Nugent v. Quam

• Decision Date: 18 July 1967
• Docket Number: No. 10367,10367
• Citation: 152 N.W.2d 371,82 S.D. 583
• Parties: Frank NUGENT, Plaintiff and Respondent, v. Everett Norman QUAM, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 371

152 N.W.2d 371

82 S.D. 583

Frank NUGENT, Plaintiff and Respondent, v. Everett Norman QUAM, Defendant and Appellant.

No. 10367.

Supreme Court of South Dakota.

July 18, 1967.

Rehearing Denied Sept. 11, 1967.

Royhl, Benson & Beach, Huron, for defendant and appellant.

Morgan & Fuller, Miller, Kaye & Hanson, Mitchell, for plaintiff and respondent.

BURNS, Circuit Judge.

Upon this appeal by defendant-driver we have for determination the question whether or not as a matter of law the negligence of the plaintiff-pedestrian was more than slight in comparison with the negligence of the driver of the automobile by which he was truck, under Chapter 149 of the 1964 Session Laws which is as follows:

'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.'

The plaintiff, a 79 year old man, was struck by an automobile driven west by the defendant on West First Avenue approaching the intersection with Rowley Street while plaintiff was walking in a northwesterly direction across West First Avenue in the business district in the City of Mitchell a short distance south of the south cross-walk at the intersection of West First Avenue and Rowley Street which extends north and south.

The traffic at the intersection of First Avenue with Main Street located a block east of Rowley Street is controlled by electric signals. In the block of First Avenue involved traffic moves in one lane west and one lane east with space reserved for parking on the north side and with space on the south side where parking is prohibited. The Piggly Wiggly Store from which plaintiff came immediately before crossing the avenue is located on the south side of First Avenue west of Main Street with a parking lot to the west between the store and Rowley Street. The driveway from the parking lot to First Avenue slopes down to the street level as a ramp. This driveway is west of the store and east of Rowley Street, but the record does not show the distances except for plaintiff's statement that after leaving the north door of the store 'I took a few steps west where there was cars would drive in'. In fact the record is devoid of any measurements or estimates of the width of the avenue, the width of the entrance to the parking lot, the distance of the point where plaintiff started to cross the avenue from Rowley Street or the distance of the alley referred to by plaintiff from Rowley Street.

The accident occurred at about 5:30 p.m. It was dusk; one witness said 'hazy'. Car lights were on or being turned on. First Avenue was described as a busy street with quite a few cars. The parking spaces on the north side of the avenue were full. One car was stopped on the south side of the avenue in front of the entrance to the Piggly Wiggly Store in which sat one of the eyewitnesses to the accident. Under the City ordinances pedestrians were prohibited from crossing the avenue except at the crosswalks and vehicular traffic was prohibited from driving at a speed greater than is reasonable and prudent under the conditions then existing with a proviso that in a business district such as the avenue involved an excess of fifteen miles an hour is prima facie unlawful and prima facie evidence that the speed is not reasonable and prudent.

The plaintiff came out of the north entrance of the Piggly Wiggly Store with a small sack of potatoes in one arm and groceries in the other arm, 'took a few steps west' and went down the sloping driveway entrance to the parking lot to the level of the street. At this point he looked to the left or west before he started across First Avenue. He walked diagonally in a northwesterly direction across the east lane of travel not at a crosswalk. When he got to the middle of the street he looked to the east and, as he testified, 'the light come on, it looked to me like it was about in the alley. * * * I figured I could make it across.' He took a few steps and was hit on his right side. He said 'the middle of the car, I imagine, hit me.' As the plaintiff continued across the west lane of traffic he did not look again to the east but was 'looking to get across the street'. Although the plaintiff stated he did not see the car this is qualified by the statement that he saw the light and as to seeing the car, 'I must have'. Although the plaintiff testified he was walking north and northeast 'kitty-corner', the physical facts and the testimony of the eyewitnesses produced by plaintiff indicate he was confused or misstated himself and that in fact he walked in a northwesterly direction coming nearer to the south crosswalk at the south side of the intersection of First Avenue and Rowley Street as he walked across the avenue. In spite of his own statement we think the evidence warrants the more favorable view that he was nearing the crosswalk as he walked across the avenue.

The defendant, an engineer and a graduate of the School of Mines in 1961, left his place of employment shortly after 5:00 p.m., drove to and stopped at the post office, then drove south on Main Street to the intersection with First Avenue where the light was green. He turned right onto First Avenue and drove west in the right lane of traffic. He observed the cars parked on the north side of the avenue, but did not recall any cars on the south side. Defendant's testimony was that he was going about 'fifteen miles an hour * * * more or less.' He first saw plaintiff when plaintiff was 'a step and a half or so south of the center line of First Street'. He estimated that plaintiff was then eight to ten feet in front of the car. He applied the brakes and stopped suddenly. The plaintiff was struck by the front of the car to the right center of the hood, according to the defendant. The plaintiff was thrown to the pavement at a point fixed by the defendant as 'east of the crosswalk area and * * * about in the center line of the westbound lane on West First Street'. In stating defendant's testimony to furnish some details as to his duty toward the plaintiff, we have in mind that because of the jury's verdict for the plaintiff awarding him damages, and very liberal damages, we view the evidence in the light most favorable to the verdict and draw therefrom all reasonable inferences which support the verdict. Flanagan v. Slattery, 74 S.D. 92, 49 N.W.2d 27; Hanisch v. Body, 77 S.D. 265, 90 N.W.2d 924; DeBerg v. Kriens, S.D., 149 N.W.2d 410. The defendant's evidence is considered only insofar as it tends to amplify, clarify or explain the evidence in support of the verdict of the jury for the plaintiff.

The fire chief testified for the plaintiff. Shortly before the accident he came out of the east door of the fire station which is located at the southwest of the intersection of First Avenue and Rowley Street. He went across Rowley Street in a northeasterly direction and was about to the sidewalk on the east side of Rowley Street and a short distance south of First Avenue when he saw the defendant's car hit the plaintiff. As he looked up he saw the car coming and saw the defendant 'and just knew at the time I seen it that he was going to get hit. The car bumped him and stopped right there. Mr. Mugent went in the air, I would judge about five or six foot in the air, and then it sitting right flat on the ground about in the neighborhood of ten or twelve foot ahead of the car, where the car knocked Mr. Nugent down.'. The chief went over to the plaintiff who 'was sitting about in line with the north and south sidewalk on the east side of Rowley Street and a little to the north side of the west-bound traffic lane'. He fixed the point of impact as ten or twelve feet east of the crosswalk. He stated that he saw the plaintiff just before he was hit and that 'He wasn't looking toward the car. I think he was watching the direction he was traveling, as near as I can remember'. He formed no estimate of the speed of the car.

The other eyewitness of the accident, a farmer by the name of Henry Gall, also testified for the plaintiff. He was in his car stopped opposite the north entrance of the Piggly Wiggly Store facing east. He saw the plaintiff come out of the store with a bag of potatoes and groceries in his arms, walk northwest to the ramp and down the ramp where 'he first looked this way a little ways and then he looked that way and then he walked right kitty-corner across.' As the plaintiff was crossing the avenue in a northwesterly direction this witness saw the car coming from the east and 'figured he was going to get hit'. He observed the car for about ten feet and as to its speed stated, 'To my estimate, I figured it was between twenty and twenty-five. Of course, I'm no radar machine. That's just my estimate'. He said 'the car come to a stop just about the time it hit Mr. Nugent * * * He really stomped the brakes down and it just rocked like that'. The witness did not think the plaintiff was looking at the car when he was hit and in answer to the question 'Did you notice whether he ever again looked in both directions' (after he had started across) said 'Not to my knowledge'. He stated that the plaintiff was not at a crosswalk when he started across the street and wasn't at a crosswalk when hit.

Another witness for plaintiff in a nearby store heard the impact, but did not see the collision. He immediately went out to where the accident occurred. The plaintiff was slightly east of the east crosswalk line of the south crosswalk and was in the westbound lane of traffic slightly 'to the right of the center line'. With this witness was another man who testifying for the plaintiff said that he heard...