(concurring in part and dissenting in part).
I agree that we should affirm the trial court on granting Dartt a new trial for the reason that Berghorst had the burden of proving legal excuse for violation of any safety statute. We should also affirm, rather than reverse, the trial court’s denial of Dartt’s motion for judgment notwithstanding the verdict (J.N.O.V.).
It seems to me that the majority is violating the very rules that it espouses, i.e.:
(1) “Looking toward the event rather than [hindsight] ... ”,
(2) “Viewing the evidence in a light most favorable to the non-moving party (Ber-ghorst) ...” and,
(3) “[I]f there is sufficient evidence to allow reasonable minds to differ, the denial of the motion [for J.N.O.V.] was correct and appropriate. Haggar v. Olfert, 387 N.W.2d 45, 49 (S.D.1986); Herren, 454 N.W.2d at 541.”
Here, any statutory violations occurred after Berghorst drove into the whiteout of the snow cloud. Since the burden of proving legal excuse is now properly upon Ber-ghorst, whether he meets this burden is for the jury. Reasonable minds can differ as to whether Berghorst could proceed as did the other traffic or wait indefinitely behind the snowplow. See Herren, 454 N.W.2d at 541; Haggar, 387 N.W.2d at 49. Directing a verdict from • r appellate perch denies a jury trial on thv. real issue in this case and unduly tinkers with the evidence as viewed by the trial court. We should not direct a verdict on liability. We should let all of the trial court’s rulings stand.
AMUNDSON, J., joins this special writing.