dissenting.
I respectfully dissent. This case should be reversed due to the rulings of the trial court and remanded for a trial to proceed to determine Treib’s damages.
Central to a just determination of this ease is a fair statement of the facts.
A collision occurred on a graveled street in Lemmon, South Dakota. Essentially, Treib drove past Kern’s house, and Kern backed out of his driveway and struck Treib’s pickup. Throughout the trial, the evidence established Kern’s negligence and a directed verdict was granted in favor of Treib.
Treib was driving a freshly painted 1986 Dodge, ¾ ton pickup. As a result of this collision, he claims property damage and damages for alleged permanent injuries. A jury returned a verdict for Kern. Crucial to this verdict, inter alia, was a special interrogatory asking the jury to determine if Kern was the proximate cause of Treib’s injuries. “Yes” was its answer. Treib maintains the verdict is inconsistent with the jury’s answer to this special interrogatory. I agree.
Immediately after this collision, Kern admitted several times “It was my fault.” His wife exited the house and told him he was an “old fool,” that he should not have been driving, and knew he would get into a wreck. A gentleman witnessed the collision scene and watched Kern’s wife exit the house. Excitedly, she told her husband “I told you not to drive. You know your eyesight’s bad. I told you not to do it.” The eyewitness then heard Kern tell his wife ‘Yes, I know it’s my fault. It’s my fault!”
Kern testified, which is binding, that he never saw Treib’s truck until after the collision. His testimony was revealing in that he was backing up, intending to go north on the street (Main Street) he was backing into. He admitted he had poor visibility because he looked through his passenger window and through the windows of his wife’s car for oncoming traffic. To have made such a backup, with an intent to go north, he had to back into the oncoming lane of traffic, i.e., the southbound lane of traffic Treib was traveling in. The Chief of Police of the City of Lemmon investigated the accident. It was no mystery to him as to what caused the accident. On his accident report, Plaintiff’s Exhibit 53, he noted that Treib was driving down the street and Kern backed up and backed into Treib. The Chief of Police reiterated the same at trial. An area on the accident report designated for Treib was marked “zero” for no contributing circumstances. The geophysical facts, i.e., the collision impact and damage resulting therefrom, reveal that Kern’s vehicle approached Treib’s from the rear and struck Treib’s vehicle at an angle. So, the impact was a rearward *918angle collision with damage to the right rear corner (only) of Kern’s vehicle.
Kern should not have prevailed in this lawsuit. He committed several statutory violations. Kern violated SDCL 32-26-14, which provides:
The driver of a vehicle about to enter or cross a public highway from an alley, building, private road or driveway shall yield the right-of-way to all vehicles approaching on such public highway. A violation of this section is a Class 2 Misdemeanor.
Kern had a statutory duty to yield and he failed to do so.
He violated SDCL 32-30-20:
The driver of a vehicle may not back the vehicle unless such movement can be made with safety and without interfering with other traffic. A violation of this section is a Class 2 Misdemeanor.
Kern admitted that he did not see Treib (or his vehicle) before he backed out. He did not see Treib until after the collision, per his own testimony!
Kern also violated SDCL 32-30-21 which provides:
The driver of a vehicle may not back the vehicle upon any shoulder or roadway of any controlled access highway. A violation of this section is a Class 2 Misdemeanor.
When Kern backed out of his driveway into Treib’s lane of traffic, Kern was on the wrong side of the road — facing the wrong direction.
Is there any substantial, credible evidence to sustain the verdict? That is the test. Fajardo v. Cammack, 322 N.W.2d 873 (S.D.1982). It is undisputed that Treib saw a parked vehicle with its engine running. It is also undisputed that Kern’s truck hit the rear of Treib’s truck as it passed Kern’s driveway. To prevent Treib from recovering, the jury had to have found that his negligence was more than slight, as compared to Kern’s negligence. Nugent v. Quam, 82 S.D. 583, 152 N.W.2d 371 (1967). Somehow, the jury has decided that people backing out of driveways can throw caution to the wind. Should an accident occur, the jury has decreed, let the blame fall upon the motorist lawfully in traffic. This Court should not uphold such foolish logic. Read what a respected treatise, 7A Am.Jur.2d Automobiles and Highway Traffic § 876 (1980), advises us:
[M]ore than usual care is required in backing out of a private driveway, and that one backing from private property onto a public highway must use greater care than would be required of one driving along the highway. The operator of a motor vehicle backing onto a public highway or street from private property is under a duty of yielding the right of way in the road or sidewalk to other travelers, must exercise at least reasonable care commensurate with the circumstances to look out for other users of the roadway ..., and must refrain from backing into the public way until he ascertains that such movement may be made with safety. Moreover, one backing a motor vehicle onto a public thoroughfare from private property has the duty to give at least that signal or warning of his intention reasonably required by the circumstances to anyone who may be affected by his movement, or to give warning of his presence in the road after backing into it. (Emphasis supplied mine.)
Deposition testimony reveals that Treib took prescription medicines which could cause drowsiness and fatigue. Treib’s doctor cautioned him against driving while on the medication. The fact that Treib did not heed this advice does not constitute negligence on his behalf. Why? There was absolutely no evidence that the medicine had such effect on him that morning.
Contributory negligence is also connected to the allegation that Treib did not swerve or honk his horn in an attempt to avoid the accident. Treib had the right to assume that Kern would exercise due care and obey the law. Musilek v. Stober, 434 N.W.2d 765 (S.D.1989); Nelson v. McClard, 357 N.W.2d 517 (S.D.1984). Jury instructions 19 and 20 reiterated the same.
By this verdict, the jury has granted the right of way to Kern while penalizing Treib for unfortunately being in the way of a reckless driver. The majority writing has upheld this logic because Treib admitted knowing “that Kern often backed his pickup from the driveway without looking.” This logic should *919remind us of the bumper sticker that reads, “If you don’t like my driving, stay off the sidewalk!”
Because Treib did not swerve or honk before Kern haphazardly backed out of his driveway and slammed into the rear of Treib’s truck does not make him “oblivious to the obvious” as the majority states. See Auto-Owners Ins. Co. v. Transamerica Ins., 357 N.W.2d 519 (S.D.1984). There was no duty for him to honk or swerve, particularly when he had little time to react to a driver suddenly hitting the rear of his vehicle. If any negligence on Treib’s behalf can be imagined, it certainly does not constitute more than slight negligence when compared to Kern’s reckless driving. Estate of He Crow v. Jensen, 494 N.W.2d 186 (S.D.1992). No substantial, credible evidence supports the verdict. Fajardo, 322 N.W.2d at 875. The jury apparently has palpably mistaken the applicable rules of law and the jury instructions. See Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983). This is precisely why the judicial tool to grant a motion for a judgment notwithstanding the verdict exists. Thus, the trial court should have granted said motion. We should reverse and remand for a trial to be held below upon the sole issue of Treib’s damages.