Crabb v. Wade
| Decision Date | 30 April 1969 |
| Docket Number | No. 10568,10568 |
| Citation | 167 N.W.2d 546,84 S.D. 93 |
| Parties | Samuel W. CRABB, Special Administrator of the Estate of John Allan Rippel, Deceased, Plaintiff and Respondent, v. Sylvester WADE, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Costello, Porter, Hill, Banks & Nelson, Rapid City, for defendant and appellant.
Whiting, Lynn, Freiberg & Shultz, Rapid City, for plaintiff and respondent.
This Wrongful Death action followed a motor vehicle-pedestrian accident in which John A. Rippel was killed. Damages in the amount of $30,000 were sought and the jury awarded $20,000. On appeal defendant primarily contends decedent Rippel was guilty of contributory negligence more than slight as a matter of law.
Viewing the evidence in the light most favorable to plaintiff, it appears decedent Rippel was an airman stationed at the Ellsworth Air Force Base. He was 22 years of age, single, and an exceptionally bright, intelligent, and capable young man. About 9:00 in the evening of May 27, 1966 he was returning to the Base walking north on the right-hand side of the shoulder along the access road leading to the Main Gate. He was wearing suntan trousers and a green jacket. While so walking he was struck and killed by a hit and run driver.
There were eyewitnesses to the accident--Terrance Updegrove and Deanene Greer. Updegrove's father was in the Air Corps and lived near the Air Base. Terrance attended the University of Utah and was home on vacation. As this young couple approached the Air Base the same car passed them twice. After it passed the first time it turned off into the Commercial entrance to the Air Base, but shortly afterwards overtook and passed again. It was a 1962 or 1963 Chevy II black station wagon driven by a man. It was being driven fast, recklessly, and weaved back and forth. Terrance described the erratic manner in which the station wagon was being driven as 'inconsistent * * * He would just stay on this side of the road, and then drive on the other side, and then back to the one side.'
When the two cars reached the access road leading to the Main Gate of the Air Base, Updegrove was following 50 to 75 yards behind the station wagon. After the station wagon passed through the interstate underpass Updegrove saw ahead in the headlights of the station wagon what appeared to be a pedestrian walking 'on the right-hand side of the shoulder.' The station wagon drifted from the center of the road to the right until it appeared to hit the pedestrian. The station wagon continued on. Updegrove stopped and looked around, but could find nothing. Apparently Rippel's body was hidden in the darkened depression of the ditch from his headlights because it was discovered there the next morning. After searching and finding nothing, Updegrove reported to the air policeman on duty at the Air Base Gate the fact he had seen a black Chevy II station wagon driven in a reckless manner. An autopsy revealed Rippel received and died of multiple severe injuries.
Defendant Wade did not appear or testify at the trial, but admitted in his answer that a 1963 Chevy II black station wagon struck and caused Rippel's death as alleged in the complaint. He did not admit being the owner or operator. Proof of ownership was immaterial and the evidence leaves no doubt defendant was operating the station wagon and he was under the influence of intoxicating liquors at the time of the accident.
The evidence shows defendant consumed numerous beers, three or four shots of whiskey, a rum and coke, several vodkas and he purchased two six-packs of beer and two pints of whiskey during the day and evening immediately preceding the accident. He arrived at the trailer court near the Air Base where he lived about 9:00 in the evening driving a 1963 Chevy II black station wagon. He drove the wagon recklessly into the trailer court and had considerable difficulty parking in the driveway near his trailer. When he got out of the car he had to hang onto the top to maintain balance. An argument with his wife followed in which she told defendant 'she was sick and tired of his drinking * * * and was going in the house to get the baseball bat'. Defendant then drove off in the Chevy station wagon and returned in about half an hour. The wagon was left parked near the Wade trailer house. The next morning investigation revealed damage to the right front side of the vehicle. There was a hole in the lower right-hand corner of the windshield, the antenna was broken, and the right front post was damaged.
At the time of the accident plaintiff's decedent was walking along the right-hand side of the highway in violation of the following statutory rule of safety:
'Where sidewalks are not provided any pedestrian walking along or upon a highway shall, when practicable, walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction'. Ch. 151, Laws 1961.
Accordingly, the trial court instructed the jury this statute established the standard of care of an ordinarily careful and prudent person and violation constituted negligence as a matter of law. The issues of proximate cause and the comparative extent of decedent's contributory negligence were submitted to the jury. Defendant contends the court should have directed a verdict in his favor as decedent's negligence as a matter of law, was more than slight and a contributing cause of his death. Flanagan v. Slattery, 74 S.D. 92, 49 N.W.2d 27.
Our comparative negligence law was simplified by amendment in 1964 by (1) requiring the determination of plaintiff's 'slight' contributory negligence to be made in direct comparison with the negligence of the defendant in each particular case rather than comparing it abstractly with the fictitious ideal, reasonable, prudent man as formerly required (see Dwyer v. Christensen, 76 S.D. 201, 75 N.W.2d 650, 56 A.L.R.2d 734), and (2) by eliminating the need of showing defendant's negligence 'gross' in comparison. Our law now reads:
'In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant but in such case, the damages shall be reduced in proportion to the amount of plaintiff's contributory negligence.' Ch. 149, Laws 1964.
As pointed out in Nugent v. Quam, 82 S.D. 583, 152 N.W.2d 371, there can be no application of this law unless both parties are guilty of negligence proximately causing or contributing to the injuries complained of. The negligence of both parties must, therefore, be first considered and determined separately by the common standard of the reasonably prudent man. If the parties are both found to be causally negligent, the jury then determines if the contributory negligence of the plaintiff is slight in comparison with the negligence of the defendant.
The court indicated in Nugent the word 'slight' means small in quantum in comparison with the negligence of the defendant. However, by eliminating the 'gross' comparison feature and by requiring direct comparison of the parties' negligence the 1964 amendment to our comparative negligence act, in effect, enlarged or expanded the scope of the term 'slight ocntributory negligence'. It is now a relative and variable term which defines precise definition and prohibits an arbitrary mathematical ratio limitation. Broadly speaking, our comparative negligence act now applies whenever a plaintiff's contributory negligence is determined to be small in comparison with defendant's negligence. What constitutes 'slight' or 'small' contributory negligence naturally varies with the facts and circumstances in each case. The same conduct constituting slight or small contributory negligence in one case may be great in others when compared with the negligent acts of different defendants under different facts and circumstances.
After reviewing the evidence in Nugent the court concluded plaintiff's contributory negligence was more than slight as a matter of law as it equaled or nearly equaled the negligence or want of...
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