#24551-rev&rem-ROEHR, Circuit Judge 

2008 SD 42 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

EDITH G. HARMON and 

JOSEPH HARMON, Plaintiffs and Appellants, 

 v. 

ANITA M. WASHBURN, Defendant and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SIXTH JUDICIAL CIRCUIT 

HAAKON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JAMES W. ANDERSON 

Judge 

* * * * 

DYLAN A. WILDE 

THOMAS E. BRADY of 

Brady Pluimer, PC 

Spearfish, South Dakota 

COURTNEY R. CLAYBORNE of 

Clayborne, Loos, Strommen & 

 Sabers, LLP Attorneys for plaintiffs 

Rapid City, South Dakota and appellants. 

ROBERT B. ANDERSON of 

May, Adam, Gerdes & Thompson, LLP Attorneys for defendant 

Pierre, South Dakota and appellee. 

* * * * 

 CONSIDERED ON BRIEFS 

 JANUARY 7, 2008 

 OPINION FILED 6/4/08 
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ROEHR, Circuit Judge 

[¶1.] Edith G. Harmon (Edith) and Joseph Harmon (Joseph) (collectively 

Harmons) brought a negligence action for personal injuries against Anita M. 

Washburn (Washburn). The trial court denied Harmons' motion for judgment as a 

matter of law on the issue of Washburn's negligence and on the issue of Edith's 

contributory negligence. The jury returned a general verdict denying Harmons' 

claim.1 The trial court then denied Harmons' renewed motion for judgment as a 

matter of law and, alternatively, for a new trial. Harmons appeal the denial of their 

motions. We reverse and remand. 

FACTS 

[¶2.] On December 23, 2001, Washburn was driving the lead vehicle in a 

caravan of approximately ten vehicles. The caravan traveled south on Highway 34 

at approximately ten miles per hour, as it approached a bridge over the Cheyenne 

River. A line of horseback riders was off to the left of the highway, traveling south, 

and parallel to the highway. The caravan was traveling in support of the horseback 

riders. The vehicles in the caravan were separated from each other by a distance of 

approximately one vehicle length. 

[¶3.] Edith and her husband, Joseph, were driving separate vehicles south 

on Highway 34. Joseph was following Edith. Edith saw the caravan from a 

distance and slowed as she approached it. She noticed the horseback riders to the 

left of the highway. Edith followed the caravan for a time, then started to pass just 

 

1. Washburn counterclaimed against Edith, alleging negligence and personal 

injuries. The jury returned a general verdict denying Washburn's claim. 

Washburn has not appealed that verdict. 
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before coming to the bridge. Prior to passing, Edith checked for oncoming traffic, 

checked her mirrors, and used her turn signal to signal her pass. Edith's vehicle 

was equipped with daytime running lights. The evidence is disputed as to whether 

or not the drivers in the caravan had activated their emergency flashers. Edith 

drove thirty to thirty-five miles per hour as she passed the caravan. She was about 

to overtake the Washburn vehicle as it was nearing the south end of the bridge. 

[¶4.] As she neared the south end of the bridge, Washburn wanted to turn 

off the highway to wait for and meet the horseback riders. Washburn considered 

turning right off the highway, but decided to turn left onto an approach. The 

approach was lower than the level of the highway and was not visible from a 

distance. The vehicles driven by Washburn and Edith collided as Washburn was 

making the left turn. The evidence is disputed as to whether or not Washburn 

signaled her left turn. The entire incident took place in a legal passing zone with a 

sixty-five mile per hour speed limit. Visibility was good and there was no oncoming 

traffic. 

[¶5.] After the accident, Joseph transported Edith to an emergency room at 

a Pierre hospital, where she was examined and had glass removed from an abrasion 

on her arm. Thereafter, Edith was treated for other alleged injuries. 

[¶6.] Harmons filed a negligence action for personal injuries against 

Washburn. The action was tried to a jury over two days. Washburn denied her 

negligence, asserted Edith's contributory negligence, and contested the nature and 

extent of Harmons' injuries. After all the evidence had been presented, Harmons 

moved for judgment as a matter of law on the issue of Washburn's negligence and 
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on the issue of Edith's contributory negligence. The trial court denied the motion. 

The jury returned a general verdict for Washburn. Harmons then renewed their 

motion for judgment as a matter of law and, alternatively, for a new trial. The trial 

court also denied this motion. Harmons appeal. 

ISSUES 

[¶7.] Harmons raise the following issues on appeal: 

Whether the trial court abused its discretion when it 

denied Harmons' motion for judgment as a matter of law. 

Whether the trial court abused its discretion when it 

denied Harmons' renewed motion for judgment as a 

matter of law and, alternatively, for a new trial. 

STANDARD OF REVIEW 

[¶8.] A trial court's ruling on a motion for directed verdict is reviewed under 

the abuse of discretion standard. Christenson v. Bergeson, 2004 SD 113, ¶ 10, 688 

NW2d 421, 425 (citing Gilkyson v. Wheelchair Express Inc., 1998 SD 45, ¶ 7, 579 

NW2d 1, 3 (additional citations omitted)). "An abuse of discretion occurs when 'no 

judicial mind, in view of the law and the circumstances of the particular case, could 

reasonably have reached such a conclusion.'" Id. (quoting Bridge v. Karl's Inc., 538 

NW2d 521, 523 (SD 1995) (citations omitted). This Court's task on appeal, "is to 

review the record and ascertain whether there is any substantial evidence to allow 

reasonable minds to differ." Id. ¶ 11 (citations omitted). "If sufficient evidence 

exists so that reasonable minds could differ, a directed verdict is not appropriate." 

Id. ¶ 22 (citation omitted). 

[¶9.] Likewise, the trial court's ruling on a motion for judgment 

notwithstanding the verdict is reviewed under the abuse of discretion standard. Id. 
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¶ 12 (citing Welch v. Haase, 2003 SD 141, ¶ 19, 672 NW2d 689, 696 (citation 

omitted)). The testimony and evidence are reviewed "in a light most favorable to 

the verdict or to the nonmoving party." Id. (quoting Sabag v. Continental South 

Dakota, 374 NW2d 349, 355 (SD 1985) (citing Ziebarth v. Schnieders, 342 NW2d 

234, 236 (SD 1984))). "[W]ithout weighing the evidence [this Court] must decide if 

there is evidence which would have supported or did support a verdict." Id. (quoting 

Sabag, 374 NW2d at 355 (citing Corey v. Kocer, 86 SD 221, 226-27, 193 NW2d 589, 

593 (1972))). 

[¶10.] In 2006 SDCL 15-6-50(a) and (b) were amended. The substantial 

changes made by this amendment include referring to a motion for directed verdict 

as a motion for judgment as a matter of law and denominating a motion for 

judgment notwithstanding the verdict as a renewed motion for judgment as a 

matter of law. These amendments, however, do not change our standard of review – 

which remains abuse of discretion. The abuse of discretion standard is also utilized 

"when reviewing a trial court's denial of a motion for a new trial." Christenson,

2004 SD 113, ¶ 13, 688 NW2d at 426 (citing Olson v. Judd, 534 NW2d 850, 852 (SD 

1995) (citing Treib v. Kern, 513 NW2d 908, 911 (SD 1994))). 

DECISION 

ISSUE ONE 

[¶11.] Whether the trial court abused its discretion when it denied 

Harmons' motion for judgment as a matter of law. 

[¶12.] At the close of the evidence Harmons moved for a judgment as a 

matter of law on the issue of Washburn's negligence and on the issue of Edith's 

contributory negligence. SDCL 15-6-50(a)(1) provides: 
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If during a trial by jury a party has been fully heard on an 

issue and there is no legally sufficient evidentiary basis 

for a reasonable jury to find for that party on that issue, 

the court may determine the issue against that party and 

may grant a motion for judgment as a matter of law 

against that party with respect to a claim or defense that 

cannot under the controlling law be maintained or 

defeated without a favorable finding on that issue. 

"Only in exceptional cases may the verdict be directed in favor of the party having 

the burden of proof." Christenson, 2004 SD 113, ¶ 24, 688 NW2d at 428. 

"[W]hen the evidence on behalf of the moving party is 

clear and full, credible and not contradicted, and is so 

plain and complete that reasonable minds could come to 

no other conclusion[,]" a motion for directed verdict may 

be granted. Id. (quoting Langdon v. Reuppel, 81 SD 289, 

291, 134 NW2d 293, 294 (1965). But if, when viewed in a 

light most favorable to the nonmoving party, there is any 

substantial evidence to sustain the cause of action or 

defense, it must be submitted to the finder of fact. SDCL 

15-6-50(a). Denke v. Mamola, 437 NW2d 205, 207 (SD 

1989). 

Id.

[¶13.] Harmons argue that Washburn's driving that day violated at least 

five different South Dakota statutes and that each such violation "constitutes 

negligence per se." Alley v. Siepman, 214 NW2d 7, 9 (SD 1974). Concerning the 

first alleged violation, SDCL 32-26-18.1 provides in pertinent part: 

No person may turn a vehicle at an intersection unless 

the vehicle is in proper position upon the roadway as 

required by §§ 32-26-17 and 32-26-18. A signal of 

intention to turn right or left when required shall be given 

continuously during not less than the last one hundred 

feet traveled by the vehicle before turning. . . . 

The evidence on this point consisted of the testimony of Harmons, Washburn, and 

Washburn's daughter, Amanda Washburn. Both Harmons testified that 
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Washburn did not use her turn signal. Viewing the evidence in the light most 

favorable to Washburn, Washburn's daughter testified that her mother signaled the 

left turn fifteen feet before turning; Washburn testified, in effect, that she signaled 

the turn at most forty-four feet prior to the turn.2

[¶14.] Based on the testimony it is undisputed that Washburn violated the 

statute and was negligent per se. Therefore, we do not address Harmons' argument 

regarding the other five statutes violated. It was error for the trial court not to 

grant a judgment as a matter of law on the issue of Washburn's negligence. 

[¶15.] Harmons also sought a judgment as a matter of law that Edith was not 

contributorily negligent. 

Contributory negligence is a 'breach of duty which the law 

imposes upon persons to protect themselves from injury, 

and which, concurring and cooperating with actionable 

negligence for which defendant is responsible, contributes 

to the injury complained of as a proximate cause.' 

(quoting Boomsma v. Dakota, Minnesota, & Eastern 

Railroad Corp., 2002 SD 106, ¶ 34, 651 NW2d 238, 245-46 

(additional citations omitted)). Where plaintiff's 

contributory negligence is more than slight compared to 

defendant's negligence, plaintiff is barred from recovery. 

SDCL 20-9-2. 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. Id. (citing Parker v. Casa 

Del Rey, 2002 SD 29, ¶ 5, 641 NW2d 112, 115). 

Johnson v. Armfield, 2003 SD 134, ¶ 10, 672 NW2d 478, 481. 

[¶16.] Edith looked in her mirror and signaled before passing. Her car was 

equipped with daytime running lights. The day was clear. There was no oncoming 

2. Washburn testified that she was driving ten miles per hour and signaled two 

or three seconds prior to the turn. The jury was provided with a 

mathematical formula to make the computation for distance. 
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traffic. She was in a legal passing zone and passed at thirty to thirty-five miles per 

hour in a sixty-five mile per hour zone. When Washburn made the left turn, Edith 

was unable to avoid the accident. 

[¶17.] Washburn argues that Edith ought not to have passed on a bridge 

because the guardrails on the left would prevent her from leaving the highway in 

that direction to avoid an accident. This is tantamount to arguing that no one 

should ever pass on this bridge because of the guardrail on the left, which 

completely ignores the fact that it is a legal passing zone. Furthermore, "a motorist 

has the right to assume that other drivers will obey the rules of the road." Treib, 

513 NW2d at 913 (citing Nelson v. McClard, 357 NW2d 517 (SD 1984)). 

[¶18.] Washburn also argues that Edith was driving too fast. There is no 

evidence to support this assertion. All the evidence is that Edith was driving thirty 

to thirty-five miles per hour in a sixty-five mile per hour zone to pass Washburn's 

vehicle, which was traveling ten miles per hour. 

[¶19.] Under these circumstances, passing a caravan, as opposed to one 

vehicle, is not evidence of contributory negligence. There was no oncoming traffic. 

Edith successfully passed all the cars in the caravan except the lead vehicle. 

Whether she was passing a fifty-car caravan or just one vehicle, the accident arose 

from the manner in which two vehicles were driven – Washburn's vehicle and 

Edith's vehicle. 

[¶20.] Washburn implies that the caravan and the horseback riders to the 

left, and by then to the rear, should have caused Edith to reasonably anticipate 

Washburn's turn. Washburn offers no further explanation as to why Edith should 
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have anticipated the turn, much less one without a proper signal. Again, Edith had 

the right to assume Washburn would follow the rules of the road. Id. 

[¶21.] There was no legally sufficient evidentiary basis for a reasonable jury 

to find Edith contributorily negligent. The trial court erred by not granting the 

judgment as a matter of law on this issue. 

ISSUE TWO 

[¶22.] Whether the trial court abused its discretion when it denied 

Harmons' renewed motion for judgment as a matter of law and, 

alternatively, for a new trial. 

[¶23.] After the jury returned its general verdict in favor of Washburn, 

Harmons renewed their motion for judgment as a matter of law. SDCL 15-6-50(b) 

provides in pertinent part: 

If, for any reason, the court does not grant a motion for 

judgment as a matter of law made at the close of all the 

evidence, the court is considered to have submitted the 

action to the jury subject to the court's later deciding the 

legal questions raised by the motion. The movant may 

renew its request for judgment as a matter of law by filing 

a motion no later than ten days after notice of entry of 

judgment—and may alternatively request a new trial. . . . 

[¶24.] Our standard of review is abuse of discretion. Christenson, 2004 SD 

113, ¶ 12, 688 NW2d at 425. In reviewing the renewed motion for judgment as a 

matter of law, we, again, "review the testimony and evidence in a light most 

favorable to the verdict or to the nonmoving party." Id. We must determine, 

without weighing the evidence, whether there is evidence which would or did 

support the jury's verdict. Id. 

[¶25.] As previously discussed, Washburn was negligent as a matter of 

law and Edith was not contributorily negligent as a matter of law. However, 
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we must also review the testimony and evidence regarding Harmons' 

damages. The jury's general verdict in favor of Washburn would be 

supported by the evidence if the jury was able to find that Harmons had not 

incurred damages as a proximate result of the accident. 

[¶26.] Edith's primary claim of damages was an injury to her lower 

back. Considerable evidence was presented to the jury regarding the nature 

and extent of the injury and the need for treatment. Washburn strongly 

disputed this evidence. However, Edith's damage claim also included the cost 

of an examination and the removal of glass from an abrasion on her arm at a 

Pierre hospital emergency room immediately after the accident. This 

evidence is undisputed. Consequently, Harmons suffered damages as a 

proximate result of the accident. 

[¶27.] The evidence does not support the jury's verdict. The trial court 

abused its discretion in not granting the renewed motion for judgment as a 

matter of law on liability and granting a new trial on damages. 

[¶28.] We reverse and remand. 

[¶29.] KONENKAMP and MEIERHENRY, Justices, concur. 

[¶30.] GILBERTSON, Chief Justice, and PORTRA, Circuit Judge, 

dissent. 

[¶31.] ROEHR, Circuit Judge, for SABERS, Justice, disqualified. 

[¶32.] PORTRA, Circuit Judge for ZINTER, Justice, disqualified. 
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PORTRA, Circuit Judge (dissenting) 

[¶33.] I respectfully dissent. The majority substitutes its judgment for that of 

the trial court and the jury, and in the process, undermines the validity of the jury 

system. 

[¶34.] The majority acknowledges that the proper standard of review is 

whether the trial court abused its discretion. This Court previously explained that 

standard as follows: 

Our standard of review of the circuit court's denial of a 

directed verdict and of the jury's determination in favor of 

[the defendant] is well established. We must examine the 

evidence in the light most favorable to the non-moving 

party and give him the benefit of all reasonable 

inferences. Robinson v. Mudlin, 273 NW2d 753, 755 (SD 

1979). The moving party is entitled to evidentiary 

consideration only where its evidence is uncontradicted or 

tends to amplify, clarify or explain the evidence in support 

of the verdict of the jury for the prevailing party. Nugent 

v. Quam, 82 SD 583, 152 NW2d 371, 374 (1967). 

In such a context, it becomes our task to review the record 

and determine whether there is any substantial evidence 

to allow reasonable minds to differ. Haggar v. Olfert, 387 

NW2d 45 (SD 1985). This Court does not weigh the 

evidence and substitute its judgment for that of the jury. 

Robinson, 273 NW2d at 755; Berg v. Sukup Mfg., 355 

NW2d 833, 835 (SD 1984). The decision of the jury is 

likely to be upheld as questions of negligence . . . are for 

the determination of the jury 'in all except the rarest of 

instances.' Stoltz v. Stonecypher, 336 NW2d 654, 657 (SD 

1983). 

Whether the jury's verdict should result in a new trial 

being granted is left to the sound discretion of the trial 

court. We will not overturn that ruling without a clear 

showing of an abuse of discretion. Dartt v. Berghorst, 484 

NW2d 891, 894 (SD 1992) [95 SDO 579]. An abuse of 

discretion occurs only if no "'judicial mind, in view of the 

law and the circumstances of the particular case, could 
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reasonably have reached such a conclusion.'" Id. (quoting 

Jensen v. Weyrens, 474 NW2d 261, 263 (SD 1991)). 

Bridge v. Karls, Inc., 538 NW2d 521, 523 (SD 1995). This standard of review is the 

most deferential applied by this Court. Yet according to the majority, the 

experienced trial court and the twelve men and women of the jury selected by the 

parties apparently came to a conclusion, by unanimous decision, that no reasonable 

person could come to. 

[¶35.] It is without question that Washburn was negligent. However, that is 

not the end of our inquiry. If the jury found that Harmon was contributorily 

negligent, more than slight, then she is precluded from recovery. Although the 

violation of a statute may be negligence per se, one does not have to violate a 

statute in order to be negligent. 

Negligence is the failure to use reasonable care. It is the 

doing of something which a reasonable person would not 

do, or the failure to do something which a reasonable 

person would do, under facts similar to those shown by 

the evidence. The law does not say how a reasonable 

person would act under facts similar to those shown by 

evidence. That is for you to decide. 

Jury Instruction No. 5; SDPJI 10-01. This Court has previously endorsed the giving 

of this instruction. Kappenman v. Stroh, 2005 SD 96, ¶ 15, 704 NW2d 36, 41. 

[¶36.] When the evidence produced at trial is examined, there are sufficient 

facts to support the jury's verdict. Harmon testified that she saw a line of 

approximately ten cars pulling onto the highway in front of her and some people 

riding horses moving in the same direction as the vehicles. She attempted to pass 

this line of cars as she entered onto the Cheyenne River Bridge. She acknowledged 

that she was not certain about what the vehicles were going to do, and she was 
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aware from her experience as a rancher that sometimes vehicles turn off the 

highway onto approaches that are difficult to see. Harmon also admitted that she 

did not do anything such as honking her horn or flashing her lights to warn the line 

of vehicles that she was passing. 

[¶37.] The majority also asserts that it is undisputed that Harmon was 

traveling between thirty to thirty-five miles per hour as she passed the caravan. 

However, the nature of the accident tends to bring that into question. Harmon's 

vehicle hit Washburn's vehicle with sufficient speed that Harmon's vehicle flipped 

over Washburn's vehicle. The jury was instructed that they "have a right to 

consider the common knowledge possessed by all of you, together with the ordinary 

experiences and observations in your daily affairs of life." Jury Instruction No. 28; 

SDPJI 1-04; Gross v. Connecticut Mutual Life Ins. Co., 361 NW2d 259, 269-70 (SD 

1985). 

[¶38.] It seems highly unlikely that a vehicle traveling thirty-five miles per 

hour and striking another vehicle in a t-bone style accident would flip over the 

vehicle that was struck in the manner testified to by Harmon. It is quite possible 

that the jury rejected Harmon's testimony as to speed because the physical evidence 

of the accident was inconsistent with her version of the events, even without 

contradictory testimony. 

[¶39.] It is also possible that the jury did not believe Harmon's testimony 

regarding damages. Harmon denied having similar back problems prior to the 

accident; however, her testimony was contradicted by her medical records and the 

testimony of Dr. Nelson. The jury was instructed, "If you believe that any witness 
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testifying in this case has knowingly sworn falsely to any material matter in this 

case, then you may reject all of the testimony of the witness." Jury Instruction No. 

26; SDPJI 2-04; State v. Rosales, 302 NW2d 804, 806 (SD 1981). If the jury found 

that Harmon was lying and rejected all of her testimony, then it is not surprising 

that they found for Washburn. It is impossible to determine whether that is what 

happened in this case, but that is precisely the problem with attempting to invade 

the jury room. 

[¶40.] It is prudent to compare the facts of this case with those in Bridge. In 

Bridge, the defendant admitted liability for any of the plaintiff's injuries 

proximately caused by an automobile accident. Bridge, 538 NW2d at 523. The jury 

returned a verdict for the defendant, and the plaintiff moved for judgment 

notwithstanding the verdict or a new trial. Id. This Court affirmed. Id. at 526. In 

doing so, the Court wrote: 

Factually this case is a close call. But the rules for new 

trials and judgments notwithstanding the verdict clearly 

apply to resolve close calls. See Olson v. Judd, 534 NW2d 

850, 852 (SD 1995). If this jury's verdict can be explained 

with reference to the evidence, rather than by juror 

passion, prejudice or mistake of law, then this verdict 

must be affirmed. Miller, 520 NW2d at 272. Viewing the 

evidence in a light most favorable to the verdict, we 

cannot say the jury's award was a result of passion or 

prejudice or that the jury was palpably mistaken on the 

rules of law by which damages in this case are to be 

measured. 

Id. at 525. 

[¶41.] This Court should follow that precedent in this case. As in Bridge, 

there has been no finding of passion, prejudice, or mistake of law. In fact, Harmon 

does not even argue that the jury was instructed improperly on the law. Simply 
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put, Harmon does not agree with the jury's decision. However, it does not matter if 

she agrees with the jury's decision, nor even if we agree with the jury's decision. It 

only matters whether the decision can be supported by a review of the evidence 

most favorable to the verdict, and as discussed above, it can. 

[¶42.] This Court's previous decision in Treib v. Kern, 513 NW2d 908 (1994) 

is also particularly instructive. That case also involved a car accident and the 

accompanying issues of negligence and contributory negligence, and that jury also 

found for the defendant. Id. at 910. The plaintiff appealed the trial court's denial of 

his motions for directed verdict and judgment notwithstanding the verdict, and this 

Court affirmed. Id. 

[¶43.] As in this case, the defendant in Treib violated a statute and was 

negligent per se. Id. at 913. Additionally, the plaintiff was not found to have 

violated a particular statute. However, the trial court found, and this Court agreed, 

that the plaintiff should have realized that he was within the zone of danger and 

either honked to alert the defendant of his presence or taken evasive action. Id. 

This Court went on to say: 

It is for the jury to decide whether [plaintiff] was guilty of 

contributory negligence for failure to use reasonable care 

in discovering the danger and avoiding a collision. 

Winburn v. Vander Vorst, 74 SD 531, 55 NW2d 609 

(1952). A determination supported by evidence will not be 

disturbed even though there are facts which would 

warrant a different conclusion. Rumbolz v. Wipf, 82 SD 

327, 145 NW2d 520 (1966). 

After viewing the evidence in a light most favorable to 

[defendant] and giving him the benefit of all reasonable 

inferences, we conclude that reasonable minds could differ 

as to [plaintiff's] contributory negligence. "[I]t is not the 

function of this court on review to weigh conflicting 
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evidence or to pass upon credibility of witnesses; that task 

lies within the province of the jury." Sharkey v. 

Washington Nat. Ins. Co., 373 NW2d 421, 427 (SD 1985) 

(citing Lukens v. Zavadil, 281 NW2d 78 (SD 1979); Kamp 

Dakota, Inc. v. Salem Lumber Co., Inc., 89 SD 696, 237 

NW2d 180 (1975)). Therefore, the trial court did not abuse 

its discretion in denying the motions for directed verdict 

and judgment notwithstanding the verdict. 

Id. (footnote omitted). 

[¶44.] Just as in Treib, Harmon failed to warn the vehicles that she was 

passing by honking her horn and/or flashing her lights. By attempting to pass ten 

cars on a bridge she also placed herself in a situation where she would not be able to 

take any evasive action in the event of an emergency, even though it was apparent 

that the ten cars were not traveling in a normal fashion and extra caution may be 

required. It was up to the jury to decide if Harmon's actions constituted negligence 

under the unique circumstances of this case, and if so, whether her negligence was 

more than slight in comparison to that of Washburn. 

[¶45.] In summary, there was sufficient evidence presented to create a 

question for the jury. It answered in favor of Washburn. We should not interfere 

with its verdict by directing a verdict for Harmon. 

[¶46.] GILBERTSON, Chief Justice, joins this dissent.