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Thompson v. Mehlhaff6/8/2005
lso set forth in Roth, 2003 SD 80, , 667 NW2d at 659:
Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court's decision absent a clear showing of abuse of discretion. If the trial court finds an injustice has been done by the jury's verdict, the remedy lies in granting a new trial. We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion.
Id., (citing Biegler v. American Family Mut. Ins. Co., 2001 SD 13, , 621 NW2d 592, 598).
DISCUSSION
[ .] At the close of the evidence, the trial court, although skeptical, allowed the question of contributory negligence to go to the jury. The jury was given instructions on negligence and contributory negligence. The jury found against Thompson returning a zero verdict and found in a special interrogatory that "Terry L. Thompson contributorily negligent more than slight." The trial court entered a judgment in favor of Mehlhaff based on the jury's verdict. Thompson moved for a judgment notwithstanding the verdict and for a new trial. The trial court granted Thompson's motion and entered judgment for Thompson and against Mehlhaff for liability based on the jury's finding that Baltzer was negligent. The trial court also granted a judgment notwithstanding the verdict on the jury's finding that Thompson was contributorily negligent. The court concluded that it should have granted Thompson's motion for directed verdict on contributory negligence at the end of the trial because there was insufficient evidence for the jury to find contributory negligence. Finally, having granted judgment notwithstanding the verdict for Thompson on liability, the trial court granted a new trial on damages.
[ .] Questions of negligence and contributory negligence are almost always questions for the jury. Nelson v. Nelson Cattle Co., 513 NW2d 900, 903 (SD 1994). When an action sounds in negligence, contributory negligence is available to temper the defendant's liability. Gehrts v. Batteen, 2001 SD 10, , 620 NW2d 775, 778. 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. Parker, 2002 SD 29, , 641 NW2d at 115. The threshold for granting a directed verdict is that no reasonable jury could find contributory negligence.
[ .] In support of the jury's verdict of contributory negligence more than slight, Mehlhaff submitted the following, which is viewed in the light most favorable to the verdict:
(1) it was general knowledge that drivers would try to stay off the hot side of the road whether they were empty or full;
(2) empty trailers can damage the hot side too;
(3) a foreman told a driver to use common sense so he always drove on the cold side whether empty or full;
(4) driver Baumiller testified that trucks would run empty on the cold side to stay off the new mat whenever possible;
(5) empty trucks driving on the cold side would use citizen's band radio communications to tell loaded trucks that they would get over to the hot side and out of the way;
(6) Baumiller said empty trucks drove on the cold side even after the collision that killed Baltzer and Thompson;
(7) driver Carr said it was common knowledge for empty trucks to travel on the cold side;
(8) an independent operator Magstadt had heard of other drivers getting chewed out for driving empty on the hot side;
(9) Waldera admitted that it was possi
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