Miller v. Baken Park, Inc.

178 N.W.2d 560, 85 S.D. 133, 1970 S.D. LEXIS 100

Opinions

ON PETITION FOR REHEARING

HOMEYER, Judge.

In an opinion filed on March 6, 1970, this court reversed the judgment in case # 10586, Miller v. Baken Park, Inc., S.D., 175 N.W.2d 605. The ground for reversal was the refusal of the trial court to give Instruction No. 19, which cautioned the jury that if it found the husband, Donald Miller, contributorily negligent 'his negligence could not be imputed to the wife, Elaine Miller.

In a petition for rehearing, which was timely filed, the defendant accepts the decision of the court on this point but strenuously objects to dicta contained in the opinion on matters which may arise on retrial. The majority of the court are of the opinion that there is merit in the petition and has reexamined the record on matters urged as having been overlooked or misapprehended.

It is the opinion of the majority that the court was in error when it said in Division IV that the record does not warrant submitting the issue of the contributory negligence of Elaine Miller to the jury.

The duty of the passenger is not the same as the duty of the driver as pointed out in the opinion, but the passenger may have a duty. Such duty may affect not only the right to recover, but under our comparative negligence law it may also have a decided bearing on the extent of recovery. We believe that in viewing the evidence in this record most favorably to the defendant it was for the jury to decide if Elaine Miller was contributorily negligent, i. e., if she acted as a reasonably prudent person would act under the circumstances and conditions then existing. This is consistent with prior decisions of this court. Simmons v. Leighton, 60 S.D. 524, 244 N.W. 883; Hanisch v. Body, 77 S.D. 265, 90 N.W.2d 924; Holdhusen v. Schaible, 60 S.D. 275, 244 N.W. 392; Russell v. Crow, 60 S.D. 230, 245 N.W. 249; Ziegler v. Ryan, 65 S.D. 110, 271 N.W. 767; Peters v. Hoisington, 72 S.D. 542, 37 N.W.2d 410.

The majority is of the opinion that this case can and should be factually distinguished from Schoenrock v. City of Sisseton, 78 S.D. 419, 103 N.W.2d 649, where in affirming a plaintiff’s verdict we said the court did not err in refusing to submit the issues of contributory negligence or comparative negligence to the jury.

Except as herein modified, the former opinion is adhered to and the petition for rehearing is denied.