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Thompson v. Mehlhaff6/8/2005
ble that drivers with empty trailers did not always drive on the hot side of the road
(10) Trooper Hanson testified that one reason Baltzer
(11) braked hard could have been an oncoming vehicle in his lane of travel;
(12) Michael Selves indicated it would be a normal reaction for a driver to swerve into the other lane to avoid something in his direct lane of travel
(13) investigator Lofgren could not dispute that Baltzer's skid marks began in the cold lane and show that he braked and steered into the hot lane;
(14) Thompson did not brake or attempt any evasive maneuvers to avoid the collision while Baltzer left 90 feet of skid marks
"A claim that the evidence was insufficient to establish contributory negligence is viewed 'in the light most favorable to upholding the verdict.'" Johnson v. Armfield, 2003 SD 134, , 672 NW2d 478, 481 (citing Parker, 2002 SD 29, , 641 NW2d at 115).
[ .] Mehlhaff's "evidence" of contributory negligence is built on speculation and innuendo. Several witnesses testified that drivers sometimes returned empty on the cold side of the road instead of on the hot side in violation of the "rules of the road" for the project. However, no one testified that Thompson was on the cold side of the road at or near the time of the collision or that he had ever returned empty on the cold side. Additionally, there was no physical evidence that Thompson was on the cold side prior to the collision and everybody agreed that he was on the hot side of the road at the time of the collision. Speculation that Thompson "might have been" on the cold side did not meet the threshold necessary to create a question of fact for the jury on contributory negligence.
[ .] We agree with the trial court that Thompson's motion for a directed verdict on contributory negligence should have been granted at the end of the evidence. Therefore, it was not an abuse of discretion to grant the motion for judgment notwithstanding the verdict. Since there was ample evidence for the jury to find Mehlhaff negligent, it was also not an abuse of discretion to allow the verdict against Mehlhaff to stand. All that was left was to set a new trial on damages.
[ .] Mehlhaff further complains that the trial court erroneously instructed the jury that Thompson was entitled to a presumption of due care:
Instruction No. 18
It is the established law of this state that in the absence of any evidence as to the conduct of a person who died of injuries received in an accident, there is the presumption that he, acting on the instinct of self-preservation, was in the exercise of ordinary care. The Court rules that this presumption is applicable only to the conduct of Terry Thompson. Stanley Baltzer is not entitled to the presumption.
In Theunissen v. Briskey, 438 NW2d 221, 224 (SD 1989), this Court said " his is a presumption, in the absence of evidence to the contrary, that a person killed in an auto accident was exercising due care for his protection at, and immediately before, the accident." Olesen v. Snyder, 277 NW2d 729, 735 (SD 1979); Dehnert v. Garrett Feed Company, 84 SD 233, 236, 169 NW2d 719, 721 (1969); Vaughn v. Payne, 75 SD 292, 63 NW2d 798 (1954). "This presumption is based on the natural instinct of self-preservation and the normal disposition to avoid self-destruction or personal harm." Id. Since we have concluded that the trial court was correct in granting the motion for judgment notwithstanding the verdict because there was no evidence of contributory negligence, this instruction was properly given over Mehlhaff's objection that it was not supported by the evidence.
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