Cowan v. Dean

• Decision Date: 23 September 1965
• Docket Number: No. 10181,10181
• Parties: John C. COWAN, Plaintiff and Appellant, v. Mylo M. DEAN and Don Jackson, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 337

137 N.W.2d 337

81 S.D. 486

John C. COWAN, Plaintiff and Appellant, v. Mylo M. DEAN and Don Jackson, Defendants and Respondents.

No. 10181.

Supreme Court of South Dakota.

Sept. 23, 1965.

Henderson & Wallahan, Rapid City, for plaintiff and appellant.

Whiting, Lynn, Freiberg & Shultz, Rapid City, for defendant and respondent Dean.

Bangs, McCullen, Butler & Foye, Rapid City, for defendant and respondent Jackson.

HOMEYER, Judge.

This is a street crossing accident case. Two separate collisions were involved, but plaintiff-appellant sought a single recovery for his injuries from the defendants, Dean and Jackson, alleging joint negligence in his complaint. Each defendant by separate answer denied negligence, alleged contributory negligence more than slight, and cross-claimed for judgment holding the other liable for all or part of any recovery made by plaintiff under SDC 1960 Supp. 33.04A, the Uniform Contribution Among Tortfeasors Law. At the close of plaintiff's case in chief the trial court directed a verdict in favor of the defendant Dean on the basis the evidence showed plaintiff was guilty of contributory negligence more than slight as a matter of law proximately causing or contributing to his injuries. At the same time the court ruled the defendants were independent tortfeasors and that the defense of contributory negligence was not available to the defendant Jackson. The jury was instructed there was no evidence of permanent injury caused by the Jackson vehicle and his liability was limited to damages for aggravation of pain and suffering, loss of earnings, medical and hospital bills proximately caused by the preceding accident involving the Dean vehicle. The jury fixed such damages at $1,600 and judgment was entered thereon. Defendant Jackson paid this judgment and a satisfaction thereof by plaintiff appears in the record. Plaintiff appeals from the judgment of dismissal as to the defendant Dean.

Defendant Dean, respondent herein, has moved to dismiss the appeal on the ground that plaintiff in proceeding to the judgment against the defendant Jackson and subsequently accepting payment of such judgment and issuing his satisfaction is barred from making further claim for damages because the two collisions caused an inseparable injury. We deny the motion.

It is an elementary principle of tort law that where independent torts result in separate injuries, each tortfeasor is separately responsible for his own torts. 86 C.J.S. Torts § 35; 52 Am.Jur., Torts, § 112. The trial court determined not only that there were independent torts, but also that the injuries caused by each were divisible, i. e., capable of being separated, and only permitted the jury to assess damages against the defendant Jackson for aggravation of the injuries caused by the defendant Dean, the first tortfeasor. This ruling has not been challenged. Consequently, we are required to assume that the judgment paid and satisfied compensated only for injuries inflicted by the negligence of the defendant Jackson and plaintiff has not recovered for damages caused by the negligence of the defendant Dean. Husky Refining Co. v. Barnes, 9 Cir., 119 F.2d 715, 134 A.L.R. 1221; Krumvieda v. Hammond, 71 S.D. 544, 27 N.W.2d 583; Rowan v. Becker, 73 S.D. 273, 41 N.W.2d 836; Brown v. Murdy, 78 S.D. 367, 102 N.W.2d 664. We surmise the jury may have encountered difficulty in applying the rule on damages as given by the court which is easier of statement than of application. We express no opinion on its propriety under the record before us.

The accident occurred shortly before 8 a. m. on January 6, 1962, on East Omaha Street in Rapid City about midway between the intersections of La Crosse Street and East Boulevard. Omaha Street is an eastwest paved through street and is also designated as State Highway No. 40. It measures 47' 8"' from curb to curb and is divided into four lanes; the north two lanes are for traffic flowing westward and the south two lanes for traffic moving eastward. The lanes adjacent to a center line are 12' wide and the lanes next to the curb are 11' 10"' in width, of which 2' is a gutter. The curb lanes were referred to in the testimony as parking lanes on which parallel parking was permitted. The street in the area of the accident is practically level with unobstructed visibility to the east for about 4 1/2 blocks and for nearly an equal distance to the west.

Plaintiff, an electrical contractor 62 years of age, lived on East Omaha Street about two blocks east of the accident site. On the morning of the accident he drove his jeep station wagon onto East Omaha from a side street and was proceeding westward driving slowly because of the icy condition of the street and experiencing difficulty in controlling his car. There was a heavy mist in the air and he had turned on his windshield wiper, heater and defroster. A Mrs. Christopherson who lived in Rapid Valley several miles to the east attempted to pass him on the right driving in the so-called parking lane and in the process struck the right curb, lost control of her car which swung to the left in a semicircle and came to rest on the south side of the street after striking a mailbox; her car faced northeasterly partly in the south lane and partly over the curb and on the lawn in front of 221 East Omaha.

Plaintiff stopped his car next to the north curb and he estimated the distance between the back end of the two vehicles at about a car length. He looked both ways and it was clear of traffic and then crossed the street to the Christopherson car. He found Mrs. Christopherson uninjured, but upset and hysterical, and he volunteered to drive her car to the Raben Lumber Yard where she worked which is about a half mile west of the scene of the accident. Plaintiff testified that he looked both ways before recrossing the street; that he looked both ways before crossing the eastbound lanes and again when he got to the center line; that he did not see the car of the defendant Dean; that he might have seen a car coming down Buckingham Hill which was about 4 1/2 blocks to the east; that he was crossing diagonally at a 'kind of running pace, wasn't exactly down right running, but * * * moving faster than a normal walk'; that his reason for recrossing the street was to lock his car before driving Mrs. Christopherson to work; that the last thing he remembers was 'reaching up towards the handle of the car with the intention of locking the car.' Exhibit 9 is a scale drawing of the accident scene prepared by plaintiff before the trial. It shows the width of the traffic lanes, the relative positions of the jeep and the Christopherson car and the diagonal route taken by plaintiff in crossing and recrossing the street. He indicated by circled mark on this exhibit the area where he recollected last being before waking up in the hospital about 7 1/2 hours after the accident. The circled area places him opposite the left door handle and about 2 to 3 feet from his jeep and within the north lane.

Mrs. Christopherson was called as a witness by plaintiff. She testified that the roadway was slick for several miles to the east and icy for several blocks before the accident, and it was very icy at the scene of the accident; that she saw the Dean car strike plaintiff and he rolled completely under the jeep; that he was crossing the street diagonally when this happened; that he had crossed the center line and the collision occurred approximately five feet north of the center line.

A second eyewitness used by plaintiff was J. W. Foster who was traveling eastward. He testified to an extremely icy condition on the street leading up to and at the scene of the accident. He was driving slowly and saw the Christopherson car sitting 'kitty wampus' facing towards the northeast partly on and partly off the curb and a man standing on the left side of the car. This man (Cowan) started to run diagonally across the street and another car traveling west (Dean) hit him and knocked him under the jeep. He fixed the point of impact about 5' north of the center line and about 20' to 30' from the jeep. Foster stopped his car along the south curb almost directly opposite the jeep and rendered assistance to plaintiff who he said had slid under the rear part of the jeep, under the axle with his head directly behind the left rear wheel and his feet to the north.

A deputy sheriff going to work approached from the east stopped his car east of the jeep straddling the westbound lanes, and called an ambulance and notified the city police of the accident. Plaintiff was assisted to his feet and he and Foster were sitting on the back bumper or ledge of the jeep waiting for the ambulance. When it approached from the west, it crossed to the north lane, hit the icy surface, struck the jeep a glancing blow and then collided with the sheriff's car. As a result of the impact between the ambulance and jeep, plaintiff who was in a semicomatose condition fell from the bumper. The issue of negligence of the ambulance driver and resultant injury therefrom was submitted to the jury. Plaintiff has been paid the damages allowed.

Defendant Dean was called as an adverse witness by plaintiff. From a somewhat meager cross-examination it appears that he lives about four miles from where the accident happened; he described the day as hazy-misty and his windshield wipers were operating; his windshield was clear of frost; he drove at varying speeds up to 30 miles per hour from his home to the time of the accident, but he was not asked to give his speed at the time of the accident. A police officer testifying from a written report of the accident made from information supplied by Dean said the latter had estimated his speed at 25 miles per hour when the accident happened. The posted speed limit was 35 miles per hour. There is no evidence of skid marks or where Dean parked his car. He was not asked where plaintiff was when he first saw him or from what...