"Ordinarily, negligence on the part of the driver of a vehicle cannot be imputed to a passenger riding with him." Kelmis v. Cardinal Petroleum Company, 156 N.W.2d 710, 715 (N.D. 1968); see also, Anderson v. Stokkeland, 125 N.W.2d 665, 667 (N.D. 1964); Wilson v. Oscar H. Kjorlie Co., 73 N.D. 134, 12 N.W.2d 526 (N.D. 1944). Absent joint enterprise, that principle was recognized by us in the first appeal in this case. Although defendants again argue that Bishop Emery was not a guest and that Bigelow and Emery could have been on a joint mission for their church, that issue has been settled in the first appeal; and the evidence on the retrial being substantially the same on this point, the law of this case is that the driver's negligence cannot be imputed to Bishop Emery and no basis exists for the submission of the imputed negligence issue.

Rule 52(a), N.D.R.Civ.P. A finding of fact is clearly erroneous if it has no support in the evidence or although there is some support in the evidence, we are nevertheless left with a definite and firm conviction that a mistake has been made [ Knutson v. Jensen, 440 N.W.2d 260 (N.D. 1989)]; or if it was induced by an erroneous view of the law [ Manz v. Bohara, 367 N.W.2d 743 (N.D. 1985)]. In arguing that McLees was negligent as a matter of law, Knudtson relies on Kelmis v. Cardinal Petroleum Co., 156 N.W.2d 710 (N.D. 1968), and Anderson v. Schreiner, 94 N.W.2d 294 (N.D. 1959). These cases are either consistent with the trial court's decision in this case [ Anderson] or distinguishable from this case [ Kelmis].

The driver of an automobile has a duty to keep a proper lookout, and failure to discharge that duty is negligence. Kelmis v. Cardinal Petroleum Co., 156 N.W.2d 710, 715 (N.D. 1968). [¶ 7] Negligence involves questions of fact and is generally inappropriate for summary judgment.

Id. at 34. To support this articulation of the standard of review, the Court cited Verry v. Murphy, 163 N.W.2d 721 (N.D. 1968); Kelmis v. Cardinal Petroleum Co., 156 N.W.2d 710 (N.D. 1968); Wheat v. Patterson, 154 N.W.2d 367 (N.D. 1967). Notably, these cases were all decided before the repeal of N.D.C.C. § 28-27-32 and the amendment to Rule 52. The Court failed to acknowledge this change. [¶ 31] In 1972, in In re A.N., 201 N.W.2d 118, 120 (N.D. 1972), the Court addressed the matter:

While the "distracting circumstances" doctrine was most often applied to excuse a plaintiff's contributory negligence, this Court has instructed it is also appropriate to the determination of a defendant's negligence. See Kelmis v. Cardinal Petroleum Co., 156 N.W.2d 710, 715-16 (N.D. 1968) (reversing summary judgment and finding defendant driver negligent as a matter of law because "[t]he record clearly establishe[d] that there were no distracting circumstances which might excusably have diverted [the defendant's] attention"). A

This court has repeatedly held that a driver on a favored roadway must exercise due care and keep a proper lookout. Kelmis v. Cardinal Petroleum Company, 156 N.W.2d 710, 715 (N.D. 1968); Gleson v. Thompson, 154 N.W.2d 780, 786 (N.D. 1967); Kuntz v. Stelmachuk, 136 N.W.2d 810, 816 (N.D. 1965); Anderson v. Schreiner, supra, 94 N.W.2d at 298. Viewing the evidence in the light most favorable to the verdict, the jury determination that Long was 10 percent negligent was supported by the evidence.

While it is the general rule that we will give appreciable weight to the findings of the trial court in reviewing the facts on a trial de novo [Automobile Club Insurance Company v. Hoffert, 195 N.W.2d 542 (N.D. 1972); Koistinen v. Farmers Union Oil Company of Rolla, 179 N.W.2d 327 (N.D. 1970); Parceluk v. Knudtson, 139 N.W.2d 864 (N.D. 1966); Renner v. Murray, 136 N.W.2d 794 (N.D. 1965)], we are not bound by such findings. Kelmis v. Cardinal Petroleum Company, 156 N.W.2d 710 (N.D. 1968). Consequently, it is incumbent upon this court to find the facts anew, as well as to determine from the record whether or not Orbadella Fetch has met her burden of proof with respect to the elements of the doctrine of equitable estoppel to assert the substantive statute of limitations of § 32-36-09, N.D.C.C.

However, on such trial de novo, we are not bound by the findings of the trial court. As we said in Kelmis v. Cardinal Petroleum Co., 156 N.W.2d 710 (N.D. 1968), at page 715: "This court will not apply the principle that in reviewing a case tried without a jury it will give appreciable weight to the findings of the trial court, in order to relieve it of the necessity of trying anew all questions of fact in the entire case.

Courts across the country have recognized the favored driver's obligation to maintain a proper lookout. E. g., Musi v. DeSarro, 370 F.2d 113 (3d Cir. 1966); Allen v. Bi-State Development Agency, 452 S.W.2d 288 (Mo.Ct.App. 1970); Callen v. Knopp, 180 Neb. 421, 143 N.W.2d 266 (1966); Kelmis v. Cardinal Petroleum Co., 156 N.W.2d 710 (N.D. 1968). Thus, if a favored driver fails to maintain a proper lookout while approaching and entering the intersection, he is not exercising proper care and is guilty of contributory negligence if such failure is a substantial factor in the causation of the accident.

The appellants next argue that the evidence produced at the trial does not support the findings of fact made by the Juvenile Court in this case. On appeal, although the findings of fact by the trial court are accorded appreciable weight, the Supreme Court is not bound thereby but has the duty to review all evidence, to find the facts anew independently of the trial court's findings, and to apply the law to the facts as found by the appellate court. Verry v. Murphy, 163 N.W.2d 721 (N.D. 1968); Kelmis v. Cardinal Petroleum Co., 156 N.W.2d 710 (N.D. 1968); Wheat v. Patterson, 154 N.W.2d 367 (N.D. 1967). The trial court's termination of the appellants' parental rights was based upon findings of fact proved beyond a reasonable doubt, whereas the requisite degree of proof is by clear and convincing evidence.