Johnson v. Jongeling

328 N.W.2d 275, 1983 S.D. LEXIS 244

• Court: South Dakota Supreme Court
• Decided: January 5, 1983
• Docket: 13680
• Status: Published

Opinions

FOSHEIM, Chief Justice.

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 appel-lee’s car approaching from her right at a crawling rate of speed, with the lights on. The trial court further found that Ms. Rill-ing 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 appel-lee’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.

WOLLMAN, DUNN and MORGAN, JJ., concur. HENDERSON, J., dissents.

1 . SDCL 20-9-2 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.