[¶ 1.] Abdelaziz Baddou (Baddou) filed suit against Carla Jean Hall (Hall) alleging negligence arising out of an accident in which Hall’s vehicle struck the rear end of Baddou’s vehicle. The case was tried to a jury which found no negligence. Baddou appeals from an order denying his motion for judgment as a matter of law and his motion for new trial. We affirm.
FACTS AND PROCEDURAL HISTORY
[¶ 2.] On January 21, 2004, Baddou was driving south on Elm Street in Rapid City, South Dakota. Elm Street is a two lane road with no turn lanes. Baddou activated his left turn signal and stopped while waiting for the oncoming traffic to clear. Before he could turn left, Baddou was struck from behind by Hall’s vehicle.
[¶ 3.] Hall testified that she had been following Baddou’s vehicle for approxi
[¶ 4.] The accident investigator from the Rapid City Police Department made a notation on his report indicating “Fault: driver 1-rear ended legally stopped veh. [sic] waiting to turn.” However, the officer did not issue a ticket to either driver. The larger box in the report which asks the officer “Citation Charge?” was left blank and the small interior “No” box was checked with an “X.”
[¶ 5.] Hall filed a pretrial motion in limine to keep out the officer’s notation of “Fault: driver 1.... ” The motion was granted and the “fault” quote was redacted from the report. Hall also filed a motion to preclude the mention of the issuance or non-issuance of a citation, but withdrew the motion at hearing. The court considered that motion moot because no citation was issued against either driver.
[¶ 6.] During trial, Baddou offered the accident report as redacted. Notably, Baddou’s exhibit still contained the empty citation box with the “No” marked with an “X.” During closing argument, Hall’s attorney commented on Baddou’s exhibit and its absence of any citation by the officer against Hall. Baddou timely objected. The court overruled the objection stating that “[t]he exhibit is in evidence and whatever the exhibit says is certainly available to the jury to consider.” A few moments later at the conclusion of Hall’s closing argument, Baddou renewed the motion and argued at the bench on the record. The court reconsidered and gave an oral curative instruction:
The issue comes up with the question of whether or not a citation was issued. I don’t have the officer here. The record would indicate from the ticket — from the report that no citation was given. I believe counsel would confirm that.
I would tell you, and advise you, that the issuance or non-issuance of a citation by the officer on the scene does not establish either the presence of negligence by the issuance of a citation nor the absence of negligence by the nonissue of a ticket or citation. Those matters are separate and distinct from, much like the insurance I mentioned earlier. It’s not relevant. What the officer thought or didn’t think or what the officer did then or did later, if anything.
The question is for you, would a reasonable person under those circumstances have acted in the way that the parties did. Your decision on that matter controls the outcome. Not whether an officer issued a citation or not.
[¶ 7.] In its final jury instructions, the court also instructed the jury that arguments of counsel were not evidence. Bad-dou’s motion for new trial based upon the comments by Hall’s attorney during closing argument was denied.
[¶ 8.] The jury found no negligence on the part of Hall. Thereafter Baddou filed a motion for judgment as a matter of law. Baddou claimed that Hall’s actions were negligence per se. The court denied the motion and stated that whether or not Hall had been following too closely was a fact question for the jury.
[¶ 10.] Baddou’s issues on appeal are: Whether Baddou was entitled to judgment as a matter of law based upon a claim of negligence per se.
Whether sufficient evidence existed to support the jury verdict for Hall. Whether Baddou is entitled to a new trial based upon Hall’s closing argument.
Whether Baddou is entitled to a new trial based upon the court’s refusal to instruct the jury on lost earning capacity-
STANDARD OF REVIEW
[1,2] [¶ 11.] We review the court’s denial of a motion for directed verdict under the abuse of discretion standard.
Christenson v. Bergeson,
[¶ 12.] Denial of a motion for new trial is reviewed under the abuse of discretion standard.
Bridgewater Quality Meats, L.L.C. v. Heim,
[¶ 13.] As for claims of insufficient evidence, the trial court has broad discretion on whether to grant a new trial. We examine the evidence in a light most favorable to the verdict. The prevailing party benefits from all reasonable inferences. If there is competent evidence to
[¶ 14.] “While other jurisdictions have adopted a presumption of negligence in rear-end accidents, we have so far declined to do so.”
Steffen v. Schwan’s Sales Enterprises, Inc.,
[¶ 15.] With regard to curative instructions, we presume that juries understand and abide by instructions.
First National Bank of Minneapolis v. Kehn Ranch, Inc.,
[¶ 16.] Instructions to the jury must be based upon evidence adduced and issues raised at the trial.
State v. Johnson,
ANALYSIS AND DECISION
ISSUE ONE
[¶ 17.] Whether Baddou was entitled to judgment as a matter of law, based upon a claim of negligence per se.
[¶ 18.] Baddou claims that the evidence was “undisputed” that Hall violated a safety statute, SDCL 32-26-40, which provides:
The driver of a motor vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and condition of the highway. A violation of this section is a Class 2 misdemeanor, (emphasis added).
Baddou argues that we have previously adopted a per se rule in connection with rear-end accidents, or collisions with a stationary object in its rightful place.
[¶ 19.] Baddou cites several cases in support of his per se argument. In
Dartt v. Berghorst,
this Court held that “violation of a safety statute is negligence as a matter of law unless it is legally excused.”
[¶ 20.] Under such circumstances a judge would direct a verdict for the injured plaintiff, unless legal excuse was shown. “Pleading guilty to such a violation does not conclusively establish the violation, but constitutes an admission against interest.”
Dartt,
[¶ 21.] Baddou also cites
McDonnel v. Lakings,
[¶ 22.] Baddou also points to
Klarenbeek v. Campbell,
[¶23.] Baddou also directs our attention to
Weber,
In McDonnel, however, the evidence clearly established that the road surface was dry; moreover, the defendant in that case admitted that he was following the plaintiffs car too closely. In the case before us, on the other hand, defendant, if his testimony and that of his witnesses is believed, was suddenly faced with unexpectedly slippery conditions upon reaching the exit ramp. It was for the jury to resolve the conflict in the testimony regarding weather and road conditions. If believed, defendant’s evidence on this issue was sufficient to absolve him or liability for the collision, for whether a driver meets conditions as an ordinarily prudent man would under similar circumstances is generally for the jury to determine.
Weber,
[¶ 24.] After the instant case was submitted to the Court, we issued an opinion
[¶25.] Thus, by her own admission, Washburn violated the statutory safety mandate, which constituted negligence per se. We reversed the jury’s verdict for entry of judgment in favor of Harmon. “Only in exceptional cases may the verdict be directed in favor of the party having the burden of proof.”
Christenson,
[¶ 26.] In the present case, Hall never admitted that she was following Baddou too closely. She claimed that her action in momentarily turning to view nearby children was reasonable and prudent under the circumstances. The jury may well have had additional reasons to find for Hall, but at no time during the evidence was any admission made regarding the violation of a safety statute.
[¶ 27.] Baddou’s reliance upon these cases for an absolute rule that any rear end collision is negligence per se is misplaced. Where the defendant admits a violation of a safety statute, negligence per se is established and the issue of liability should not be submitted to the jury. However, where the defendant has legitimately raised the issue of reasonableness, juries are best equipped to resolve the conflicts. We, therefore, continue to decline to adopt a strict rule or presumption of negligence in cases involving rear end collisions.
See Steffen,
[¶ 28.] In this case, the evidence at trial demonstrated that Hall was traveling at or below the speed limit. As Hall and the vehicle ahead of her driven by Baddou entered a school area, Hall slowed somewhat. At some point Hall looked left at some children on the sidewalk to make sure they were not crossing into her path. When Hall looked back at the road, she realized that Baddou had stopped to turn. Hall slammed on her brakes and veered right, striking the right rear bumper of Baddou’s vehicle. Hall admitted that if she had never looked at the children, she could have avoided the accident. However, Hall did not admit a violation of the statute or that she had been “following too closely.” There was no testimony regarding a safe following distance for vehicles at this speed. Hall thought she was “probably” a car length behind Baddou prior to the accident. No other witnesses testified that Hall was closer or further away.
[¶ 29.] Baddou testified that he never noticed Hall’s vehicle following him, despite Hall’s admission that she had followed him for three blocks. The jury may have inferred that if Hall was too close, Baddou would have noticed Hall in his rear view mirror. “[C]redibility is for the jury to decide.”
Artz v. Meyers,
[IT 30.] Viewing the evidence in the light most favorable to Hall, as we must, we cannot agree with Baddou’s claim that Hall’s acts constituted such obvious negligence per se as to justify taking the case away from the jury. “[Ijssues of negligence, contributory negligence, and proximate cause are ordinarily questions of fact and it must be a
clear
case before a trial judge is justified in taking these issues from the jury.”
Steffen,
[¶ 31.] Finally, the jury was well aware that Hall was duty bound to have “due regard for the speed of such vehicles and the traffic upon and condition of the highway.” SDCL 32-26^10. It may have considered Hall’s concern, that children were about to become part of that traffic, as an event worthy of her momentary “due regard.” Reasonable minds may differ, but we must resolve doubts in favor of the jury verdict.
ISSUE TWO
[¶ 32.] Whether sufficient evidence existed to support the jury verdict for Hall.
[¶ 33.] A trial court has broad discretion in ruling upon a motion for new trial based upon a claim of insufficient evidence. All inferences are indulged in favor of the nonmoving party; if competent evidence exists to support the verdict, it will be upheld.
Rogen,
ISSUE THREE
[¶ 34.] Whether Baddou is entitled to a new trial based upon Hall’s closing argument.
[¶ 35.] During closing argument, Hall’s attorney commented upon the fact that the police report Baddou placed into evidence demonstrated that the officer at the scene had not issued a citation to either driver. The trial judge originally overruled Baddou’s timely objection, but after Hall concluded her argument the matter was revisited at the bench. The judge reconsidered and then immediately gave a curative instruction.
[¶ 36.] As we reaffirmed above in Issue Two, the issuance or non-issuance of a police citation has no bearing upon a case of disputed negligence other than as one piece of evidence for the jury’s consideration.
See supra
¶ 20. Juries are presumed to understand and abide court instructions.
Kehn Ranch, Inc.,
[¶ 37.] In the instant case, the trial judge promptly corrected the problem presented by the comment made during closing argument by Hall’s counsel with a curative instruction, which clearly addressed the problem. Additionally, at the end of closing argument, the court further instructed the jury that the arguments of counsel were not to be considered as evidence. We believe the curative instruction and the pattern jury instruction on arguments of counsel, taken together, acted to cleanse the record of any alleged taint by the remarks of Hall’s attorney during closing argument. We must presume that the jury heard and obeyed these instructions.
See Fjerstad,
ISSUE FOUR
[¶ 38.] Whether Baddou is entitled to a new trial based upon the trial court’s refusal to instruct the jury on the claimed issue of lost earning capacity.
[¶ 39.] As we have noted above, the general jury verdict found no negligence on the part of defendant Hall. We need not address which instructions should have been given on damages claims.
[¶ 40.] Baddou has failed to show the circuit court committed any error, much less the required prejudicial error necessary to warrant a reversal on appeal. The order denying Baddou’s motion for directed verdict and motion for new trial is affirmed.