Estate of He Crow by He Crow v. Jensen

• Citation: 494 N.W.2d 186
• Decision Date: 21 January 1993
• Docket Number: No. 17692,17692
• Parties: ESTATE OF Pamela HE CROW, deceased, by Diane HE CROW, Administratrix ad Litem for Estate of Pamela He Crow, William He Crow, Carey Rouillard, and Audra Rouillard, by their Guardian ad Litem, Diane He Crow and Clarence Rouillard, Jr. by his Guardian ad Litem, Clarence Rouillard, Sr., and Clarence Rouillard, Sr., on behalf of himself, Plaintiffs and Appellees, v. Ron JENSEN, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 186

494 N.W.2d 186

ESTATE OF Pamela HE CROW, deceased, by Diane HE CROW,

Administratrix ad Litem for Estate of Pamela He Crow,

William He Crow, Carey Rouillard, and Audra Rouillard, by

their Guardian ad Litem, Diane He Crow and Clarence

Rouillard, Jr. by his Guardian ad Litem, Clarence Rouillard, Sr., and Clarence Rouillard, Sr., on behalf of himself, Plaintiffs and Appellees, v. Ron JENSEN, Defendant and Appellant.

No. 17692.

Supreme Court of South Dakota.

Argued May 27, 1992.

Decided Dec. 16, 1992.

Rehearing Denied Jan. 21, 1993.

Robert G. Mines, Hot Springs, Rita Haverly Allen of Hagen, Wilka, Schreier and Archer, Sioux Falls, for plaintiffs and appellees.

Donald A. Porter of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

The Estate of He Crow (decedent) brought this wrongful death action in Shannon County against defendant Jensen. Decedent's three children and one step-child brought personal injury actions against Jensen for injuries sustained in the same incident. A jury trial was held before the Honorable Merton B. Tice, Jr., on May 7, 1991. The jury returned a verdict for the Estate in the amount of $1,000,000. The trial court entered judgment against Jensen on May 31, 1991. Jensen moved for a new trial, judgment notwithstanding the verdict and remittitur. Trial court denied these motions in an order dated September 21, 1991. Jensen appeals from the judgment and order denying his motions, by notice of appeal filed on September 27, 1991. Based upon error as set forth in Issues II and III, set forth below, we reverse and remand.

On appeal, Jensen raises the following issues:

I. Did the issue of contributory negligence constitute a question of fact for the jury?

II. Did trial court err in finding Jensen's agent negligent per se?

III. Did certain statements by the Estate's counsel during closing argument constitute grounds for a mistrial?

IV. Did trial court abuse its discretion in jury selection?

Due to our determination, we need not consider Jensen's Issue IV.

FACTS

This wrongful death action arose from a traffic accident involving Pamela He Crow's (decedent's) automobile and Jensen's farm combine, resulting in decedent's death.

On October 23, 1989, decedent, with her three children and one step-son, was traveling west on Highway 18 between Oelrichs and Pine Ridge, South Dakota, in her 1978 Datsun. They entered a stretch of road which involved driving up a hill, then descended onto a gradual decline leading to a narrow bridge over White Clay Creek. About the time decedent's automobile hit the crest of the hill, Jensen's combine (driven by an employee of Jensen) prepared to enter the bridge traveling east. The combine header was 24 feet 9 inches wide. The bridge width was 30 feet wide. The combine entered the bridge at a speed of approximately three miles per hour.

Testimony admitted at trial attested to the fact that as decedent's car hit the top of the hill, the sun blinded decedent's eyes and the eyes of the occupants. Decedent's step-son testified that the occupants of the automobile could not see the bottom of the hill where the bridge was located. Decedent's expert witness testified that decedent's range of vision was less than one hundred feet, and may have been as little as ten feet. The combine was on the bridge when decedent finally saw it as she entered a shaded area near the bridge. Decedent attempted to brake but did not have enough time and space, with the collision ensuing. The Estate's expert witness testified that decedent was only able to slow her car to 34 miles an hour before colliding with the combine.

Further discussion of pertinent facts to each related issue in dispute will be addressed in our consideration of those issues.

Standard of Review

Historically, we have held that it is within the trial court's judicial discretion if a new trial should be granted, and we will not disturb that decision absent a clear showing of abuse of discretion. Kusser v. Feller, 453 N.W.2d 619, 621 (S.D.1990). An abuse of discretion occurs only if no "judicial mind in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion." Estate of Pejsa, 459 N.W.2d 243, 245 (S.D.1990). Jensen v. Weyrens, 474 N.W.2d 261, 263 (S.D.1991).

DECISION

I. Did the issue of contributory negligence constitute a question of fact for the jury?

Jensen strongly argues that the issue of contributory negligence should not have been submitted to the jury for determination. We disagree. Jensen argues that trial court abused its discretion in not granting his motion for a new trial, and, therefore, the judgment entered against him was improper. We agree that a new trial should be granted as set forth in our later discourse on different issues. This objection is based on the assertion that decedent's negligence was more than slight, as a matter of law, in comparison with Jensen's negligence.

In considering the issue of whether decedent was more than slightly contributorily negligent as a matter of law, thereby barring any recovery, we must examine our statute referring to comparative negligence. SDCL 20-9-2 provides:

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.

In considering the application of this statute to contributory negligence cases, we have said that, "[t]he comparison is made with the negligence of the defendant, rather than with the ordinarily prudent person ..." Lovell v. Oahe Elec. Co-op, 382 N.W.2d 396, 399 (S.D.1986). However, this Court must also consider, "the norm of conduct of an ordinary, reasonably prudent person ... in determining the extent to which each party fell below that standard, and thus, was found negligent or contributorily negligent." Mitchell v. Ankney, 396 N.W.2d 312, 313 (S.D.1986); Lovell, 382 N.W.2d at 399. The term "slight" in SDCL 20-9-2 has been defined to mean "small in quantum in comparison with the negligence of the defendant." Crabb v. Wade, 84 S.D. 93, 167 N.W.2d 546, 549 (1969); Estate of Largent v. United States, 910 F.2d 497, 499 (8th Cir.1990). It is a question of fact which varies with the facts and circumstances of each case whether a plaintiff's negligence is slight compared to that of the defendant. Urban v. Wait's Supermarket, Inc., 294 N.W.2d 793, 796 (S.D.1980); Estate of Largent, 910 F.2d at 499.

A contributorily negligent plaintiff may not, however, recover anything in South Dakota if the plaintiff's negligence is more than slight in comparison with the negligence of the defendant. SDCL 20-9-2. Here, we cannot say that, as a matter of law, the decedent's conduct constituted negligence which was more than slight. Rather, we characterize this as a classic factual dispute which must be determined by the triers of fact, the jury. We refer to a Supreme Court case in Pennsylvania. See, Gillespie v. Bentz, 401 Pa. 588, 166 A.2d 25 (1960). The Pennsylvania case also involved impairment of vision by the sun. The Supreme Court of Pennsylvania refused to hold that the driver was guilty of contributory negligence as a matter of law. In its rationale, the Pennsylvania court reflected that the driver was not required by any rule of law to anticipate that a vehicle would be blocking the highway.

Was the combine blocking the highway? Was it blocking the highway so that the He Crow vehicle could not pass through the bridge? Could the He Crow vehicle have avoided the combine? These are questions which a jury should decide. In Gillespie, the court dismissed the idea that the vehicle should have made an instantaneous stop to avoid a collision as it might precipitate another peril. Under South Dakota law, a driver may assume that other drivers will exercise ordinary care on the highways. Burmeister v. Youngstrom, 81 S.D. 578, 139 N.W.2d 226 (1965). Pamela He Crow, deceased, it can be argued, had the right to believe that Jensen would exercise ordinary care and, thus, not block both sides of the traveled portion of the road. We note that the driver of the combine testified that he did not travel faster through the bridge because he was afraid he might damage the combine. It might well be argued that it would have been better judgment to hurriedly cross the bridge to avoid a longer exposure to danger.

An accident reconstruction expert for the Estate testified that the combine was oversized and was taking up the entire roadway and that the driver of the combine did not stop or get off the road or make any effort to stop the combine. Further, this expert testified that the combine driver could easily have moved over to the right, by lifting the cutter bar on the header of the combine and then putting it out over the top of the bridge rail. Thus, the expert testified that both combine and automobile could have fit on the bridge if only the combine operator had made this adjustment. Another fact to be considered is that there were radios in the combine and in a truck driven by one of the other employees of Jensen. These employees did not use the radios which could have possibly obviated this tragic accident because the radios could have been employed to advise the combine driver when it would be safe to cross the bridge.

Appellant/Jensen owned the combine in question. On the date of the accident, Jensen's employees were harvesting a field for Schwarting, a farmer. Kaplan, Jensen's employee, was moving the combine from Schwarting's west field to his east field. No instructions or supervision on transporting the combine was given to...