Johnson v. Jongeling
| Decision Date | 15 October 1982 |
| Docket Number | No. 13680,13680 |
| Citation | 328 N.W.2d 275 |
| Parties | Kenneth E. JOHNSON, Special Administrator of the Estate of Regina Rilling, Deceased, Plaintiff and Appellant, v. Mary JONGELING, Defendant and Appellee. . Considered on Briefs |
| Court | South Dakota Supreme Court |
James C. Roby of Oviatt, Green, Schulz & Roby, Watertown, for plaintiff and appellant.
William P. Fuller of Woods, Fuller, Schultz & Smith, Sioux Falls, for defendant and appellee.
Kenneth E. Johnson, as special administrator of the estate of Regina Rilling (appellant), sued Mary Jongeling (appellee) alleging that on September 3, 1977, appellee negligently backed her car into Ms. Rilling who was walking across the parking lot of the Veterans of Foreign Wars Club in Watertown, South Dakota. Appellant sought damages for medical expenses and pain and suffering sustained by Ms. Rilling. Appellant appeals from the judgment entered in favor of appellee after trial to the court. We affirm.
Lois Howey testified that she and Ms. Rilling played bingo about once a month at the Veterans of Foreign Wars Club in Watertown. On these occasions Ms. Howey provided the transportation, driving Ms. Rilling to the Club and taking her home following the games. That was also their plan on the night of the accident. The trial court found that upon leaving the Club, at approximately 10:30 p.m., Ms. Howey instructed Ms. Rilling to wait on the sidewalk outside the Club, as was their custom, while she got her car. However, on this particular occasion, Ms. Rilling chose to leave the sidewalk and walk across the Club's dimly lit parking lot to Ms. Howey's car. While so doing she walked into the right rear corner of the car appellee was then backing out of a parking space in the lot. The trial court found that Ms. Rilling did not keep a proper lookout and thus did not see appellee's car approaching from her right at a crawling rate of speed, with the lights on. The trial court further found that Ms. Rilling walked out from behind a parked car and thus could not be seen by appellee. The trial court found that Ms. Rilling fell beside, not under appellee's car, and that Ms. Rilling suffered no visible scrapes, abrasions, contusions or other injury suggesting she had been run over. The trial court concluded that Ms. Rilling was guilty of negligence more than slight.
The trial court also found that appellee looked about before and while she backed out of the parking space; that there was no physical damage to appellee's car suggesting a collision; and that appellee did not feel or hear anything to indicate that her car had struck Ms. Rilling. The trial court concluded that appellee kept a proper lookout and was not negligent.
Appellant raises one issue on appeal: whether the trial court's findings supporting its conclusion that Ms. Rilling's negligence was more than slight are clearly erroneous. However, from our view of the record, we do not reach that issue. Our comparative negligence statute, SDCL 20-9-2, 1 and its interpretive case law are to the effect that the issue of comparative negligence is not operative unless it is determined that both parties are negligent. Urban v. Wait's Supermarket, Inc., 294 N.W.2d 793 (S.D.1980); Robinson v. Mudlin, 273 N.W.2d 753 (S.D.1979); Crabb v. Wade, 84 S.D. 93, 167 N.W.2d 546 (1969); Nugent v. Quam, 82 S.D. 583, 152 N.W.2d 371 (1967); SDPJI 20.07. Thus the issue is whether the trial court's findings supporting its conclusion that appellee was not negligent are clearly erroneous.
We are mindful that the resolution of this issue does not rest on whether this court would have made the same findings as the trial court, as we can disturb those findings only if our review of the evidence leaves us with a definite and firm conviction that the trial court made a mistake. Smith v. Gunderson, 86 S.D. 38, 190 N.W.2d 841 (1971); In Re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970); SDCL 15-6-52(a). Our review does not leave us with such a conviction. We therefore conclude that the trial court's findings on the issue of appellee's negligence are not clearly erroneous. Having made that conclusion it follows that whether, and to what extent, Ms. Rilling was contributorially negligent is irrelevant. Accord : Engel v. Stock, 88 S.D. 579, 225 N.W.2d 872 (1975).
The judgment of the trial court is affirmed.
There can be no night without day and there can be no doctrine of comparative negligence invoked unless there is negligence of both parties upon which a comparison can be made. The trial court set forth, in its findings of fact and conclusions of law, that it had adopted by reference the factual findings and legal conclusions stated in its memorandum decision. Said memorandum decision expressed: "I feel that plaintiff's decedent was guilty of negligence more than slight." In this case, the trial court found no negligence on the part of the defendant, yet barred recovery of plaintiff upon the premise that plaintiff was negligent and that such negligence was more than slight. Thus, I would dissent upon the semantics and holding of the trial court and would accordingly remand to the trial court for a correction of this legal incongruity. See SDCL 20-9-2. If, indeed, defendant was not negligent, at least to some degree, why did the trial court use the language that the plaintiff "was guilty of negligence more than slight?" Under this theory, an award of damages unto plaintiff would be reduced to the extent of plaintiff's negligence (if any).
And in the night--in a private, unmarked parking lot--who has the right-of-way--the machine or the human being?
The trial court and the majority opinion favor the machine. I favor the human being. The machine is made of fenders, bumpers, chassis, and cold steel. It is an inanimate object. It is heartless and feels no pain. The human being is housed in bone and flesh and, when injured, it shatters, bleeds, and hurts. Yes, once again, I would have the machine yield the right-of-way to the human being. See also, American State Bank v. Mayer, 326 N.W.2d 110 (S.D.1982) (Henderson, J., concurring specially). It is obvious to me that the trial court applied a comparative negligence standard as I have pointed out in Theory I, and although the majority opinion points out that the trial court made no finding that the defendant in the machine was negligent, nevertheless, such a determination was implicit in the trial court's ruling.
Let us harken back to an analysis of the fundamentals of negligence:
"Negligence" is the word used to describe the conduct of the defendant. But a cause of action for negligence requires more than such conduct. There must be a duty, and there must be consequences. The traditional formula for the elements necessary to such a cause of action includes the following:
1. A duty, which is an obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.
2. A failure to conform to the standard required. This is commonly called breach of the duty....
3. A reasonably close causal connection between the conduct and the resulting injury. This is commonly called "proximate cause," or sometimes "legal cause." ...
4. Actual loss or damage resulting to the interests of another.
Prosser, Wade, Schwartz, Torts at 146 (6th ed. 1976). See Leslie v. City of Bonesteel, 303 N.W.2d 117 (S.D.1981).
In South Dakota, a motor vehicle operator has a duty to keep a proper lookout when backing an automobile. Klarenbeek v. Campbell, 299 N.W.2d 580 (S.D.1980); see also, Burnham v. Nebren, 7 Wash.App. 860, 503 P.2d 122 (1972) ().
It is highly significant that an eyewitness, Mrs. Howey, witnessed this entire collision. This lot was sufficiently lit so as to provide Mrs. Howey the opportunity to see the plaintiff wait by the side of the building so that the traffic...
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...only if our review of the evidence leaves us with a definite and firm conviction that the trial court made a mistake. Johnson v. Jongeling, 328 N.W.2d 275 (S.D.1983). Applying this standard, we conclude the trial court's finding that plaintiff entered the intersection on a yellow light is n......
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...loss, damage or injury. Goff v. Wang, 296 N.W.2d 729 (S.D.1980); Leslie v. City of Bonesteel, 303 N.W.2d 117 (S.D.1981); Johnson v. Jongeling, 328 N.W.2d 275 (S.D.1983). If the jury finds each of these elements present, it must fix an amount of money, if any, that would reasonably and fairl......