Edwin G. ARTZ, Plaintiff and Appellant, v. Cindy MEYERS, Defendant and Appellee, 603 N.W.2d 532

AMUNDSON, Justice. [¶ 1.] Edwin Artz appeals the trial court’s submission of the “Legal Excuse” instruction to the jury and denial of Artz’s motion for a new trial. We affirm. FACTS [¶2.] On January 9, 1996, Edwin Artz (Artz) reported for work to the Rapid City bus barn. Artz noticed icy spots on Nemo Road as he proceeded west on his bus route. Approximately nine miles west of Rapid City on Nemo Road, Artz met an eastbound Jeep Grand Cherokee driven by Cindy Meyers (Meyers).

Meyers had traveled only one mile from her home when she met Artz’s school bus coming around a curve on Nemo Road near the intersection of Nemo Road and Schroeder Road. [¶ 3.] Artz testified that Meyers’ Jeep was “hogging the center of the road” as she came around the corner and suddenly, Meyers’ Jeep hit a patch of ice and began to jackknife and weave back and forth in the road. Artz steered his bus onto the shoulder of the road attempting to avoid the collision.

Despite Artz’s attempts, Meyers’ Jeep collided with the front of the school bus. [¶4.] Following the accident, Trooper Don Allen arrived on the scene to investigate the accident. Meyers informed him that she had been driving thirty-five miles per hour. The advisory speed limit sign posted before the curve identified thirty miles per hour as the advisory speed for the curve. Trooper Allen testified that an advisory speed limit is a suggested safe speed limit during normal weather conditions. Trooper Allen testified that Meyers was exceeding the safe speed, but not the speed limit.

Allen also testified that the ice on the curve indicated the path of Meyers’ vehicle. The marks on the road indicated that Meyers’ vehicle was on the right-hand side of the road when she started to lose control of her vehicle. Finally, Allen testified that the ice was visible on the roadway and that it did not make it impossible to drive around the curve. [¶ 5.] Artz brought suit against Meyers alleging negligence. At the conclusion of the trial, jury instructions were settled. Artz objected to Meyers’ proposed jury instruction on “legal excuse.” The trial court submitted this proposed instruction to the jury.

The jury returned a verdict for Meyers. Artz’s motion for new trial -based upon the trial court’s err in submitting the legal excuse instruction to the jury was denied. [¶ 6.] Artz appeals, raising the following issues: 1. Whether the trial court erred in submitting the “legal excuse” instruction to the jury. 2. Whether the trial court abused its discretion in denying plaintiffs motion for a new trial. DECISION [¶ 7.] 1. Whether the trial court erred in submitting the “legal excuse” instruction to the jury. [¶ 8.] The standard of review for a trial court’s instruction to the jury is well settled.

The standard states: An appellant has the burden to show not only that the instruction given was in error, but also that it was prejudicial error to the effect that under the evidence, the jury might and probably would have returned a different verdict if the [defendant’s instruction on legal excuse] had [not] been given. Knudson v. Hess, 1996 SD 137, ¶ 6, 556 N.W.2d 73, 75 (citing Sybesma v. Sybesma, 534 N.W.2d 355, 359 (S.D.1995) (quoting Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 64 (S.D.1992))).

A “party seeking to set aside the verdict because of erroneous instructions must establish that such instructions were prejudicial.” Cody v. Edward D. Jones & Co., 502 N.W.2d 558, 563 (S.D.1993) (citing Runge v. Prairie States Ins. of Sioux Falls, 393 N.W.2d 538, 541 (S.D.1986)). Whether submitting the instruction to the jury is prejudicial is considered “from the standpoint of what the trial judge knew from the evidence at the time he gave this instruction.” Del Vecchio v. Lund, 293 N.W.2d 474, 476 (S.D.1980). A trial court “is not required to instruct on issues lacking support in the record.” Kuper v.

Lincoln-Union Elec. Co., 1996 SD 145, ¶ 32, 557 N.W.2d 748, 758. If an issue before, the court is “ 'supported by competent evidence in the record, the trial court should instruct the jury.’ ” Id. (quoting Bauman v. Auch, 539 N.W.2d 320, 323 (S.D.1995)). [¶ 9.] The court gave instruction number 30, which reads as follows: Violation of the statutes referenced in instructions 23 and 24 are negligence unless they are legally excused. The Defendant carries the burden of proving by greater convincing force of the evidence that her non compliance was excusable because of an emergency not of her own making.

Under this standard, the defendant must prove: (1) that an emergency existed, (2) that she was not engaged in prior conduct which caused or contributed to the emergency, and (3) that she was unable to comply with the statute because of the emergency. [¶ 10.] We have previously noted that “where a driver encounters a sudden patch of ice on a roadway, loses control and crosses the centerline, his breach of the statute may be legally excused. It becomes a question for the jury whether the icy condition was foreseeable.” Dartt v. Berghorst, 484 N.W.2d 891, 896 (S.D.1992) (citing Bannon, 333 N.W.2d at 470).

In cases involving an “unavoidable accident instruction,” this Court has held that such an instruction is not appropriate when the occurrence is reasonably foreseeable. Id. (citing Howard v. Sanborn, 483 N.W.2d 796, 798 (S.D.1992); Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 17 (S.D.1988); Plucker v. Kappler, 311 N.W.2d 924, 925 (S.D.1981); Cordell v. Scott, 79 S.D. 316, 323, 111 N.W.2d 594, 598 (1961)). [¶ 11.] It is well settled that the issue of whether a party acted with reasonable care based upon the weather conditions is a question of fact to be determined by the jury. See Olson v.

Judd, 534 N.W.2d 850, 852 (S.D.1995) (noting that “the jury [is] to resolve the conflict in testimony regarding weather and road conditions.”); Dartt, 484 N.W.2d at 898 (Sabers, J., dissenting) (opining that “the burden of proving legal excuse is now properly upon Berghorst [the defendant], whether he meets this burden is for the jury”); Cordell, 79 S.D. at 323, 111 N.W.2d 594, 598 (noting that “[i]t was for the jury to determine whether or not under all the facts and circumstances defendant should reasonably have anticipated ... ice ... and whether he was exercising due care under the circumstances.”). [¶ 12.] Artz argues the trial court should not have submitted this instruction to the jury because there was no emergency.

Artz argues that based upon the testimony of himself and Mr. Niemeier, the witness of the accident, that Nemo Road contained icy spots the morning of the accident and Meyers own testimony about “you’re always cautious of ice” unless the weather is beautiful shows that she was knowledgeable about the icy conditions on Nemo Road and that her own conduct contributed to the accident. [¶ 13.] In support of his contentions, Artz cites Dartt, 484 N.W.2d 891. In Dartt, a truck driver attempted to pass a snowplow, drove into the snow cloud created by the snowplow, and hit the plaintiffs vehicle from behind. Id. at 892.

The trial court gave a “legal excuse” instruction to the jury. Id. at 893. After a jury verdict was rendered in defendant’s favor, Dartt’s motion for judgment notwithstanding the verdict was denied. Id. In reversing the trial court’s erroneous denial of Dartt’s motion for J.N.O.V., this Court found that “there was not sufficient evidence to support a jury finding that Berghorst was faced with a sudden emergency, the matter should not have been submitted to the jury.” Id. at 898.

In the case, evidence was presented that Berghorst saw the snow cloud created by the snowplow, he failed to wait and see if visibility improved, he stated that he was not surprised that his visibility was obstructed when he entered the cloud; as such, “it was certainly foreseeable that once Berghorst entered the snow cloud, he would be blinded.” Id. at 897.

Finally, this Court noted the settled rule that “a party can claim no better version of the facts than he has given in his own testimony.” Id. [¶ 14.] We noted in Dartt, that where “road conditions are generally icy, the driver is deemed to be aware of the poor road conditions. If he fails to drive accordingly and then loses control on ice, breaching the statute, he cannot set up the icy condition as an emergency.” Id. at 896 (citing Bannon v. Pfiffner, 333 N.W.2d 464, 469-70 (Iowa 1983)).

Artz’s counsel would have us rule that, based upon prior history of the icy. inclinations of Nemo Road on any day during the winter, icy roads are foreseeable. Such an expansion of the foreseeability test in Dartt, which is requested by Artz, is beyond what this Court intended. We find Dartt is distinguishable from the present case because Dartt lacked sufficient evidence to present the issue of foreseeability to the jury.

In the present case, sufficient evidence exists as to whether it was foreseeable that Meyers would encounter ice on Nemo Road. [¶ 15.] The trial court is “not required to instruct on issues lacking support in the record.” Kuper, 1996 SD 145, ¶ 32, 557 N.W.2d at 758. In the case at hand, Artz has the burden of showing that the trial judge’s giving of the “legal excuse” jury instruction was prejudicial. Knudson, 1996 SD 137, ¶ 6, 556 N.W.2d at 75.

Additionally, Artz must show that the “jury might and probably would have reached a different verdict, one in [his] favor, had the instruction at issue not been given.” Id., ¶ 15, 556 N.W.2d at 77 (citing LDL Cattle Co., Inc. v. Guetter, 1996 SD 22, ¶ 35, 544 N.W.2d 523, 530; Chambers, 488 N.W.2d at 64). . [¶ 16.] Artz argues that Meyers created her own emergency by driving too fast on foreseeable icy conditions and that she should be precluded from taking advantage of a legal excuse instruction.

In reviewing the record, Meyers testified she had not seen any ice until she reached the curve, she “couldn’t do anything with my vehicle. It didn’t respond,” and there was nothing she could do to control her vehicle. [¶ 17.] Based upon the above testimony, there is an obvious credibility conflict in the evidence submitted by the parties to the jury. We have always held that credibility is for the jury to decide.

In addition, “ ‘[t]his court has repeatedly said that issues of negligence, contributory negligence, and the comparative extent thereof, and proximate cause are ordinarily questions of fact[.]’ ” Hossle v. Fountain, 1999 SD 104, ¶ 8, 598 N.W.2d 877, 879 (quoting Theunissen v. Brisky, 438 N.W.2d 221, 223 (S.D.1989)). To ] the jury’s decision to a certain set of facts encroaches and violates the role of the jury as the finder of fact.” Id. Here, in reviewing the evidence, it supports the submission of the legal excuse instruction to the jury. Therefore, we affirm the trial court on this issue. [¶ 18.] 2.

Whether the trial court abused its discretion in denying plaintiffs motion for a new trial. [1119.] At the conclusion of the trial, Artz’s counsel made a motion for new trial pursuant to SDCL 15-6-59(a)(7), which states in part: A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes:

(7) Error of law occurring at the trial; provided, that in the case of claim of error, admission, rejection of evidence, or instructions to the jury or failure of the court to make a finding or conclusion upon a material issue which had not been proposed or requested, it must be based upon an objection, offer of proof or a motion to strike. A motion for new trial made pursuant to SDCL 15-6-59(

a) is reviewed under the abuse of discretion standard. Hossle v. Fountain, 1999 SD 104, ¶ 5, 598 N.W.2d 877, 878 (citing In Re Widdison, 539 N.W.2d 671, 677 (S.D.1995)). “ ‘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.’ ” Dartt, 484 N.W.2d at 894 (quoting Kusser v. Feller, 453 N.W.2d 619, 621 (S.D.1990)).

It is well settled that “ ‘[t]he term abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Hossle, 1999 SD 104, ¶ 5, 598 N.W.2d at 878 (quoting Moore v. Moore, 354 N.W.2d 732, 733 (S.D.1984) (internal quotations omitted) (quoting Herndon v. Herndon, 305 N.W.2d 917, 918 (S.D.1981))).

This Court has also previously noted that we will “ ‘determine that an abuse of discretion occurred only if no “judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.” ’ ” Dartt, 484 N.W.2d at 894 (quoting Jensen v. Weyrens, 474 N.W.2d 261, 263 (S.D.1991) (quoting Estate of Pejsa, 459 N.W.2d 243, 245 (S.D.1990); Estate of Smith, 401 N.W.2d 736 (S.D.1987))). [¶ 20.] It is well settled that the defendant has the burden of proving legal excuse. Dartt, 484 N.W.2d at 894 (citing Stevens, 426 N.W.2d at 16; Meyer v.

Johnson, 254 N.W.2d 107, 111 (SD 1977)). In Dartt, the trial court gave a legal excuse instruction, but failed to instruct the jury regarding the defendant’s burden of proving legal excuse. Id. at 895. This Court held in Dartt that the trial court did not “give a full and correct statement of the applicable law” and thus affirmed the trial court’s granting of a new trial. Id. [¶ 21.] In Olson v. Judd, 534 N.W.2d 850, 851 (S.D.1995), a recent opinion of this Court, two vehicles were traveling up Boulder Canyon toward Deadwood, South Dakota.

Both vehicles were familiar with the winter driving conditions in the canyon. Id. Snow had begun to fall, the roadway was wet, and snow was beginning to accumulate on the roadway. Id. Due to the weather conditions, Judd reduced his speed to 20-30 mph. Id. As Judd came around a corner, he suddenly hit a slippery spot. Id. Judd’s van began to slide into the oncoming path of Olson’s vehicle and subsequently collided with Olson in Olson’s lane of traffic. Id. The issue in Olson was whether the trial court erred in denying Olson’s motion for directed verdict, motion for J.N.O.V., and motion for new trial. Id. at 852.

In response to Judd’s defense that the collision was unavoidable due to the weather conditions and despite his exercise of reasonable care, we noted that generally it is “ ‘for the jury to resolve the conflict in testimony regarding weather and road conditions.’ ” Id. (quoting Weber v. Bernard, 349 N.W.2d 51, 53-54 (S.D.1984)). [¶ 22.] In the case of Bakker v.

Irvine, 519 N.W.2d 41 (S.D.1994), we ruled on the issue of new trial and stated therein: “The real and only question to be solved and answered is, Is there any legal evidence upon which the verdict can properly be based, and the conclusions embraced in and covered by it be fairly reached?

It is the province of the jury to weigh and pass upon the evidence; to reconcile conflicting testimony; to determine the truth or value of evidence; to ascertain and declare, from all the evidence and testimony, the facts of the case; and from the facts, when ascertained by them, and the law as given to them by the court, to arrive at and announce their decision, which is their verdict.” Id. at 49 (quoting Drew v. Lawrence, 37 S.D. 620, 624, 159 N.W. 274, 275 (1916) (citations omitted)) (emphasis in original).

We conclude that, based upon the evidence presented and the instructions given to the jury, there is support for the jury verdict and the trial court did not abuse its discretion in denying the motion for new trial. [¶ 23.] We Affirm. [¶ 24.] MILLER. Chief Justice, KONENKAMP and GILBERTSON, Justices, concur. [¶ 25.] SABERS, Justice, dissents. . Artz’s bus route required him to travel west on Nemo Road away from Rapid City. . The jury was instructed on speed in jury instruction twenty-three.

The instruction provided: A statute in the state of South Dakota provides: Any person driving a motor vehicle on a highway located in this state must not drive said vehicle at a speed greater than is reasonable and prudent under the conditions then existing. This statute sets the standard of care of the ordinarily careful and prudent person. If you find defendant violated it, such violation is negligence. . The dissent argues that this is a negligence case. No one can dispute that fact.

The court instructed the jury on the duty to maintain proper control of a motor vehicle under similar circumstances, driving at a reasonable and prudent speed under existing conditions, and driving on the right side of the road. Further, these instructions stated to the jury that a violation of any of these rules of the road constitutes negligence. During closing argument to the jury, Artz’s attorney argued the following: But it doesn't matter whether you know there is ice or not, that's not really the point. The point is when you go around those sharp curves that you be prepared. That’s all.

And the point is that if you do get on ice that you don’t act inappropriately and just slam on your brakes and start cutting cookies down the road. In rebuttal, Artz’s counsel once again stated: What difference does it make if there is ice? If there is ice, that's what we drive on and everyone else drives on it that day. Everyone else drove around the corner. I’m not saying it’s a crime. I’m just saying it’s a mistake. The jury voted 12-0 that there was no mistake. This Court should not second guess the jury in finding a mistake based upon this record.

See, e.g., Kuper, 1996 SD 145, ¶ 36, 557 N.W.2d at 759 (noting that " '[t]his court does not weigh the evidence and substitute its judgment for that of the jury' "). The jury was given a general verdict form and we are unable to find if the jury found no negligence or whether they found Artz failed to prove damages were caused by this accident. The record reflects that there was a major dispute as to damages sustained. We have always held that if there is any reason to support a jury verdict, it should be upheld. See Builders Supply Co., Inc. v. Carr, 276 N.W.2d 252, 257 (S.D.1979).

That is the case here, this Court should not act as a thirteenth juror to overrule a jury’s unanimous verdict.