel and constitutes its Main Street. The speed limit is 35 miles per hour. The plaintiff, along with her younger sister, at the time of the accident was enroute to a dance at the town's community hall. Plaintiff's brother drove both girls from their home in Isabel to the community hall. After proceeding in a northerly direction on Main Street (Highway 20), he pulled off along the right-hand or east side of the street opposite the community hall which is located in the center of the block. There were no traffic controls or marked crosswalks on either end of this block. After the girls got out of the car he continued north. Standing on the east side of the street, the plaintiff testified she saw a car coming from the south and one from the north. The car to the north was, according to the plaintiff on direct examination, one and one-half blocks away, but on cross-examination she stated it was approximately one quarter of a mile away. The girls then proceeded to cross the street in a westerly direction toward the community hall and had walked to a point just past the center line of the street when the automobile driven by the defendant struck both girls. The plaintiff testified that she did not see the vehicle that struck her unless it was the same one she had observed coming from the north on Main Street.
The defendant, a 73-year-old man who had resided in Isabel for 21 years, testified that he and his companion were returning to Isabel. As he was proceeding south on Main Street he noted that the traffic was heavier than usual; several cars were parked on both sides of the street, and some people were in the vicinity of the community hall. Upon inquiry, his passenger informed him there was a school play and dance at the hall that evening. The defendant further testified that he was traveling about 25 miles per hour when his passenger saw the girls and shouted a warning. Impact occurred immediately thereafter. The defendant stated that he did not see the two girls prior to impact.
The testimony of the eyewitnesses to the accident is in conflict. Plaintiff's eyewitnesses, who were in the vehicle the plaintiff said was coming from the south, testified they saw the two girls alight from the Alley vehicle, pause, and then proceed across in front of their (the eyewitnesses') vehicle to the point of impact. Defendant's eyewitnesses, on the other hand, state that the vehicle in which plaintiff's eyewitnesses were riding had proceeded past the point where the girls had gotten out of the Alley vehicle and the girls had in fact run out into the street behind this vehicle.
It is the defendant's first contention that the plaintiff should be held contributorily negligent as a matter of law in that she was in violation of SDCL 32--27--4 ('jaywalking' statute). Ordinarily, the violation of a statute or ordinance, unless under certain circumstances which are excusable or justifiable, constitutes negligence Per se if such violation is the proximate cause of the injury to the person for whose protection the statute was enacted. Zeller v. Pikovsky, 1938, 66 S.D. 71, 278 N.W. 174; McCleod v. Tri-State Milling Co., 1946, 71 S.D. 362, 24 N.W.2d 485. The reason for this rule is that the statute or ordinance becomes the standard of care or conduct to which the reasonably prudent person is held. Failure to follow the statute involved constitutes a breach of the legal duty imposed and fixed by such statute. Since negligence is a breach of a legal duty, the violator of a statute is then negligent as a matter of law. Albers v. Ottenbacher, 1962, 79 S.D. 637, 116 N.W.2d 529. Of course, the same rule also applies wherein the plaintiff has violated a statute or ordinance. Such violation will constitute contributory negligence as a matter of law, but again, only if the statute was intended for the benefit of the defendant and the violation was a proximate cause of plaintiff's injuries. See 57 Am.Jur.2d, Negligence, § 315.
A problem, however, arises when this rule is applied in a case such as we have before us. Generally, a minor is not held to the same standard of conduct as that of an adult unless he engages in an activity normally only undertaken by adults. Wittmeier v. Post, 1960, 78 S.D. 520, 105 N.W.2d 65. The objective standard of the reasonable prudent person does not apply to a minor, but rather a special (subjective) standard of care is used which takes into account his age, intelligence, experience and capacity. Finch v. Christensen, 1969, 84 S.D. 420, 172 N.W.2d 571.
Quoting from Prosser on Torts, 3rd Ed. § 32, p. 153 at 157:
'Children * * * obviously cannot be held to the same standard as adults, because they cannot in fact meet it. It is possible to apply a special standard to them, because 'their normal condition is one of incapacity and the state of their progress toward maturity is reasonably capable of determination,' and because there is a sufficient basis of community experience, on the part of those who have been children or dealt with them, to permit the jury to apply a special standard.
Therefore, we are presented with the question of which rule should take precedence. If the statutory violation rule is followed, the minor will as a matter of law be held (contributorily) negligent with no consideration given to the rule that he should be judged by the standard of a minor of like age, intelligence, experience and capacity. On the other hand, if consideration is given to the special standard of care rule applicable to minors, the violation of a statute or ordinance may still be taken into account in ascertaining whether he has met the special standard of care. 174 A.L.R. 1170, 1172.
We have in our prior decisions held that contributory negligence is a question for the jury when the case involved a minor plaintiff. Alendal v. Madsen, 1937, 65 S.D. 502, 275 N.W. 352; Stone v. Hinsvark, 74 S.D. 625, 57 N.W.2d 669; Finch v. Christensen, 1969, 84 S.D. 420, 172 N.W.2d 571.
In the case of Rosenau v. City of Estherville, 1972, Iowa, 199 N.W.2d 125, the Iowa court stated:
We are of the same opinion. Where a minor not engaged in a primarily adult activity violates a statute or ordinance, that violation does not in and of itself constitute negligence Per se, but may be considered in determining whether the minor met the special standard of conduct which would ordinarily be exercised by a minor of like age, intelligence, experience and capacity under similar circumstances. However, if in the trial judge's opinion the minor's conduct was so unreasonable in view of his estimated capacity, he may still find the minor to be negligent or contributorily negligent as a matter of law.
Under the facts of this case, the trial judge was correct in his refusal to instruct that the plaintiff was contributorily negligent as a matter of law.
The defendant next argues that the trial court prejudicially erred in admitting evidence dealing with custom and practice. Several of the plaintiff's witnesses testified that they had observed on many occasions persons, adult and children alike, crossing the...
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