dissenting.
This appears to be a simple case. Plaintiff was driving past Defendant’s residence and driveway when his vehicle was struck from behind in the right rear-end by Defendant’s vehicle. Plaintiff was in the proper lane traveling at a proper speed. Defendant committed numerous violations, as detailed in Justice Henderson’s dissent, by improperly backing out of his driveway without looking or determining that it could be done in safety, into the wrong lane and striking Plaintiffs passing vehicle. Despite these facts, the jury found Plaintiffs negligence was more than slight when compared to that of Defendant.
Under SDCL § 15-6-59(a)(6), a verdict may and should be set aside when the jury draws from conflicting evidence inferences that reason cannot support in light of other evidentiary facts proven or when it is against the law. The trial court has broad discretionary power in granting or denying a motion for a new trial and, generally, that order will not be disturbed absent a clear showing of abuse of discretion. However, if an injustice has been done by the jury’s verdict, the remedy lies in granting a new trial.
Hepper v. Triple U Enter., Inc., 388 N.W.2d 525, 530-31 (S.D.1986) (citations omitted). See Freeman v. Berg, 482 N.W.2d 32, 35 (S.D.1992) (citation omitted) (“A new trial should not be granted on the basis of insufficient evidence unless the finding of the jury on a question of fact is ‘unreasonable, arbitrary, and unsupported by the evidence.’ ”).
Is there sufficient evidence to justify the verdict that Plaintiffs negligence was more than slight when compared to that of Defendant? I don’t think so. SDCL 15-6-59(a)(6); Hepper, 388 N.W.2d 525 (concluding that the jury was presented with insufficient evidence to support the verdict and establish reasonable damages).
The fact that Plaintiff thought he made it as he passed Defendant’s driveway is not evidence of negligence or of negligence “more than slight” when compared to that of Defendant. Nor is being “aware of Defendant’s tendency to back out of his driveway without looking.” One must do something wrong. What evasive action could Plaintiff have taken to avoid this accident — unless he could somehow cause his vehicle to evaporate in thin air.
In view of this record, there is insufficient evidence to justify the verdict that Plaintiffs negligence was more than slight when compared to that of Defendant. SDCL 15-6-59(a)(6). I conclude that the jury’s findings were unreasonable, arbitrary, and unsupported by the evidence and therefore, the trial court abused its discretion in not granting judgment notwithstanding the verdict or a new trial. Id.; Hepper, 388 N.W.2d at 531 (concluding that trial court clearly abused its discretion in denying a motion for new trial). Compare Freeman, 482 N.W.2d at 35-36 (concluding that based on the evidence of contributory negligence presented at trial, the court could not “conclude that the jury’s findings were so unreasonable, arbitrary, and *920unsupported by the evidence that the trial court clearly abused its discretion in failing to award a new trial”).