¶1(dissenting).
¶2I respectfully dissent. The record is somewhat incomplete on measurements and distances, but it does show that there are two lanes of travel on First Avenue where plaintiff was injured when crossing; one lane for traffic moving eastward and one lane for traffic moving westward. Plaintiff's testimony is that he looked to the west before entering the south lane, and again "about to the middle" before he entered the north lane, he looked to the east and saw the defendant's car lights at about the alley and figured he could make it across. The accident occurred slightly east of the east crosswalk at the intersection of Rowley Street and First Avenue so it may be concluded that the distance from the alley to the place where plaintiff observed defendant's *601car and attempted to cross was about 125 feet. In my opinion this evidence presented a jury question on contributory negligence under the rule of Bock v. Sellers, 66 S.D. 450, 285 N.W. 437, which was decided before enactment of the comparative negligence law.
¶3Language used in Cowan v. Dean, 81 S.D. 486, 137 N.W.2d 337, should not be construed otherwise, and in fact is in affirmation of a basic rule of negligence law which has been recognized by this court repeatedly. In Cowan we said: "Where he (a pedestrian) looks and does not see an approaching automobile, or sees it and misjudges its speed or distance from him, or for some other reason concludes that he can cross safely and avoid injury to himself, a jury question is usually presented." The evidence in that case allowed no logical inference that the plaintiff looked and misjudged either the distance or the speed of the vehicle which struck him. The only reasonable inference was that he did not look or did not look effectively. The car which he testified that he saw 4 1/2 blocks away, which would be 1,350 feet or about a 1/4 mile distant when he started running across the street, could not possibly have been the vehicle which struck him, and we said "respondent's car must have been in close proximity when he started across the street — the evidence allows no other conclusion — and we see no reasonable excuse for his failure to see the car which struck him."
¶4While the court said in Cowan that "one who crosses a street between intersections is required to keep a constant lookout", I do not interpret this to mean that after he once looks and enters the lane in which he is injured, he must continue to look and observe the vehicle he has seen after he had concluded it would not strike him; that a failure so to do makes him contri-butorily negligent as a matter of law. Rather, while I concede it was the duty of plaintiff to be continuously alert and to look for traffic, which the evidence shows he did before entering the north lane, it was for the jury to determine if his conduct when he concluded he could safely cross was that of an ordinary reasonable man. Giving the plaintiff the benefit of the inferences to which he is entitled, the jury could find the plaintiff was not negligent. See Pfisterer v. Key, 218 Ind. 521, 33 N.E.2d 330.
¶5*602The opinion does not rely upon violation of the city ordinance prohibiting crossing the street except at a right angle and at a regular crosswalk at the end of a block in the business section as establishing negligence per se. I concur in this position. SDC 1960 Supp. 44.0318, which is a yield right-of-way statute, similar to the Mitchell right-of-way ordinance, provides:
"Local authorities in their respective jurisdictions may by ordinance require that at intersections where traffic is controlled by traffic control signals or by police officers, pedestrians shall not cross a roadway against a read or 'Stop' signal, and between adjacent intersections so controlled shall not cross at any place except in a marked or unmarked crosswalk."
¶6The record is clear that the intersection west of where plaintiff was injured, that is, at First Avenue and Rowley Street, was not controlled by traffic control signals or by police officers. The ordinance could not supersede the statute and when it attempted to prohibit crossing where the accident occurred, it was beyond the power delegated to the city. In Wilton v. Henkin, 52 Cal.App.2d 368, 126 P.2d 425, it was held that an ordinance which conflicted with state law in the regulation of pedestrian crossing of streets was void. See also Annot. 147 A.L.R. 522, 560, 561.
¶7In my opinion, liability under the verdict can and should be sustained without reliance upon the comparative negligence statute.
¶8(dissenting).
¶9While the majority opinion leads to the result of dismissal of the action on the facts here, it could well serve as an opinion where a pedestrian was crossing the street in the middle of the block or suddenly stepped out from behind parked cars or ran across the street, all without looking. These are not the facts before us. The evidence indicates, and the opinion recognizes, that this was a business street in mid-town Mitchell with mercantile establishments and parked cars nearby, so busy that a stop and go light was at the east end of the block where the accident occurred. Plaintiff did violate the ordinance in not *603crossing the street at right angles at the end of the block. It does not appear there was a "regular" or distinguishable crosswalk.
¶10The ordinance also provides a pedestrian crossing a street at any point other than the marked crosswalk (there was none) or this so-called unmarked crosswalk at the end of the block shall yield the right-of-way to vehicles upon the roadway. From the evidence the jury could find, and we must assume it did find, plaintiff looked to the east and defendant's car appeared to be about at the alley a half block away. He concluded he could make it across, but was struck before doing so. The evidence is uncertain and varies somewhat where he was hit. One witness indicated plaintiff was sitting in line with the north-south sidewalk, and was hit 10 to 12 feet east thereof; another placed him on the "west side of the sidewalk, in a line with that". That spot is therefore uncertain, though it must be he was close to the end of the block, not farther than 10 or 12 feet at the most in one version and closer in another. As the opinion states he was "nearing the crosswalk" and further that the record is devoid of measurements and estimates of many of the distances involved. Defendant on the other hand drove upwards of 100 feet while plaintiff was crossing the street in his full view, yet he continued to drive ahead at an unlawful speed until he was, by his own admission, 8 or 10 feet from plaintiff and could not or did not stop in time to avert the accident.
¶11In Cowan v. Dean, 81 S.D. 486, 137 N.W.2d 337, the pedestrian was running across the street in the middle of the block and either did not look or failed to see defendant's car in plain sight, the court wrote:
"Where he … sees it and misjudges its speed or distance from him, or for some other reason concludes that he can cross safely and avoid injury to himself, a jury question is usually presented."
¶12The latter is the situation here and I am not inclined to extend Cowan to a pedestrian adjacent to or, as the opinion concludes, "nearing the crosswalk". While a technical violation of the ordinance to cross as he did, it was not such departure from the *604conduct of a reasonable or ordinarily prudent person for the court to direct a verdict for defendant, and was a question more properly to be submitted to a jury to determine if plaintiff's negligence was slight compared to defendant's negligence. If plaintiff had been on the crosswalk at the end of the block he would have been free from all negligence. He was at such a place near the end of the block that defendant was bound to observe and drive with due care as to persons crossing at or near it and was not surprised or unaware of the possible presence of persons in the middle of the block.
¶13The legislative power of Mitchell in the ordinance providing that a pedestrian crossing a street at a point other than within a marked crosswalk or unmarked crosswalk yield the right-of-way to vehicles, stated that provision "shall not relieve the driver of any vehicle from the duty to exercise due care for the safety of pedestrians". The court strikes that legislative act from the Mitchell ordinances as it now concludes such driver need not exercise due care but may drive negligently and carelessly run down such a pedestrian without liability. It appears the court is returning to decisions declaring plaintiff negligent as a matter of law as expounded in opinions such as Culhane v. Waterhouse, 1927, 51 S.D. 584, 215 N.W. 885. There plaintiff, a farm wife, and her husband were standing off the roadway in a ditch visiting with the driver of an automobile parked on their side of the road. They noticed an oncoming automobile weaving from side to side, driven by a drunken driver and as it neared them it turned into the ditch hitting plaintiff. This court overturned a jury verdict for plaintiff and concluded she was negligent as a matter of law. It was such opinions that gave rise to the passage of the comparative negligence law. SDC 1960 Supp. 47.0304-1. Without that statute the Culhane and similar decisions were not then defensible and since its passage and recent amendments the majority opinion is not in accord with its intent or verbiage and invades the province of the jury.
¶14As the court's opinion dismisses the action and does not reach the claim that damages allowed may be excessive, there is no reason to discuss that question.