(dissenting).
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO INSTRUCT THE JURY THAT DEFENDANT GANTVOORT HAD A DUTY TO SEE WHAT WAS THERE TO BE SEEN.
Under the evidence in this case, the jury could conclude that Gantvoort could have seen Herren’s vehicle some 1,200 feet before he did. Since Gantvoort claims he did not apply his brakes until he was within 140 feet of Herren’s vehicle — too late to stop because of the icy road — it was crucial for the jury to be properly instructed that Gantvoort had a duty to see what was there to be seen (and was bound by same whether he saw anything or not). Anderson v. Adamson, 79 S.D. 429, 112 N.W.2d 612 (1962); Flanagan v. Slattery, 74 S.D. 92, 49 N.W.2d 27 (1951).
Under the circumstances of this case, it was clearly prejudicial to refuse to give said instruction. Contrary to the statement in the majority opinion, Herren’s proposed instruction was not “embodied in other given instructions” and it is likely that the jury would have returned a different verdict if Herren’s proposed instruction had been given because the emphasis on Gantvoort’s conduct would have been substantially different. The undeniable fact is that Gantvoort struck Herren’s vehicle even though he could have seen it some 1,500 feet earlier. The jury should have been instructed that Gantvoort was responsible as though he had seen the vehicle earlier.