Treib v. Kern

• Decision Date: 01 December 1993
• Docket Number: No. 18275,18275
• Citation: 513 N.W.2d 908
• Parties: Alton TREIB, Plaintiff and Appellant, v. Art KERN, Defendant and Appellee. . Considered on Briefs on
• Court: South Dakota Supreme Court

Page 908

513 N.W.2d 908

Alton TREIB, Plaintiff and Appellant, v. Art KERN, Defendant and Appellee.

No. 18275.

Supreme Court of South Dakota.

Considered on Briefs on Dec. 1, 1993.

Decided March 30, 1994.

Kenneth E. Barker and Brad A. Schreiber of Quinn, Eiseland, Day & Barker, Belle Fourche, for plaintiff and appellant.

Curt Ireland, Rapid City, for defendant and appellee.

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 evidentiary 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 motion[s] 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., 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 plaintiff's 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 evidentiary 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 plaintiff's 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 plaintiff's contributory negligence is...