(dissenting).
I agree that the trial court erred in ruling that a bicycle is not a vehicle under settled South Dakota law. SDCL 32-14-1(32); Finch v. Christensen, 84 S.D. 420, 424, 172 N.W.2d 571, 573 (1969). However, I dissent as to the majority’s conclusion that, even though based on an erroneous ruling, the trial court nevertheless reached the correct result in refusing to give a jury instruction based on SDCL 32-26-3.1
The trial court instructed the jury as to SDCL 32-26-1,2 which covers driving on the right hand side of the road except when overtaking and passing another vehicle. SDCL 32-26-3 is the statute which expresses the law when vehicles are proceeding in opposite directions. As the majority notes, “SDCL 32-26-1 and 32-26-3 appear to be inconsistent.” This is because they set forth the law on different driving procedures— overtaking and passing a vehicle proceeding in the same direction as opposed to passing a vehicle proceeding in the opposite direction. Clearly, the statute on passing a vehicle approaching from the opposite direction was pertinent in this case. The jury simply was not properly instructed as to the applicable law in South Dakota.
The trial court denied an instruction on SDCL 32-26-3 for two reasons; first, its erroneous finding that a bicycle was not a vehicle and, second, its concern that the instruction might have confused the jury.
THE COURT: Your objection’s denied. And I may say also is incomplete because it does not define main traveled portion which is all of the roadway that is available for travel. It does not include thé right-of-way. It would be confusing to this jury because they could look at the business of the perceived center of the road as opposed to the real center of the road, and that would make it confusing and misleading. In the form submitted, it’s confusing, misleading. And it’s denied.
*745I agree with the trial judge that the jury could have been confused by what was meant by the main traveled portion of the road. However, the solution to potential confusion was to give an additional instruction defining the term, not to refuse an instruction on the only South Dakota statute dealing with passing an oncoming vehicle.
Second, the majority opinion seems to require that before an instruction on SDCL 32-26-3 may be given, a trial court must find that one-half the main traveled portion of the roadway is somehow different from half of the geographic roadway or find that some portion of the roadway was impassible. The opinion then cites cases in which this court defined the “traveled” or “main-traveled portion” of the roadway. See, e.g., Zakrzewski v. Hyronimus, 81 S.D. 428, 136 N.W.2d 672 (1965); Schnabel v. Kafer, 39 S.D. 70, 162 N.W. 936 (1917). While I have no objection to clarifying a potentially confusing term for the jury, I do object to adding a requirement that the trial court find the main traveled portion of the roadway somehow differs from the geographic half of the roadway before giving an instruction on a statute which deals with passing oncoming traffic. The statute clearly contains no such condition and I dissent as to the creation of such a requirement.
It is well-settled law in this jurisdiction that failure to give a requested jury instruction setting forth the applicable law constitutes not only error, but prejudicial error. Dartt v. Berghorst, 484 N.W.2d 891 (S.D.1992); Schelske v. South Dakota Poultry Coop, 465 N.W.2d 187 (S.D.1991); Kreager v. Blomstrom Oil Co., 379 N.W.2d 307 (S.D. 1985); Rosenberg v. Mosher, 331 N.W.2d 79 (S.D.1983); Atyeo v. Paulsen, 319 N.W.2d 164 (S.D.1982); Wolf v. Graber, 303 N.W.2d 364 (S.D.1981); Jahnig v. Coisman, 283 N.W.2d 557 (S.D.1979). As characterized by Justice Henderson, “ ‘Prejudicial error’ is not vacuous, vague or vaporous. It has a well-settled meaning in this state. ‘Prejudicial error’ is that which in all probability must have produced some effect upon the final result and affected rights of the party assigning it.” State v. Devine, 372 N.W.2d 132, 141 (S.D.1985) (Henderson, J., dissenting). “These bad instructions, in all probability, had some effect upon the final result and affected Darrow’s rights.” Darrow v. Schumacher, 495 N.W.2d 511, 524 (S.D.1993) (Henderson, J., dissenting). Similarly, the refusal to give a jury instruction on the applicable statutory law was prejudicial error which effected Grevlos’ rights and requires reversal of the judgment and remand for a new trial with a properly instructed jury.
. SDCL 32-26-3 provides:
Drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other at least one-half of the main-traveled portion of the roadway as nearly as possible. A violation of this section is a Class 2 misdemeanor.
. SDCL 32-26-1 provides:
Upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive the same upon the right half of the highway and shall drive a slow-moving vehicle as closely as possible to the right-hand edge or curb of such highway, unless it is impracticable to travel on such side of the highway and except when overtaking and passing another vehicle subject to the limitations applicable in overtaking and passing set forth in §§ 32-26-26 to 32-26-39, inclusive. A violation of this section is a Class 2 misdemeanor.