*1 girl with the little with a am concerned injury being wiped by bad who is out was concerned
decision. This court injury to remand this case for a
about her and she should receive that trial. my opinion, complaint, the amended treating physician peri-
absence of the for a months, correspon-
od of six the extended calls, phone setting
dence and and the was sufficient to sustain the
depositions
court’s order
I would affirm. BANK, DE-
AMERICAN STATE TRUST
PARTMENT, GUARDIAN OF Ann
HIGBEE, Appellant, MAYER,
Lynette List A. Defendant Appellee. No. 13324. Kabeise- Brady, Johnson of M. Steven Reade, Johnson, man, Abbott & Dakota. Supreme Court plaintiff appellant. Argued 1981. Oct. Bierle, Porter & Doyle, Doyle James E. Decided Nov. defendant and Kennedy, 17, 1982. Rehearing Denied Dec. pellee. Judge. (appellant), Bank
American State Higbee, of Ann of the Estate Guardian injuries this action to recover brought after she was Ann suffered appellee, automobile driven struck rendered Mayer. List Lynette judgment in favor of mo- Appellant’s was entered notwithstanding the judgment for a tions denied. a new trial were verdict and appeals pellant rulings on said motions. We adverse all the a new trial on remand for verse and issues. old seventy-eight year Higbee, a
Ann automobile woman, was struck September p.m. at 8:10 *2 HI pellant objected was as she of in an unmarked at the cross-walk blood test on the ground result that it was Higbee permanent block. Mrs. sustained relevant, irrelevant outweighed damage, causing brain incompe- her of danger prejudice. unfair testify tent at the trial. She also suf- SDCL 19-12-3 states: hip fered a broken and various bruises and relevant, may be evidence ex- contusions. probative cluded if its value is substan- Uncontroverted testimony indicated that tially outweighed by the of unfair danger Mrs. Higbee had looked in both directions issues, prejudice, confusion of the or mis- street; crossing she walked in a leading or of considerations normal manner although looking downward delay, time, undue waste of or needless times; and, at all had crossed about one- presentation of cumulative evidence. half of the two southbound lanes of the Consumption beverages by of alcoholic street when was The struck. weather Higbee may be relevant issue of at the time of the good accident was negligent. whether she was contributorily nothing impaired the view either appel- probative value the admission of the Higbee lee or Mrs. at the time of the acci- result, however, blood test was substantial- dent. Appellee admitted that she did not ly outweighed because the un- admission Higbee see Mrs. until five feet before im- fairly prejudiced plaintiff, confused the pact; not soon to sound and misled the warning. horn in police officer deals with who people drive or are actual investigated who the accident testified that physical vehicle, of a pedes- control skidmarks, vehicle left no al- trians. Because admission of the blood test though other testimony indicated that put result Higbee tended to pellee applied pri- brakes sometime same level operators intoxicated or to the 32-23-1, vehicles who violate SDCL the test A blood alcohol content test was ad results should not been admitted into ministered Mrs. three hours after Hanson, evidence. See Bertness v. pursuant request by to a (S.D.1980). N.W.2d 316 police department. The test indicated a .08 Appellant objected also alcohol content to the Court Appellee level. of expert giving fered testimony indicating
Higbee’s blood alcohol which pedestrian.1 level dealt with duties of a was .125 at time of the accident. city provided: Yankton ordinance jury mining guilty reads: The is instruct- or not whether Plaintiff was giving pedestri- negligence, you consider, ed that statutes or ordinances right ans the at intersections create a appear from the character preferential, favor, but not an absolute in their intersection, the weather duty still owe a to exercise dark, crossing light whether the or ordinary care Before at- street, upon the traffic and whether or not tempting being to cross a street used for could, diligence, such traffic with reasonable vehicles, pedestrian’s traffic of motor it is Plaintiff; have been observed whether duty to make reasonable observations to learn or not she looked before or she was in while her; confronting conditions him traffic crossing; crossing the street her manner which, vicinity to look to that were street, every other fact and circumstance immediately approaching, vehicle it en- that she did did not use tends to show danger passage; try his or her to make a dangers to be rea- commensurate reasonably sensible safe decision it is sonably apprehended, did not use and did or attempt crossing. observations he What reasonably degree which a careful of care make, he she should and what or she should would have used safety, crossing do for their own same or is further similar situation. The street, are matters law does not which the person lawfully carefully instructed that a using attempt regulate for all detail and occa- crossing right to a street has the sions, except respect: place upon does using persons that all will also pedestrian continuing to exercise use care and caution. This rule al- avoid an accident. deter- WOLLMAN, (concurring specially any operator part; dissenting marked any crosswalk crosswalk at the
or within unmarked that the case should remand- versed and S.D., Only end of City ed to circuit trial. *3 possible con- the questions 14-131. Ordinance # the negligence and amount tributory provides: SDCL to any, if that she entitled damages, upon a high- The driver of however, submitted to the way within a business or residence dis- negli- I hold defendant was for would that trict the yield gent failing yield a matter for as of law pedestrian crossing such Higbee. pic- the right-of-way to any clearly any reg- marked crosswalk scene, year taken one tures of the accident included pedestrian crossing ular in the after day the and boundary lines prolongation of lateral demonstrate graphically similar adjacent sidewalk at have seen Mrs. that defendant should at a time when de- bee in the intersection vehicle would been fendant’s ordinance and stat- aforementioned de- enough from intersection a give ute pedestrians to Mrs. right-of-way fendant way but not an absolute this is a to exercise ordi- and still owe that evi- I with Justice Henderson However, nary con- blood-alcohol pedestrian's dence of a twenty-seven given as be case of tent should admissible appellee. On slanted favor unfairly opin- disagree majority nature. I retrial, Number re- that admission of the holding ion’s be refined test in instant sults of the blood-alcohol Court, it By ruling virtue unfairly prejudiced plaintiff, case confused unnecessary to address other I read becomes As and misled instructions, I refer- see no appellant herein. the trial court’s issues raised Rath- ence whatsoever the case is is reversed and er, merely instructed trial court for a new manded to the trial court back consumption of alco- fact that the issues. all beverage negligence holic did not constitute merely but circumstance by itself J., DUNN, FOSHEIM, C.J., concur. and determining might considered exercised person has HENDERSON, JJ., con- and WOLLMAN stated, I to be find the instruction care. So part. dissent part, cur and specially unexceptionable. MORGAN, opin- Also, disagree majority I Judge, of Instruction ion’s characterization J., disqualified. Defendant, defined as son to that motor vehicle lows hand, you if obey instructions. On the traffic laws these find, drivers will abide preponderance of prepon- regulations. you from the find a as such Plaintiff exercised Plaintiff failed derance of the evidence that prudent simi- person the same or sight would under hear- make use of her senses such circumstances, not be safety Plaintiff would lar then ing steps such and to take you contributorily negligent, find further accident, ordinarily careful and as an avoid the negligence the Defendant was same would take under subse- circumstances, proximate the accident and cause of such failure similar you damages quent injury, then must return a injury and to cause the contributed damage in- of, in accordance complained recov- Plaintiff cannot then er, slight compari- herein set out. struction unless
H3
being unfairly
as
appel-
seeing
slanted
favor of
for not
until
feet
five
Granted,
lee.
longer
the instruction is
right-
had the
most,
more detailed than
but
arewe
not
of-way
yield.
failed to
It was
vouchsafed even
hint regarding its defi-
was,
not a preferential
right-of-way.
ciencies
inaccuracies.
the trial
facts,
under these
right-of-way belonging
forgiven
well
for characteriz-
just
her.* Instruction 27
did
slant
ing Delphian
direction that on retrial
the law—-it contravened Yankton’s ordi
instruction should be refined.
negate
nance and our State statute. And it
in general agreement
am
with the views
ed the
pedestrian’s right-of-way. For
set
Supreme
forth
Court of Califor-
opinion
rights
of pedestrians
and duties
Stewart,
nia in LaManna v.
13 Cal.3d
under a California statute similar to ours
Cal.Rptr.
(1975),
m.p.h. m.p.h. in a 30 speed zone. Appellee’s
headlights were on and the lights
were on. There was no excuse whatsoever
* And, crosswalk, of-way. where shall we our in a citizen out, objects values? On inanimate be- or human it behooves the automobile driver to look ings? beware, carefully, The Yankton ordinance and the State drive say nothing right- way. statute about a