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Johnson v. Armfield11/25/2003
ed to present any evidence that Johnson could have acted in time to avoid the accident. By itself, Armfield's testimony does not sufficiently establish that Johnson's speed was the proximate cause of her injuries. See Lockwood v. Schreimann, 933 SW2d 856, 859 (MoCtApp 1996) (Stating " he causal connection between excessive speed and the collision must be established by the evidence and cannot be left to mere speculation and conjecture."). Because Armfield failed to present competent evidence tending to suggest Johnson's speed proximately caused her injuries, the only reasonable interpretation of the facts is that Armfield's crossing two lanes of traffic and striking Johnson's vehicle was the proximate cause of Johnson's injuries.
. As we have consistently recognized, "an appellant must show not only that a particular instruction was erroneous, but also that it was prejudicial, meaning the jury probably would have returned a different verdict if the faulty instruction had not been give." Veeder, 1999 SD 23, , 589 NW2d at 618 (citing LDL Cattle Co., Inc. v. Guetter, 1996 SD 22, , 544 NW2d 523, 530) (additional citations omitted). In this case, although the jury did not return a special verdict finding contributory negligence on the part of Johnson, contributory negligence formed the basis of Armfield's defense. Thus, it is logical to conclude that the jury denied any recovery for Johnson because it believed Johnson's negligence was more than slight in comparison to Armfield's admitted negligence. As explained above, however, we do not believe it was proper to submit the issue of contributory negligence to the jury because Armfield failed to provide sufficient evidence in support of his affirmative defense. We have stated that " here the evidence supporting the verdict is so weak . . . and a lack of evidence pointing to other causes unrelated to the defendants' alleged negligence is so total, our clear duty is to consider the error prejudicial." Stevens v. Wood Sawmill, Inc., 426 NW2d 13, 17 (SD 1988) (reversing a jury's verdict where the facts did not support an unavoidable accident instruction).
. Armfield failed to present sufficient evidence to support instructing the jury on his theory of contributory negligence. In addition, as contributory negligence was the heart of Armfield's defense, the improper contributory negligence instruction clearly prejudiced Johnson. Thus, we believe the trial court abused its discretion when it instructed the jury on the issue of contributory negligence, and Johnson is entitled to a new trial.
. 2. Whether the trial court erred when it instructed the jury that a violation of the speed limit by Johnson constituted contributory negligence without reference to proximate cause.
. Because we hold the issue of contributory negligence should not have been submitted to the jury, it is unnecessary to address issue two.
. Reversed and remanded for a new trial.
. SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.
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