Dartt v. Berghorst, 17526

• Decision Date: 15 January 1992
• Docket Number: No. 17526,17526
• Parties: Burton DARTT, Plaintiff and Appellee, v. Henry BERGHORST, and Midwest Transport, Inc., Defendants and Appellants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 891

484 N.W.2d 891

Burton DARTT, Plaintiff and Appellee, v. Henry BERGHORST, and Midwest Transport, Inc., Defendants and Appellants.

No. 17526.

Supreme Court of South Dakota.

Considered on Briefs Jan. 15, 1992.

Decided April 29, 1992.

Jon J. LaFleur, LaFleur, LaFleur & LaFleur, Rapid City, for plaintiff and appellee.

Donald A. Porter, Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for defendants and appellants.

WUEST, Justice.

Dartt brought a negligence cause of action against defendants Midwest Transport, Inc. (Midwest) and Berghorst. The jury found for defendants who now appeal from the circuit court's order granting Dartt a new trial. By notice of review, Dartt appeals the circuit court's order denying his motion for judgment notwithstanding the verdict (J.N.O.V.). We affirm.

On February 26, 1987, Dartt, a state employee, was assigned to operate a snow plow on the left hand shoulder of Interstate 90 East, commencing at Wall, South Dakota. An additional snow plow was assigned to work the right hand shoulder on the same stretch of road. This plow followed Dartt approximately one quarter of a mile behind. Both snow plows were traveling at approximately twenty to thirty miles per hour (m.p.h.). The snow that Dartt plowed was blowing across Interstate 90 making visibility behind him poor.

Berghorst was a truck driver for Midwest, a trucking company based in Wilmar, Minnesota. Berghorst's truck was loaded and weighed approximately 80,000 pounds. As Berghorst left Rapid City, South Dakota heading east on Interstate 90, he was traveling in tandem with another trucker, who was approximately one mile ahead of him. As the first trucker approached the snow plows, he radioed Berghorst on his citizen's band (CB) radio. He advised Berghorst the two snow plows were there, and it was difficult to see Dartt's snow plow because of the snow being kicked up by the plow, although he had passed the plows without incident.

As Berghorst approached the first snow plow, he could see Dartt's snow plow was kicking up snow ahead making it difficult to see down the interstate to the east. Berghorst did not wait to see if the visibility would improve or if the snow plow would pull off the interstate to allow traffic to pass before proceeding into the cloud of snow. Nor did Berghorst sound his horn to notify Dartt he intended to pass. Berghorst entered the snow cloud, and, although his visibility was totally obscured, he continued on at approximately forty-five to fifty m.p.h. without applying the brakes for at least thirty seconds keeping his hands "tight on the wheel." Berghorst came across from the driving lane onto the left hand shoulder and his semi tractor trailer collided with the rear of Dartt's vehicle. Dartt was injured as a result of the collision.

Berghorst was cited by the State Highway Patrol for violating SDCL 32-26-6 (1989) which provides:

On a roadway divided into lanes, a vehicle shall be driven as nearly as practicable entirely within a single lane and may not be moved from such lane until the driver has first ascertained that such movement can be made with safety....

Berghorst pled guilty by power of attorney.

Dartt brought a negligence lawsuit against Berghorst and Midwest. At the close of the Berghorst's case at trial, Dartt moved for a directed verdict, which motion was denied. The trial court gave an instruction on legal excuse for violation of safety statutes, and instructed the jury Berghorst was negligent as a matter of law based on his violation of certain safety statutes unless the violation was excused. (These instructions are discussed in greater detail in part I of the opinion). Dartt objected to the instruction on legal excuse and offered an instruction declaring Berghorst negligent as a matter of law. Dartt also offered an instruction specifying the burden of proving legal excuse was on Berghorst and Midwest. The instructions were denied. After a jury verdict in favor of Berghorst and Midwest, Dartt made a timely Motion for Judgment Notwithstanding the Verdict (J.N.O.V.) with Motion for a New Trial in the Alternative. The trial court granted a new trial to Dartt based upon insufficiency of evidence to justify the verdict and upon the trial court's failure to instruct the jury that Berghorst and Midwest had the burden of proving any legal excuse for the safety statute violations. The trial court denied Dartt's Motion for J.N.O.V.

Berghorst appeals raising two issues which we have consolidated into one.

I. Whether the trial court erred in granting a new trial on the grounds of (1) insufficiency of the evidence and (2) because it failed to instruct the jury that Berghorst had the burden of establishing a legal excuse for violating safety statutes.

Dartt filed a notice of review raising two additional issues. ¹ The second notice of review issue is disposed of by our decision on:

II. Whether the trial court erred in denying Dartt's Motion for Judgment Notwithstanding the Verdict.

I.

The trial court granted Dartt a new trial pursuant to SDCL 15-6-59(a) (1984). ² In its Amended Order Granting a New Trial, the court set forth its reasons for granting the new trial:

1. The evidence as to the issue of liability was insufficient to justify the verdict.

2. An error of law occurred at the trial based upon the failure to instruct the jury that the burden of proof was on the Defendant [Berghorst] to prove by a preponderance of evidence that the Defendant's statutory violations were legally excusable, and further based on the court's belief and concern that the jury was further prejudiced since the instructions on legal excuse for statutory violations immediately preceded the instructions on burden of proof.

A. Insufficiency of Evidence:

Berghorst initially attacks the insufficiency of evidence basis of the Order arguing neither the Order nor Dartt's Motion for New Trial adequately specified where the evidence was insufficient. Because we conclude the trial court properly granted Dartt a new trial based upon its failure to instruct on the burden of proving legal excuse, we need not decide this issue.

B. Error of Law:

The trial court also granted Dartt a new trial on the basis that it committed an error of law by failing to instruct the jury the burden of proving a legal excuse for any safety statute violations fell upon Berghorst. The trial court instructed the jury as follows: (1) a vehicle must be driven within a single lane and the driver may not change lanes until he ascertains it is safe to do so; (2) a driver may not drive a vehicle at a speed greater than is reasonable and prudent under conditions then existing; (3) a driver may not fail to yield the right of way to persons engaged in maintenance when notified of the presence of the maintenance persons; (4) and maintenance personnel have the "preference of right of way" and are permitted to drive on the left-hand side of the traveled portion of the highway. The instruction went on as follows:

These statutes set the standard of care of the ordinarily careful and prudent person. If you find that the Defendant, Henry Berghorst, violated any of these statutes, such violation is negligence unless you find from all the evidence that non compliance was excusable because something made compliance with the statute impossible; something occurred over which the driver had no control; an emergency, not of the driver's own making, prevented compliance; or an excuse is specifically provided by statute.

(Underscoring supplied).

We first set out our standard of review. "Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this court will not disturb the trial court's decision absent a clear showing of abuse of discretion." Kusser v. Feller, 453 N.W.2d 619, 621 (S.D.1990). Accord Simmons v. City of Sioux Falls, 374 N.W.2d 631 (S.D.1985). "If the trial court finds an injustice has been done by the jury's verdict, the remedy lies in granting a new trial." Id. at 632. "[W]e determine that an abuse of discretion occurred only if no 'judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.' " Jensen v. Weyrens, 474 N.W.2d 261, 263 (S.D.1991) (quoting Estate of Pejsa, 459 N.W.2d 243, 245 (S.D.1990); Estate of Smith, 401 N.W.2d 736 (S.D.1987)). Finally, we note a decision to grant a new trial stands on firmer footing than a decision to deny a new trial. Simmons, 374 N.W.2d at 632.

It is settled law that a defendant has the burden of proving legal excuse. Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 16 (S.D.1988); Meyer v. Johnson, 254 N.W.2d 107, 111 (S.D.1977). Berghorst does not dispute this. He argues instead, the jury instructions as a whole were sufficient to "give a full and correct statement of the applicable law," relying on Jahnig v. Coisman, 283 N.W.2d 557, 560 (S.D.1979). See also Frazier v. Norton, 334 N.W.2d 865, 870 (S.D.1983); Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199 (1958). We disagree. Jahnig also states "refusal to give a requested instruction setting forth applicable law is not only error, but prejudicial error." Jahnig, 283 N.W.2d at 560. Accord Schelske v. South Dakota Poultry Co-op., Inc., 465 N.W.2d 187, 190 (S.D.1991); Rosenberg v. Mosher, 331 N.W.2d 79, 80 (S.D.1983). Indeed, Jahnig held failure to give, in a products liability action, a jury instruction on strict liability constituted prejudicial error because the jury may have concluded that the "plaintiff carried a burden of proof of which she was relieved under the strict liability doctrine." Jahnig, 283 N.W.2d at 561.

Here, the trial court disallowed the defenses of contributory negligence and assumption of the risk. It was established that Berghorst violated SDCL 32-26-6 (driving within lane required) and SDCL 32-27-10 (1989) (failing to yield to highway maintenance equipment). Berghorst does not contend otherwise. Indeed,...