First Northwestern Trust Co. of South Dakota v. Schnable

FOSHEIM, Chief Justice.

First Northwestern Trust Company, as Guardian Ad Litem for Patrick Schaub (plaintiff), sued Doreen Schnable (defendant) for damages suffered when he was struck by defendant’s car while he was crossing a street. The trial to the court was bifurcated. The issue of liability was heard before the issue of damages. The court entered judgment for defendant on the issue of liability. Plaintiff appeals. We affirm.

The trial court found that the accident occurred on April 23, 1978, at about 8:45 p.m., at the intersection of Sixth Avenue Southeast and South State Street in Aberdeen, South Dakota. Sixth Avenue Southeast runs east and west. It is a state and federal highway, known as U.S. Highway 12, and is the second busiest street in South Dakota. The intersection was controlled by traffic lights timed mechanically so that traffic moving east and west had a green light for 30 seconds, a yellow light for 3 seconds, and a red light for 17 seconds. The traffic moving north and south on South State Street had a green light for 14 seconds, a yellow light for 3 seconds, and a red light for 33 seconds.

There are two lanes on the north side of Sixth Avenue Southeast for west bound traffic, two on the south side of the avenue for east bound traffic, and a center turning lane. The paving from curb to curb on Sixth Avenue Southeast at the intersection is about 64 feet wide. All lanes are of approximately equal width. A service station was on the southeast corner 'of the intersection. At the time of the accident there were three vehicles stopped on Sixth Avenue Southeast at the intersection for a red light. David Brewer, heading west, was stopped in his car in the inside lane for west bound traffic. Brewer’s car was stopped next to the crosswalk at the stop bar. David McGinnis, heading east, was stopped in the inside lane for east bound traffic. McGinnis was stopped next to the crosswalk at the stop bar. Directly behind him, James Rohl was also waiting in his car.

There had been some rain that evening. The sidewalks and pavement were wet and a light mist was falling. It was dark. Street and car lights were on. The lights were also on at the service station. This combination of lights made the intersection lighting fairly good. Brewer, McGinnis, and Rohl could see plaintiff as he crossed the intersection.

Plaintiff was 8 years, 8 months old and in the third grade at the time of the accident. His parents and teachers had taught him about the dangers of vehicle traffic, the importance of watching for a safe passage across streets, and pedestrian safety at intersections controlled by traffic lights. Plaintiff understood stop and go signs. He also knew that a pedestrian should proceed across the street only when the street is clear and the pedestrian has a green light. For approximately a year prior to the accident, he had a paper route in Aberdeen in an area which did not have an intersection controlled by traffic lights. However, plaintiff was familiar with the intersection of Sixth Avenue Southeast and South State Street. He knew that Sixth Avenue Southeast was a busy street requiring caution. At the time of this unfortunate accident, the lad was dressed in clothing most unfavorable to visibility: a dark blue jacket and grey-green, almost black, corduroy trousers.

Immediately prior to the accident, plaintiff approached the intersection from the south on the east side of South State Street along the area of the service station. Plaintiff and defendant approached the intersection simultaneously. Defendant was travel-ling west in her car on Sixth Avenue Southeast in the north, outside lane, for westbound traffic. Defendant’s headlights were on, her windshield wipers were operating, and her windshield was clear. Defendant was familiar with the intersection. She knew it was busy, that Aberdeen’s largest grocery store was located a half a block north, and that children frequented the area. When defendant was approximately 95 to 100 feet east of the intersection, the traffic light controlling her entrance into the intersection changed from red to green. Defendant continued toward the intersection at approximately 25 miles per hour, which was within the speed limit. The Brewer, McGinnis, and Rohl ears did not move when the light changed because they could see plaintiff in the intersection.

Plaintiff entered the intersection on a yellow light while running or moving at a quick jog. He continued at the same pace until he was about 12 feet into the intersection, at which point the light turned red. Prom that point, plaintiff ran as fast as he could. Brewer’s car obstructed the view between plaintiff and defendant so that neither was aware of the other. Plaintiff was in the crosswalk in the north, outside lane, for west bound traffic when he was struck by defendant’s car. One witness testified the point of impact was at the left front headlight, another witness that there was blood and hair near the right front headlight immediately after the accident. Defendant had the green light when her car struck plaintiff.

The trial court also found that plaintiff had a duty not to proceed against the light and that defendant had a duty to keep her car under control. The trial court found that both plaintiff and defendant had a duty to keep a proper lookout.

From these findings the trial court concluded that defendant was guilty of slight negligence which was not the proximate cause of the accident; and that plaintiff was guilty of more than slight negligence, which was the proximate cause of the accident, barring his recovery.¹

Plaintiff contends he was not negligent. He argues the court clearly erred in finding he entered the intersection on a yellow light and that it applied the wrong standard of care to his actions.²

Four witnesses testified about the color of the light when plaintiff stepped into the intersection.

1.Plaintiff testified that the light was green.

2. Rohl testified on direct examination that he could not remember the color of the lights at any time. On cross-examination he admitted that he had previously told defense counsel the light was yellow when plaintiff entered the intersection.

3. Brewer testified that the light was green when plaintiff stepped into the intersection but that he did not know where plaintiff was when the light turned yellow. He placed plaintiff one-fifth way through the intersection when plaintiff saw the light was red.

4. McGinnis testified that just before plaintiff entered the intersection, plaintiff looked at the light and it was green but as plaintiff stepped into the intersection the light turned yellow. He testified that plaintiff was approximately half way across the intersection when the light turned red. (McGinnis’ deposition testimony was introduced at trial. He testified from a street diagram with 4 lanes instead of five lanes, which the street actually had.)

In our review of the evidence, we must bear in mind that resolution of the negligence issue does not rest on whether this court would have made the same findings as did the trial court. We can disturb them 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 not clearly erroneous.

Plaintiff also argues that the trial court’s conclusion that plaintiff was negligent was based solely on its finding that plaintiff entered the intersection on a yellow light, which plaintiff contends is a violation of SDCL 32-27-2.³ Plaintiff argues that even if he entered the intersection on a yellow light, he cannot be held negligent as a matter of law. It is true that a minor’s violation of a statute or ordinance generally does not constitute negligence per se. Alley v. Siepman, 87 S.D. 670, 214 N.W.2d 7 (1974). However, the trial court’s findings and conclusions do not refer to SDCL 32-27-2 or indicate that its conclusion of plaintiff’s negligence was based solely on the color of the light when he entered the intersection. The trial court’s findings clearly reveal a careful consideration and weighing of many factors.

Plaintiff next argues that even if the trial court correctly concluded he was negligent, it erred in concluding that his negligence was more than slight. We empathize with the trial judge’s comment that he wished a jury had tried this case. He conceded the issue of liability was “extremely close.” We agree. It frequently is when a minor is involved.

The objective standard of the reasonable prudent person does not apply to a minor, but rather a special (subjective) standard of care is used which takes into account his age, intelligence, experience and capacity .... ‘There is something of an individual standard: the capacity of the particular child to appreciate the risk and form a reasonable judgment must be taken into account.’

Id. 214 N.W.2d at 10 (citations omitted).

The thought of a ear hitting a child naturally evokes anguish and sympathy. However, juries are instructed not to allow such considerations to affect their verdicts. No less can be demanded when the court is the trier of fact. Although 8 years old, plaintiff had a year’s experience, through his paper route, in getting himself around town. He was taught safe pedestrian habits at home and at school. He knew the significance of a red, green and yellow light. Yet on a dark and rainy night he ran as fast as he could, against the light, across the busiest street in town. Plaintiff gave himself no margin for error. Even if he had chanced to spy defendant’s car as he cleared Brewer’s, at the speed he was moving it is extremely doubtful he could have stopped in time to avoid being hit. We accordingly concur with the trial court’s decision that plaintiff’s negligence was more than slight and that it was the proximate cause of the accident. Haase v. Willers Truck Service, 72 S.D. 353, 34 N.W.2d 313 (1948).

Plaintiff’s final argument is that the trial court erred in not applying the doctrine of last clear chance to this case.

[T]he last clear chance doctrine does not apply in a situation where the pedestrian was ‘oblivious to peril’ and the driver of the automobile does not actually discover and see the pedestrian ‘in time’ to do anything to avoid hitting pedestrian. Miller v. Sioux Falls Traction System, 1921, 44 S.D. 405,184 N.W. 233; Haase v. Willers Truck Service, 1948, 72 S.D. 353, 34 N.W.2d 313.

Ford v. Hochstetter, 85 S.D. 4, 176 N.W.2d 501, 504 (1970); Hanson v. Beesley, 292 N.W.2d 804 (S.D.1980).

The trial court found, upon uncon-tradicted evidence, that “Defendant at no time saw the minor Plaintiff prior to the accident.” Plaintiff does not claim this finding is clearly erroneous. Having found that fact, the trial court properly declined to apply the last clear chance doctrine. We must abide by our earlier admonition: “[o]ne may not unnecessarily place and maintain oneself in such a dangerous position and then require others who failed to discover his peril to respond in damages.” Haase, 34 N.W.2d at 317 (citations omitted).

Judgment affirmed.

WOLLMAN and MORGAN, JJ., concur. DUNN and HENDERSON, JJ., dissent.

1 . SDCL 20-9-2: 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.

2 . In addition to these arguments, plaintiff claims the trial court’s conclusion that the light was yellow when plaintiff entered the intersection was based on figures from a case cited in plaintiffs trial brief, which were not in evidence. The trial court’s comments from the bench at the close of the evidence referred to these figures. However, they were not mentioned in the trial court’s findings. They therefore are of no consequence. Jones v. Jones, 334 N.W.2d 492 (S.D.1983).

3 . SDCL 32-27-2 reads: At intersections where traffic is controlled by traffic control signals or police officers, drivers of vehicles, including those making turns, shall yield the right of way to pedestrians crossing or those who have started to cross the roadway on a “green” or “go” signal, and in all other cases pedestrians shall yield the right of way to vehicles lawfully proceeding directly ahead on a “green” or “go” signal.