Johnson v. Armfield11/25/2003
tablish contributory negligence is viewed "in the light most favorable to upholding the verdict." Parker v. Casa Del-Rey, 2002 SD 29, , 641 NW2d 112, 115 (quoting Engberg v. Ford Motor Co., 87 SD 196, 201, 205 NW2d 104, 106 (1973)).
. As reiterated in Thomas v. Sully County, 2001 SD 73, , 629 NW2d 590, 591, we read all jury instructions together to ascertain if they provided a correct statement of the law. (citing Veeder v. Kennedy, 1999 SD 23, , 589 NW2d 610, 618 (citations omitted)). Any instruction that is misleading, conflicting, or confusing creates reversible error. Id. (citing Veeder, 1999 SD 23, , 589 NW2d at 618). In addition to demonstrating that a particular instruction is misleading, conflicting, or confusing, an appellant also has the burden of showing that a different result would have been reached had the instruction not been given. Id. (citing Veeder, 1999 SD 23, , 589 NW2d at 618); Sundt Corp. v. South Dakota Dept. of Transp., 1997 SD 91, , 566 NW2d 476, 480.
ANALYSIS AND DECISION
. 1. Whether the trial court abused its discretion when it submitted the issue of contributory negligence to the jury.
. Johnson contends that the trial court abused its discretion when it allowed the jury to consider the issue of contributory negligence. In Boomsma v. Dakota, Minnesota, & Eastern Railroad Corp., 2002 SD 106, , 651 NW2d 238, 245-46, we explained:
Contributory negligence is a 'breach of duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause.'
(quoting Starnes v. Stofferahn, 83 SD 424, 432, 160 NW2d 421, 426 (1968)). Where plaintiff's contributory negligence is more than slight compared to defendant's negligence, plaintiff is barred from recovery. SDCL 20-9-2. As long as there is competent evidence to support the theory of contributory negligence, it is proper for the issue to go to the jury. Casa Del-Rey, 2002 SD 29, , 641 NW2d at 115.
. As an affirmative defense, Armfield had the burden of proof in establishing contributory negligence. See Bauman v. Auch, 539 NW2d 320, 326 (SD 1995). In this particular case, we believe Armfield presented insufficient evidence to justify submitting the issue of contributory negligence to the jury. The sole basis for Armfield's contributory negligence defense appears to be his own bare assertion that Johnson was speeding and Johnson's admission that she tended to drive five miles per hour over the speed limit.
. Without further competent evidence, we believe these factors were insufficient to support Armfield's theory of contributory negligence. Armfield's bare assertion that Johnson must have been speeding or he wouldn't have pulled out onto the street in the first place lacks evidentiary support. Armfield did not produce any expert testimony tending to show Johnson was speeding at the time of the accident. Furthermore, while Armfield was ticketed at the scene of the accident, the officer at the scene determined Johnson had not been speeding and declined to issue her a citation. In addition, Johnson also consistently testified she was going five miles per hour under the speed limit at the time of the accident.
. Even assuming arguendo that Johnson was speeding, her negligence must have been the proximate cause of her injury in order to bar recovery. Wilson v. Great Northern Railway Co., 83 SD 207, 213, 157 NW2d 19, 22 (1968). Here, Armfield failed to present any competent evidence that Johnson's speed was the proximate cause of her injuries. Armfield also fail
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