Eilmes v. Olson

South Dakota Supreme Court

Eilmes v. Olson

268 N.W.2d 612, 1978 S.D. LEXIS 324

CourtSouth Dakota Supreme Court

DecidedAugust 3, 1978

DocketNo. 12324

StatusPublished

This text of 268 N.W.2d 612 (Eilmes v. Olson) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eilmes v. Olson, 268 N.W.2d 612, 1978 S.D. LEXIS 324 (S.D. 1978).

Pincite

Opinion

BRAITHWAITE, Circuit Judge,

This case stems from an intersection accident on July 12, 1975, in Mission Hill, South Dakota. The trial court instructed as to negligence, contributory negligence and comparative negligence. The jury returned a verdict for the plaintiff. We affirm.

Defendant acknowledges there was evidence to sustain a jury finding that he was negligent and such negligence was a proximate cause of the collision. His only claim on appeal is that the evidence, viewed in a light most favorable to plaintiff, shows that plaintiff was guilty of contributory negligence; that such negligence was a proximate cause of the collision; and that it was more than slight as a matter of law.

Defendant argues that plaintiff was on the wrong side of the road at the time of impact. There is considerable evidence to support his argument. But there is also evidence to the contrary. Much of defendant’s briefs and oral argument was devoted to highlighting the unbelievability of some of that testimony. That is not our function. The record presents a classic jury question. There is evidence from which a jury could have decided for either party. We leave its decision undisturbed. Bogh v. Beadles, 1961, 79 S.D. 23, 107 N.W.2d 342; Ricketts v. Tusa, 1974, 87 S.D. 702, 214 N.W.2d 77.

The judgment is affirmed.

All the Justices concur.

BRAITHWAITE, Circuit Judge, sitting for MORGAN, J., disqualified.

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BRAITHWAITE, Circuit Judge,

This case stems from an intersection accident on July 12, 1975, in Mission Hill, South Dakota. The trial court instructed as to negligence, contributory negligence and comparative negligence. The jury returned a verdict for the plaintiff. We affirm.

Defendant acknowledges there was evidence to sustain a jury finding that he was negligent and such negligence was a proximate cause of the collision. His only claim on appeal is that the evidence, viewed in a light most favorable to plaintiff, shows that plaintiff was guilty of contributory negligence; that such negligence was a proximate cause of the collision; and that it was more than slight as a matter of law.

Defendant argues that plaintiff was on the wrong side of the road at the time of impact. There is considerable evidence to support his argument. But there is also evidence to the contrary. Much of defendant’s briefs and oral argument was devoted to highlighting the unbelievability of some of that testimony. That is not our function. The record presents a classic jury question. There is evidence from which a jury could have decided for either party. We leave its decision undisturbed. Bogh v. Beadles, 1961, 79 S.D. 23, 107 N.W.2d 342; Ricketts v. Tusa, 1974, 87 S.D. 702, 214 N.W.2d 77.

The judgment is affirmed.

All the Justices concur.

BRAITHWAITE, Circuit Judge, sitting for MORGAN, J., disqualified.

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Bluebook (online)

268 N.W.2d 612, 1978 S.D. LEXIS 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eilmes-v-olson-sd-1978.

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