Deskins v. T. H. Nichols Line Contractor, Inc.

STEPHENSON, J.,

dissenting.

I respectfully dissent.

As I read its opinion, the majority does not hold that the evidence is insufficient to establish that Fuller was negligent. Instead, the majority holds that Deskins was contributorially negligent as a matter of law. I do not agree.

The majority correctly notes that before entering the highway “Deskins brought his motorcycle to a stop and looked first to his left [the direction from which Fuller approached], then to his right, and back to his left. Seeing nothing approaching from either direction, he pulled onto the highway.”

I fail to see how such conduct can constitute negligence as a matter of law. What more could Deskins have done? Indeed, if the majority’s position is correct, no one could enter the highway from Mrs. Hyatt’s driveway without being negligent as a matter of law.

Because I conclude that negligence, contributory negligence, and proximate cause were properly submitted to the jury, I would hold that the trial court erred in setting aside the verdict. Accordingly, I would reverse the trial court’s judgment, reinstate the verdict, and enter final judgment for Deskins.