(concurring in part and dissenting in part).
Although “a judicial mind could reasonably reach” the same conclusion as the trial court on Issues One, Two, and Three, it does not necessarily follow that “the trial court exercised proper discretion” in doing so. Generally, the law should favor the admission of evidence in this type of case. In fact, admission of this evidence would have been a better exercise of discretion.
On Issue Four, I believe the trial court erred in excluding Sommervold’s photo of the black mark in the road and the accompanying testimony. This may very well be the “best” evidence as to “point of impact,” the key factor in this entire lawsuit. Certainly, the jury could decide, based on all the evidence, whether this evidence should be accepted or rejected as controlling.
On Issue Five, I join Chief Justice Miller’s dissent.
On Issue Six, I believe the trial court erred in refusing Grevlos’ requested instructions on *744proper lookout. See my dissent in Herren v. Gantvoort, 454 N.W.2d 539, 543 (S.D.1990). It was crucial for the jury to be properly instructed that Sommervold had a duty to see what was there to be seen (and was bound by same whether he saw anything or not). Id. (citations omitted). It is not enough for the trial court to simply highlight that Grevlos claimed Sommervold failed to keep a proper lookout—a proper instruction was required.
The trial court’s ruling on Issue Seven appears correct even though it is contrary to the majority opinion in Stevens v. Wood Sawmill, Inc. 426 N.W.2d 13, 14-17 (S.D.1988) (“As a general rule, ‘where a particular statutory or regulatory standard is enacted to protect persons in the plaintiffs position or to prevent the type of accident that occurred, and the plaintiff can establish his relationship to the statute, [an] unexplained violation of that standard renders the defendant negligent as a matter of law.”').
Finally, the majority opinion concludes with the statement:
If this case were tried one hundred times, Grevlos would still be on the wrong side of the road and Sommervold would still not have a light. In all probability, the jury would reach the same conclusion every time.
That statement misses the mark because, even if it were true, it is neither the point nor the test. The parties are entitled to a reasonably fair trial with a properly instructed jury. These parties had neither and are entitled to a new trial.