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Thompson v. Mehlhaff6/8/2005
nwood construction project.
[ .] Mehlhaff argued that Spencer Quarries was partly responsible for the collision because Spencer Quarries' "rules of the road" for the project required trucks to drive on the wrong side of the road, confusing the drivers and contributing to the collision. Mehlhaff's request for apportionment was based on comparative negligence and supported by cases from several other jurisdictions with comparative negligence statutes. Significantly, Mehlhaff did not claim Spencer Quarries' alleged negligence was the sole proximate cause of the accident.
[ .] Mehlhaff's position has previously been rejected by this Court in Parker v. Casa Del Ray-Rapid City, Inc., 2002 SD 29, , 641 NW2d 112, 120-21. In that case this Court adopted a Nebraska rule that precludes the employer, who could not be held liable because worker 's compensation is the exclusive remedy, to be interjected into the case unless it was claimed that the employer's negligence was the sole proximate cause of the employee's injury. Id. Since Mehlhaff sought to apportion liability with Spencer Quarries, and did not claim that Spencer Quarries was entirely responsible for the collision, the trial court's ruling was correct and not an abuse of discretion.
ISSUE FOUR
[ .] Whether the trial court erred in granting the judgment notwithstanding the verdict on the issue of contributory negligence and ordering a new trial on the issue of damages.
STANDARD OF REVIEW
[ .] The standard of review on a motion for directed verdict and judgment notwithstanding the verdict is set forth in Roth v. Farner-Bocken, 2003 SD 80, , 667 NW2d 651, 658-59:
A motion for directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court's decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.
A motion for judgment n.o.v. is based on and relates back to a directed verdict motion made at the close of all the evidence. SDCL 15-6-50(b). Thus, the grounds asserted in support of the directed verdict motion are brought before the trial court for a second review. We review the testimony and evidence in a light most favorable to the verdict or the nonmoving party, then without weighing the evidence must decide if there is evidence which would have supported or did support a verdict[.]
In Fechner v. Case, 2003 SD 37, , 660 NW2d 631, 633-34, this Court stated:
Rulings on motions for judgment notwithstanding verdict are reviewed under the abuse of discretion standard. Bland v. Davison County, 1997 SD 92, , 566 NW2d 452, 460. Evidence and inferences most favorable to the non-moving party are examined to determine whether there is substantial evidence to support the jury's judgment. Robinson v. Mudlin, 273 NW2d 753, 755 (SD 1979). Conflicting evidence is not reweighed; witness credibility is not reassessed. The moving party's evidence is only given consideration if it is uncontradicted or tends to amplify, clarify or explain evidence which supports the verdict. Dartt v. Berghorst, 484 NW2d 891, 895 (SD 1992); Nugent v. Guam, 82 SD 583, 589, 152 NW2d 371, 374 (1967).
The standard of review on a motion for new trial is a
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