Treib v. Kern

513 N.W.2d 908, 1994 S.D. LEXIS 38, 1994 WL 106509

• Court: South Dakota Supreme Court
• Decided: March 30, 1994
• Docket: 18275
• Status: Published

Opinions

AMUNDSON, Justice.

Alton Treib (Treib) appeals a jury verdict and judgment for Art Kern (Kern) on Treib’s claim for negligence in a car accident. We affirm.

FACTS

On the morning of August 6, 1990, Treib was involved in a collision with Kern. Treib was driving south at approximately fifteen miles per hour on Main Street of Lemmon, South Dakota. While approaching Kern’s house, Treib noticed a billow of smoke come from the exhaust of Kern’s pickup. As Treib proceeded, Kern backed out of his driveway and hit Treib. Neither Treib nor Kern saw each other at the time of impact. After the accident, Treib told a police officer that as he passed Kern’s driveway he thought, ‘Whew, I made it.”

Treib testified he was aware of Kern’s tendency to back out of his driveway without looking. Treib admitted that he was taking two different anti-seizure medications at the time of the accident. This medication could cause fatigue and drowsiness to the point that it would be dangerous to operate an automobile. Treib knew of these possible side effects.

Notwithstanding his knowledge of Kern’s tendencies and his observations, Treib took no evasive action to avoid this accident. Treib claims that immediately after the accident Kern’s first comments were “it was my fault.” Treib also claims that Kern’s wife Johanna came out of the residence immediately after the accident and called Kern an old fool who should not have been driving due to a recent eye surgery. Kern and his wife disputed this testimony.

Treib claims his left arm was paralyzed by the accident. The medical diagnosis of this injury is disputed, with some agreement that Treib suffers from “hysterical conversion,” a psychological disorder causing paralysis.

A jury trial was held before the Honorable Timothy R. Johns on December 14-18, 1992, in the Eighth Judicial Circuit, Perkins County, South Dakota. The trial court granted Treib’s motion for a directed verdict finding Kern negligent but denied Treib’s motion for directed verdict on his contributory negligence. The jury returned a verdict for Kern.¹ Treib then filed a motion for judgment notwithstanding the-verdict and an alternative motion for a new trial. The trial court denied these motions and entered a judgment consistent with the jury’s verdict.

ISSUES

1. Did the trial court err in denying Treib’s motion for directed verdict on contributory negligence and his motion for judgment notwithstanding the verdict?

2. Did the trial court abuse its discretion by denying Treib’s motion for a new-trial?

3. Was it error to permit the jury to view evidence not admitted into evidence during the trial?

STANDARD OF REVIEW

Our standard of review of the circuit court’s denial of a directed verdict and of the jury’s determination in favor of this [defendant] is well established. We must examine the evidence in the light most favorable to the non-moving party and give him the benefit of all reasonable inferences. The moving party is entitled to evi-dentiary consideration only where its evidence is uncontradicted and tends to amplify, clarify or explain the evidence in support of the verdict of the jury for the prevailing party.

Westover v. East River Elec. Power, 488 N.W.2d 892, 896 (S.D.1992) (citations omitted); Dartt v. Berghorst, 484 N.W.2d 891, 895 (S.D.1992) (applying the same standard when reviewing a motion for judgment notwithstanding the verdict).

To determine whether the trial court correctly denied the motions for directed verdict and judgment notwithstanding the verdict, we must review the record and determine whether there is any substantial evidence to allow reasonable minds to differ. Id. (citing Haggar v. Olfert, 387 N.W.2d 45 (S.D.1986)). If there is sufficient evidence to allow reasonable minds to differ, the denial of the motionfs] was correct and appropriate. Id. at 49. Only when the facts show beyond any dispute that Treib was not negligent is it appropriate for the circuit court and this court to hold, as a matter of law, for Treib. Westover, 488 N.W.2d at 896 (citing Starnes v. Stofferahn, 83 S.D. 424, 160 N.W.2d 421 (1968)). It is not a function of an appellate court to weigh the evidence and substitute its judgment for that of the jury. Id. “The decision of the jury is likely to be upheld as questions of negligence, contributory negligence and assumption of the risk are for the determination by the jury ‘in all except the rarest instances.’ ” Westover, 488 N.W.2d at 896 (quoting Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983)). A jury verdict “ ‘[will] not be set aside except in extreme cases as where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law by which damages in the particular case were to be measured.’ ” Stoltz, 336 N.W.2d at 657 (quoting Simons v. Kidd, 73 S.D. 306, 311, 42 N.W.2d 307, 309 (1950)).

A motion for judgment notwithstanding the verdict is based on and relates back to the directed verdict motion made at the close of all the evidence. Therefore, the grounds asserted in support of directed verdicts are brought before the trial court for a second review. Sabag v. Continental South Dakota, 374 N.W.2d 349 (S.D.1985).

On appeal, this court reviews the evidence in the light most favorable to support the jury verdict. Raebel v. Fishers Grove Golf Course, Inc., 88 S.D. 20, 22, 214 N.W.2d 785, 786 (1974). “The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.” Sabag, 374 N.W.2d at 355 (citing Lytle v. Morgan, 270 N.W.2d 359, 360 (S.D.1978)).

DISCUSSION

ISSUE 1

Did the trial court err in denying Treib’s motion for directed verdict on contributory negligence and his motion for judgment notwithstanding the verdict?

The gravamen of Treib’s argument is that contributory negligence should not have been an issue submitted to the jury. Under South Dakota law, a plaintiff may not recover if his negligence is more than slight in comparison with the negligence of the defendant. Westover, 488 N.W.2d 892; SDCL 20-9-2. The question of Treib’s contributory negligence is a two-part inquiry. Nugent v. Quam, 82 S.D. 583, 152 N.W.2d 371 (1967).

The first step of the Nugent analysis is a determination of whether the plaintiff and the defendant were negligent. If both parties are found negligent, the second step of the process requires that the negligence of the plaintiff be compared to the negligence of the defendant. As stated earlier, if it is determined that a plaintiff has committed negligence more than slight, the plaintiff cannot recover. Id.,Id., 82 S.D. 583, 152 N.W.2d 371. In making such a determination, there is direct comparison between the conduct of the plaintiff and the defendant rather than the reasonable person standard used to determine whether both parties are negligent. Id.

At the conclusion of Treib’s case, the trial court ruled that Kern was negligent as a matter of law by granting Treib’s motion for a directed verdict.² However, the trial court denied Treib’s motion for directed verdict on his own contributory negligence. At the conclusion of Kern’s case-in-chief, the trial court held that Treib’s contributory negligence was a question of fact for the jury’s determination and denied Treib’s motion for directed verdict. “It is a question of fact which varies with the facts and circumstances of each case whether a plaintiffs negligence is slight compared to that of the defendant.” Estate of He Crow v. Jensen, 494 N.W.2d 186, 188 (S.D.1992) (citations omitted).

In Howard v. Sanborn, 483 N.W.2d 796 (S.D.1992), the plaintiffs/appellants argued that the trial court incorrectly submitted the contributory negligence defense to the jury. In Chief Justice Miller’s unanimous majority opinion reversing the trial court’s decision the following standard was quoted:

‘ “In considering whether there is eviden-tiary support for an instruction, a reviewing court must give the evidence the most favorable construction it will reasonably bear. If there is some evidence bearing on the issue, a reviewing court will not disturb the trial court’s giving of an instruction.” ’

Id. at 797 (quoting Gerlach v. Ethan Coop Lumber Ass’n, 478 N.W.2d 828, 830 (S.D.1991)) (quoting Zee v. Assam, 336 N.W.2d 162, 164 (S.D.1983)).

The facts demonstrate that the jury could have reasonably concluded that Treib was not free of negligence in this accident. First, Treib was driving a vehicle while under the influence of medication which could cause fatigue and drowsiness. Treib’s physician testified that Treib should not have been driving while taking this medication. There was also evidence that Treib suffered from “absence seizures” which could cause momentary losses of mental consciousness.

Although Treib knew Kern’s pickup was running and that Kern had a propensity for backing his pickup without looking, he did not take precautions to avoid an accident with Kern and did not see Kern back onto the road. The evidence shows Treib failed to take any evasive action to avoid the collision even though there was no oncoming traffic which would have interfered with his ability to do so.

The second part of the Nugent test requires us to determine whether the plaintiffs negligence is more than slight when compared to that of the defendant.

In discussing the scope of the term ‘slight,’ we have stated:

‘It is now a relative and variable term which defies precise definition and prohibits an arbitrary mathematical ratio limitation. Broadly speaking, our comparative negligence act now applies whenever a plaintiffs contributory negligence is determined to be small in comparison with defendant’s negligence. What constitutes “slight” or “small” contributory negligence naturally varies with the facts and circumstances of each case. The same conduct constituting slight or small contributory negligence in one case may be great in others when compared with the negligent acts of different defendants under different facts and circumstances.’

Westover, 488 N.W.2d at 898 (quoting Crabb v. Wade, 84 S.D. 93, 98, 167 N.W.2d 546, 549 (1969)).

First, we must examine the extent of defendant Kern’s negligence. Kern violated state law when he backed his car without keeping a proper lookout. SDCL 32-26-14 and 32-30-20. Violation of these statutes constitutes negligence per se. Engel v. Stock, 88 S.D. 579, 225 N.W.2d 872 (1975). The trial court recognized this uncontradict-ed negligence by directing a verdict on Kern’s negligence.

Next, we compare the evidence of plaintiff Treib’s negligence to that of Kern. An important fact in ascertaining the extent of Treib’s negligence is that he admitted knowing Kern was in his pickup, that the engine was running, and that Kern often backed his pickup from his driveway without looking. Kern suggests that with this knowledge alone Treib should have honked or swerved his pickup to the other lane in an effort to avoid any collision with Kern.

This court has held that a motorist has the right to assume that other drivers will obey the rules of the road. Nelson v. McClard, 357 N.W.2d 517 (S.D.1984). However, this does not relieve a motorist from keeping a lookout, or using reasonable care, with due regard for the safety of others. “In other words, a motorist may not be blithely oblivious to the obvious.” Id. at 519. This court has recognized that the statutory right of-way is not absolute and does not relieve the driver of the duty of exercising ordinary care to avoid collisions. Yost v. Yost, 81 S.D. 588, 591, 139 N.W.2d 238, 239 (1965).

Treib also testified that immediately after the accident he commented to the police officer that as he drove past the Kern residence he thought “Whew, I made it.” The trial court correctly concluded that the jury could have inferred that Treib was negligent from this comment and the fact that Treib saw exhaust coming from the vehicle.³

The trial judge stated:

If you put that with all the physical facts, which would be the length of the driveway, there is an inference here that a trier of fact could draw and that inference is that Alton Treib was aware, prior to the collision, that Art Kern was backing up and that Art Kern was not keeping a proper lookout and that, further, he, the plaintiff Treib, was within a zone of danger. In other words, that Art Kern could realistically hit him. From that premise, negligence can be found on the part of the plaintiff, inasmuch as he did nothing either to warn Ait Kern of his presence nor did he take any evasive measures.

It is for the jury to decide whether Treib was guilty of contributory negligence for failure to use reasonable care in discovering the danger and avoiding a collision. Winburn v. Vander Vorst, 74 S.D. 531, 55 N.W.2d 609 (1952). A determination supported by evidence will not be disturbed even though there are facts which would warrant a different conclusion. Rumbolz v. Wipf, 82 S.D. 327, 145 N.W.2d 520 (1966).

After viewing the evidence in a light most favorable to Kern and giving him the benefit of all reasonable inferences, we conclude that reasonable minds could differ as to Treib’s contributory negligence. “[I]t is not the function of this court on review to weigh conflicting evidence or to pass upon credibility of witnesses; that task lies within the province of the jury.” ⁴ Sharkey v. Washington Nat. Ins. Co., 373 N.W.2d 421, 427 (S.D. 1985) (citing Lukens v. Zavadil, 281 N.W.2d 78 (S.D.1979); Kamp Dakota, Inc. v. Salem Lumber Co., Inc., 89 S.D. 696, 287 N.W.2d 180 (1975)). Therefore, the trial court did not abuse its discretion in denying the motions for directed verdict and judgment notwithstanding the verdict.

ISSUE 2

Did the trial court abuse its discretion by denying Treib’s motion for a new trial?

Treib claims that a new trial should have been granted because the jury verdict was contrary to the weight of the evidence and the settled law of the State of South Dakota. SDCL 15-6-59(a)(6). The rule is well established that a trial court has broad discretion in granting a new trial. Simmons v. City of Sioux Falls, 374 N.W.2d 631 (S.D.1985). The denial of a new trial will not be disturbed on appeal absent a clear showing that the trial court abused its discretion. Herren v. Gantvoort, 454 N.W.2d 539 (S.D.1990).

As stated above, Treib’s contributory negligence was an issue of fact for the jury. There was conflicting evidence which could lead to differing inferences favorable to either party.

While the existence of a conflict in the evidence is a controlling consideration by which courts are governed in setting aside a jury verdict, the mere presence of a conflict in the evidence does not license a trial court to weigh conflicting evidence and substitute its own judgment for that of the jury, simply because it disagrees with the verdict. It must appear that the evidence was conflicting on several controlling points and that the verdict is clearly unsupported in light of other evidentiary facts proven. Therefore, unless the finding of the jury on a question of fact is so unreasonable, arbitrary, and unsupported by the evidence, a new trial should not be granted on the basis of insufficiency of the evidence.

Lewis v. Storms, 290 N.W.2d 494, 497 (S.D.1980) (footnotes omitted) (emphasis added).

After examining all the evidence, it cannot be said that the verdict reached was unreasonable, arbitrary, and unsupported by the evidence. The jury was properly instructed as set forth above, and there was sufficient evidence from which the jury could have reasonably inferred that, while both drivers were negligent, Treib’s negligence was more than slight when compared to Kern’s. Id. “In determining whether the trial court abused its discretion in denying an application for new trial, this court views the evidence in the light most favorable to the [jury] verdict.” Cody v. Edward D. Jones & Co., 502 N.W.2d 558, 561 (S.D.1993) (citing Stoltz, 336 N.W.2d at 656). In this case, the trial court did not abuse its discretion by denying the motion for a new trial.

ISSUE 3

Was it error to permit the jury to view evidence not admitted into evidence during the trial?

Sometime after the accident, Treib was interviewed by a claims representative for State Farm Auto Insurance at the office of Treib’s attorney. This interview was tape-recorded and later transcribed. The tape recording and its transcription were marked as defendant’s exhibits R and S. At trial, the transcript was admitted for impeachment purposes only because it was inconsistent with Treib’s testimony. The record does not indicate whether the transcript or cassette tape was ever offered or received into evidence. However, the clerk of courts recorded these exhibits as offered and received into evidence sometime during trial.

At the conclusion of the case, the trial court “instructed] counsel to get together and make sure that ... all the exhibits that were admitted and received into trial so the Bailiff can then provide them to the jury.” Presumably, after counsel for both parties reviewed the exhibits and no further objections were raised, the exhibits were submitted to the jury.⁵ Treib now argues that, since the transcript was admitted for impeachment purposes only, it was error for the jury to receive the tape during deliberation.

Treib claims that neither the tape nor the transcript are accurate accounts of the interview and that someone may have altered them. This allegation remains unsubstantiated and no effort has been made to prove the transcript or tape is bogus. Treib could have called all of those present at the recorded interview to testify at trial but did not do so.

It is error to submit exhibits to the jury for deliberation when the trial court has not accepted those exhibits into evidence. Beasley v. Washington, 169 Mich.App. 650, 427 N.W.2d 177 (1988). A party alleging error on appeal must show such error affirmatively by the record and not only must the error be demonstrated but it must also be prejudicial error. Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D.1976). “Prejudicial error” is error which in all probability must have produced some effect on the final result of the trial. Koupal & Anton, Inc. v. Wieczorek, 375 N.W.2d 639 (S.D.1985). Treib has not shown that the inadvertent submission of these exhibits has prejudiced him or impacted the jury verdict. Thus, a new trial is not warranted.

The jury’s verdict is affirmed in all respects.

MILLER, C.J., and WUEST, J., concur. HENDERSON and SABERS, JJ., dissent.

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1 . On a special verdict form, the jury found that Treib was negligent, that his negligence was the proximate cause of the accident, and that his negligence was more than slight. See, attached jury verdict form.

2 . In fact, Kern had a statutory duty to yield to vehicles on the street before backing out of his driveway. SDCL 32-26-14 and SDCL 32-30-20.

3 . Treib’s testimony that he thought he had "made it," he saw exhaust coming from Kern's vehicle, and his knowledge of Kern's propensity to back without looking is evidence Treib knew of Kern’s potential for negligence. This knowledge required him to exercise ordinary care. Justice Wuest explained this in the unanimous decision of Frey v. Kouf, 484 N.W.2d 864, 869 (S.D.1992).

‘[T]he duty to exercise ordinary care to avoid the consequences of another's negligence does not arise until the negligence is apparent or the circumstances are such that an ordinarily prudent person would apprehend its existence.' 65A C.J.S. Negligence § 119, at 49 (1966).

Whether Treib exercised ordinary care is definitely a jury question. If he did not, the jury must determine whether his failure to exercise ordinary care is contributory negligence more than slight.

4 . In his writing, Justice Henderson mentions the alleged statements made by Kern and his wife after the accident. The record discloses that both Kern and his wife deny making those statements. This obviously interjected a credibility issue into this proceeding and this court cannot make a jury’s decision during the appellate process.

5 . The record shows that Treib’s counsel invited the jury to "review the tape” during his closing argument.