*1 753 account value has vested in defendant but stantially greater earning capacity than payable is not until his retirement. Based Accordingly, we revise the involved, upon our review of the factors we amount of alimony awarded to per $400 must conclude that the trial court abused month judgment and the of the trial its discretion in the division of court shall property. be modified to reflect such the revision. property We remand division to the SDCL 25-4-46.
trial court for a determination of the Regarding plaintiff’s further conten present right value of the to receive the tion that the award attorney of fees and upon retirement account retirement. The costs to was inequitable and insuf present value should be included in the ficient, we fully recognize that such an and, property valuation necessary, eq- if an award rests in the sound discretion of the may uitable division include a cash settle- trial 15-17-7; court. SDCL Rock, Rock v. payable ment in installments with interest. 1975, S.D., 191; 236 N.W.2d Pochop v. Po 1975, chop, S.D., 806; 233 N.W.2d Kressly Our review of the alimony award is Kressly, 1958, 143, 601; 87 N.W.2d upon underlying based the fact the Baron, Baron v. 1947, 71 S.D. determining trial court has discretion in the N.W.2d 836. We have no reason to con length payments. amount and the of SDCL clude that the trial court has abused its 25-4-41. The factors the trial court must discretion in regard to the award of attor utilize in the exercise of its discretion are ney fees of $500.6 determining similar those used in the property division of and further include the portion That of the judgment of the trial parties’ living of respec standard and their court regarding the division property is tive property financial conditions after the reversed and remanded to the trial court Guindon, supra. division. Guindon v. for further valuation equitable and an divi- sion in conformity with opinion. this The trial court awarded alimony to portion of judgment of the trial court per amount of $190 regarding alimony is affirmed as modified inadequate provision month which is an for of the judgment regarding support maintenance of attorney fees is affirmed. and not in full with the guide accordance opinion. lines set forth in our Guindon
Plaintiff is entitled to an amount which will
enable her to maintain a reasonable stan course, living. depends,
dard of This on the standard to which is she accustomed ROBINSON, Burton Doerr earning capacities parties. and on Respondent, family was accustomed to a income She $25,000 roughly and a three-bedroom home $60,000. approximately worth The trial Patrick W. MUDLIN and Patrick J. per coupled court award of month with $190 Mudlin, Appellants. Defendants and meager wages her store clerk amounts to No. 12156. per month which falls far below the $470 necessary amount to maintain a reasonable Supreme Court of South Dakota. Therefore, living. standard the trial Argued April 1978. court abused its discretion in its award of Decided Jan. 1979. alimony and an increased amount is war Rehearing This is Denied Feb. especially ranted. true years the fact that were 48 old years
and had been married for 28 at the Also,
time of trial. defendant has a sub- plaintiffs $750”. 6. The record indicates that counsel “at least Counsel further indicated that responded inquiry paid to the trial court’s as to the $230 defendant some at the outset attorney by stating proceedings attorney estimated amount of fees fees and costs. *2 Barber, Colo., Springs,
Paul Colorado for Crow, respondent; and Terrance J. Hill on the City, brief. McCullen, Bangs,
Thomas E. Simmons Butler, Simmons, Foye Rapid City, & for appellants. defendants and DUNN, (on reassignment). Justice personal injury This case involves a ac brought by plaintiff inju tion Robinson for ries he sustained when he struck by was vehicle driven defendant Patrick W. * during employ Mudlin the course of his father, ment for his defendant Patrick J. The case jury, Mudlin. was submitted to a returned a verdict for $122,069.93 upon amount of which judgment. trial court entered We af firm. place morning accident took on the 8, 1972, in Rapid City, December South temperature
Dakota. The
that morning
degrees
was -16
Fahrenheit and the wind
negligible.
place
Plaintiff
left his
employment
help
employee,
to
a fellow
Kier-
stead, start his service van which would
not start due to the extreme cold. When
proved
useless,
battery
cables
attached a tow chain from the rear
his
pickup
bumper
to the front
of the van.
towed the van with Kierstead at
blocks;
the wheel for two or three
at that
point,
running
the van started
on its own.
signaled to plaintiff,
Kierstead
stopped
edge
his vehicle at the
of the street
with the left wheels of both vehicles some-
*
driving
opinion
Mudlin
indicate Patrick W.
who was
in this
All references
to defendant
that struck
He
what on the traveled
the street.
noticed
the rear vehicle was run-
pavement
The record reveals
ning
putting
vapor
out a
cloud across
with
icy
packed
snow and frost. The
up
street.
looked
the street
easily
were not
lanes of travel
discernible.
check
so
traffic
that he could
directly
plaintiff’s
van was
behind
vehi-
cross over into
opposite
ap-
lane as he
cle
feet
eight
idling
some
proached the vehicles in
get
order to
around
*3
giving
vapor
off a
cloud which apparently
them safely. Defendant
stated that he
the
to vehicles approaching
blocked
view
swerved his vehicle into the opposite lane as
van.
the rear of the
he
vapor
went into the
cloud. Defendant
further
that
approximate-
stated
there was
Kierstead testified that he could not de-
ly four feet between his vehicle
the
edge
termine
the
street
where
of the
or the
parked vehicle. As he
vapor
entered the
packed
ended because of the
pavement
cloud,
totally
view
his
was
blocked. As he
stopping,
After
Kierstead looked in
snow.
cloud,
came
of
vapor
out
the
his vehicle
his rearview mirror and saw defendant’s
struck
approaching
yards
vehicle
the van some 150
away. Figuring
ample
that he
time to
had
The above testimony was submitted with
proceed
to the
leave his seat
front of
other
jury’s
evidence for the
consideration.
chain,
the van to unhook the tow
Kierstead
appeal,
On
it is not
weigh
our function to
gear,
the van in neutral
the
put
pushed
van
the evidence and substitute our judgment
step
door
started
out
open, and
to
of the
for that
the jury.
of
Neb. Elec. Generation
time,
van. At that
he noticed defendant’s
Co-op,
&
Walkling, 1976, S.D.,
Trans.
Inc. v.
the
eye ap-
vehicle out of
corner of his
Defendant testified he two cloud where he was parked completely speed vehicles on the of the street. blinded side at a of 15-20 756 hour, per knowing requires
miles
two vehicles
SDCL 20-9-2
the negli
gence
icy
and defendant
stopped
were
at the side of the
road as
first be
If,
considered and determined.
under the
edge
permit,
close to the
as the snow would
evidence,
both
could be
negli
held
couple
when he was a
and struck
gent,
negligence
must be
his vehicle. This
of feet from the side of
compared to that of defendant
to deter
ample
when there was
room to
place
took
mine,
statute,
in the words
whether
pass
for defendant
without mis-
left
contributory
“the
negligence
plain
hap.
jury may
plain-
have found that
comparison
tiff was
negli
with the
negligence
failing
tiff’s
was in
to see de-
gence of the defendant
. .” Crabb
through
vapor
of smoke
fendant’s
167 N, W.2d
Wade,
(1969);
84 S.D.
to take defensive action for his own
Quam,
82 S.D.
152 N.W.2d
safety
pickup
as he walked close to his
(1967).
comparison
This
is ordinarily
disconnect a tow chain. Since
jury,
for the
negligence
but where the
*4
vehicle,
trapped next to his own
what ac-
plaintiff “equal[s] or nearly equal[s] the
taken,
have
even if he had
tion he could
negligence or want
by
of care exercised
approaching
defendant’s
seen
defendant,”
Wade,
Crabb v.
supra, the com
through
vapor,
questionable.
is
parison is for the court.
the basis of the facts and cir
On
negligence
Plaintiff’s
not
did
consist sole-
record,
present
cumstances
it cannot
ly
failing
in
to take defensive actions as he
concluded,
law,
plain
as a matter of
that
be
along
walked
his vehicle.
negli-
It was also
negligent or even if
contributorily
tiff was
gent
get
out of his vehicle
contributorily negligent,
plaintiff was
that
and walk in the street in a lane of traffic
negligence
slight
was more than
when
such
when all the while his vision
negligence
with the
compared
defendant.
traffic in the lane in which he was walking
parties
be
Because both
could
found to be
was obstructed
the steam cloud. While
causing plaintiff’s injuries,
in
plaintiff may
trapped
have been
next to his
negligence
comparative
be
vehicle,
own
he was
equally respon-
at least
question
solely
came a
of fact
within the
sible with
creating
defendant for
trap.
province
jury.
fully
The
This conclusion does not rest on differing
on the doctrine of negligence,
instructed
versions of the evidence or the inferences to
contributory negligence
be drawn therefrom.
undisputed
It is
competent
negligence. Where there is
evi
walked in the
travelled
determination,
the street
support the
without an effective
jury’s
dence to
lookout for
us,
safety.
his own
though
did so even
as is the case in the record before
it will
he
could have exited his vehicle through
not
appeal
though
be disturbed on
even
passenger door and thereby could have
may
there
facts which
warrant a differ
are
getting
avoided
into the street
at all.
Wipf,
ent conclusion. Rumbolz v.
Nothing
required
about
the circumstance
327,
that the Marlys Miller, Ernest MILLER and Plain- by the lane would be obscured the traffic Respondents, tiffs and No. 12169 and already obvious to which was steam cloud Cross-Appellants, Plaintiffs No. cannot, therefore, be said that It “small negligence slight, or plaintiff’s Quam, supra, when in quantum,” Scholten, Leonard SCHOLTEN and Viola with that of defendant. compared Appellants, Defendants No. 12169 majority respectfully dissent from I Cross-Respondents, and Defendants judgment would reverse the opinion and No. 12173. complaint be dis- with directions that the Nos. 12173. missed.
Supreme Court of South Dakota. MORGAN, (dissenting). Justice Jan. majority opinion As I read the I dissent. 7,1979. Rehearing Denied Feb. respondent contributorily
it holds negligent as a matter of law. With this case, however,
holding agree. I In such
appellant proper was entitled to instruction
narrowing the issue to whether or not such
contributory negligence was more than got
slight. potpourri Instead he of in- regarding negligence, contributo-
structions
ry negligence, negligence. theory we cannot determine on what
Since jury returned its verdict we are unable They may it. have
to affirm found that all, directly was not at
respondent
contrary majority holding. singularly
This case is
similar to
Quam,
(1967), respondents, for in both cases the injured by pedestrians
who were a motor
vehicle, had observed apparently
in the distance and then failed Quam In keep a lookout. properly comparative negli- as to
instructed
gence only, but this court struck down a holding verdict that the
substantial contrib-
utory negligence was more than as a case, In I
matter of law. the instant would grant appellant
at least a new trial under
proper instruction.