Carpenter v. City of Belle Fourche

• Decision Date: 26 April 2000
• Docket Number: No. 20901, No. 20923.
• Citation: 609 N.W.2d 751,2000 SD 55
• Parties: Keith D. CARPENTER and Sherri Carpenter, Husband and Wife, Plaintiffs and Appellees, v. CITY OF BELLE FOURCHE, A Municipal Corporation and John J. Wainman, Jointly and Severally, Defendants and Appellants.
• Court: South Dakota Supreme Court

609 N.W.2d 751

2000 SD 55

Keith D. CARPENTER and Sherri Carpenter, Husband and Wife, Plaintiffs and Appellees, v. CITY OF BELLE FOURCHE, A Municipal Corporation and John J. Wainman, Jointly and Severally, Defendants and Appellants.

Nos. 20901, 20923.

Supreme Court of South Dakota.

Argued February 16, 2000.

Decided April 26, 2000.

Edward C. Carpenter and Gregory Strommen of Costello, Porter, Hill, Heisterkamp, Bushnell, & Carpenter, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.

Jerry D. Johnson of Banks, Johnson, Colbath & Kerr, Rapid City, South Dakota, Attorneys for defendants and appellants.

KONENKAMP, Justice.

[¶ 1.] While speeding to approach and "pace" two motorcycles, a city police officer struck and injured a motorist who was turning at an intersection. Following a trial for negligence against both the city and its officer, the jury found for the motorist. The defendants appeal, contending the motorist was contributorily negligent as a matter of law and the trial court erred in denying their motions for summary judgment, directed verdict, judgment notwithstanding the verdict, and new trial. We affirm, as the issues of negligence were properly left for the jury.

Facts

[¶ 2.] This two-car automobile collision occurred on March 26, 1993, in Belle Fourche, South Dakota. We relate the incident in a light most favorable to the verdict. Alberts v. Mutual Serv. Cas. Ins. Co., 80 S.D. 303, 123 N.W.2d 96, 99 (1963). At 6:40 p.m., shortly after sundown, Belle Fourche police officer John Wainman turned his patrol car off Ziebach Street onto Highway 85, and drove north toward town. In this area, Highway 85 has four lanes, two northbound and two southbound. Where Wainman entered, the highway curves slightly. After turning onto the highway, the officer heard what sounded like two motorcycles drag racing two blocks ahead of him. He turned into the outside (curbside) lane and passed a light-colored Ford pickup traveling north on the inside lane. He accelerated attempting to get near enough to "pace" the motorcycles. At the time, the posted speed limit was 45 m.p.h. Wainman's speed exceeded 60 m.p.h. At no time did he activate his siren or emergency lights.

[¶ 3.] Meanwhile, Keith Carpenter drove west on Summit Street, approaching the intersection of Highway 85 north of where Wainman had entered the highway. Tammy Halvorsen, the owner of the car Keith was driving, was a passenger. Keith had been repairing the wiring in Halvorsen's car, a 1981 Chevrolet Chevette, and was taking it to his home to complete the work. Keith's wife, Sherri, was driving the Carpenters' car directly behind them. When Keith reached the intersection, he brought the car to a complete stop, but the evidence conflicts on whether he checked for traffic before pulling into the intersection. Keith testified during his deposition taken two years before trial that he had no recollection of looking either right or left before he pulled out, but that he had waited at the intersection for traffic to go by. At trial, Keith testified that he looked to the right, to the left, and then back to theright before proceeding. Sherri also testified at trial that as she sat in the car behind him she saw Keith look in both directions.

[¶ 4.] Keith began turning left onto Highway 85, headed toward the southbound lanes. Officer Wainman was approximately 500 feet away. When he spotted Keith pulling out, he attempted to avoid a collision by braking and swerving left into the inside lane, but in vain. Wainman's patrol car skidded 100 feet, then slammed into the driver's side door of the Chevette, just as its front wheels crossed the centerline of the four-lane highway. The Chevette came to rest in the middle of the highway, 100 feet north of the point of impact. The patrol car slid off the road on the southbound side, became airborne, and then landed in the ditch. Both cars were destroyed. Keith was severely injured. He was transported by air ambulance to a trauma unit in Billings, Montana.¹

[¶ 5.] The Carpenters sued the City of Belle Fourche and its employee, Officer Wainman. In turn, these defendants sued the two motorcyclists for contribution, but later dismissed the claim with prejudice. The circuit court denied the defendants' motions for summary judgment. Following a weeklong trial, a jury returned a verdict for the Carpenters, awarding Keith $450,000, and Sherri $22,000. Motions for judgment n.o.v. and new trial were denied. On appeal, the defendants assert that the trial court erred in denying (1) their motion for summary judgment, (2) their motions for mistrial and for a new trial based on the use of an unsworn statement during trial, (3) their motions for a mistrial and for a new trial based on a reference made to their dismissal of the motorcyclists, (4) their motions for directed verdict and for a judgment n.o.v. on the issue of liability, and (5) their proposed jury instructions. For clarity, we combine in Part A below the contributory negligence arguments in Issues 1 and 4.

Standard of Review

[¶ 6.] "Under our familiar standard for reviewing summary judgments, we decide only whether genuine issues of material fact existed and whether the law was correctly applied." Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635. When making this analysis, we view the evidence in the light most favorable to the nonmoving party and resolve reasonable doubts against the moving party. Satellite Cable Services, Inc. v. Northern Elec. Coop., Inc., 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480. As we take an independent review of the record, we are not bound by the trial judge's factual assessments in granting summary judgment. Fritzel v. Roy Johnson Constr., 1999 SD 59, ¶ 7, 594 N.W.2d 336, 338 (citing Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 7, 580 N.W.2d 606, 609).

[¶ 7.] A new trial motion rests within sound judicial discretion of the court, and we will not disturb the judge's decision absent an abuse of discretion. Schmidt v. Royer, 1998 SD 5, ¶ 9, 574 N.W.2d 618, 621 (citing Tunender v. Minnaert, 1997 SD 62, ¶ 9, 563 N.W.2d 849, 851) (other citation omitted). We presume the correctness of evidentiary rulings. State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129 (citation omitted). In reviewing these rulings, error must be shown to be an abuse of discretion, and must be prejudicial to the appellant. State ex rel. Dep't of Transp. v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263. "The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion." Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d at 129 (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986)). "A jury's verdict should not be set aside `except in extreme cases where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law....'" LDL Cattle Co. v. Guetter, 1996 SD 22, ¶ 13, 544 N.W.2d 523, 526-27 (quoting Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983)); Lewis v. Storms, 290 N.W.2d 494, 497 (S.D.1980) (citation omitted).

Analysis and Decision

A. Contributory Negligence as a Matter of Law

[¶ 8.] Under the "through highway" or "boulevard" rule, as it is sometimes called, a driver approaching an intersection from an unfavored road must yield the right-of-way to drivers on the "through highway" (SDCL 32-29-2) already in or approaching the intersection. See Davis v. Knippling, 1998 SD 31, ¶ 7, 576 N.W.2d 525, 527. Correspondingly, our stop sign law provides that after stopping, a driver "may not proceed into the intersection until certain that such intersecting roadway is free from oncoming traffic which may affect safe passage." SDCL 32-29-2.1.² The defendants contend in both Issues 1 and 4 that by summary judgment, directed verdict, or judgment n.o.v., the trial court should have found Keith Carpenter contributorily negligent more than slight, thus barring him from recovery.³ Such rulings are ordinarily unobtainable in negligence actions, for the standard of reasonableness must often be applied to conflicting testimony. Only when the evidence leads but to one conclusion can negligence be found as a matter of law. Trammell v. Prairie States Ins. Co., 473 N.W.2d 460, 462 (S.D. 1991) (citations omitted). Most often, questions of contributory negligence in intersectional accidents are for the jury, especially when reasonable persons might fairly reach different conclusions. Blashfield Automobile Law and Practice § 114.81 (3rd ed. 1965).

[¶ 9.] Contributory negligence issues have been taken from the jury when the evidence appeared indisputable. In McKiver v. Theo. Hamm Brewing Co., 67 S.D. 613, 297 N.W. 445 (1941), this Court barred recovery to an unfavored driver in an intersection collision because the driver was contributorily negligent as a matter of law. McKiver, after proceeding past a stop sign, was struck by Rupp, who was speeding on a through road. "Rupp was negligent in approaching the intersection at an excessive speed, but if [McKiver] was negligent in failing to stop or in driving into the intersection without heeding the approach of the car driven by defendant Rupp, such negligence without doubt proximately contributed to the collision and there can be no recovery." Id. at 447. That Rupp was speeding made no difference in the analysis: "It is manifest that [McKiver] either did not look or if he looked and observed what he was bound to see he would have observed the approaching car and would have avoided the collision." Id. at 448. The plaintiff's verdict was reversed and the action ordered dismissed.

[¶ 10.] Four years after McKiver, this Court again ruled as a matter of law that the unfavored driver was guilty of contributory negligence more than slight because it was that driver's "duty to stop and to make, before and after entering the intersection, observations and to adapt his movements to accord...