[¶ 1.] While speeding to approach and “pace” two motorcycles, a city police officer struck and injured a motorist who was turning at an intersection. Following a trial for negligence against both the city and its officer, the jury found for the motorist. The defendants appeal, contending the motorist was contributorily negligent as a matter of law and the trial court erred in denying their motions for summary judgment, directed verdict, judgment notwithstanding the verdict, and new trial. We affirm, as the issues of negligence were properly left for the jury.
Facts
[¶ 2.] This two-car automobile collision occurred on March 26, 1993, in Belle Fourche, South Dakota. We relate the incident in a light most favorable to the verdict.
Alberts v. Mutual Serv. Cas. Ins. Co.,
[¶ 3.] Meanwhile, Keith Carpenter drove west on Summit Street, approaching the intersection of Highway 85 north of where Wainman had entered the highway. Tammy Halvorsen, the owner of the car Keith was driving, was a passenger. Keith had been repairing the wiring in Halvorsen’s car, a 1981 Chevrolet Chevette, and was taking it to his home to complete the work. Keith’s wife, Sherri, was driving the Carpenters’ car directly behind them. When Keith reached the intersection, he brought the car to a complete stop, but the evidence conflicts on whether he checked for traffic before pulling into the intersection. Keith testified during his deposition taken two years before trial that he had no recollection of looking either right or left before he pulled out, but that he had waited at the intersection for traffic to go by. At trial, Keith testified that he looked to the right, to the left, and then back to the right before proceeding. Sherri also testified at trial that as she sat in the ear behind him she saw Keith look in both directions.
[¶ 4.] Keith began turning left onto Highway 85, headed toward the southbound lanes. Officer Wainman was approximately 500 feet away. When he spotted Keith pulling out, he attempted to avoid a collision by braking and swerving left into the inside lane, but in vain. Wain-man’s patrol car skidded 100 feet, then slammed into the driver’s side door of the Chevette, just as its front wheels crossed the centerline of the four-lane highway. The Chevette came to rest in the middle of the highway, 100 feet north of the point of impact. The patrol car slid off the road on the southbound side, became airborne, and then landed in the ditch. Both cars were destroyed. Keith was severely injured. He was transported by air ambulance to a trauma unit in Billings, Montana. 1
[¶ 5.] The Carpenters sued the City of Belle Fourche and its employee, Officer Wainman. In turn, these defendants sued the two motorcyclists for contribution, but later dismissed the claim with prejudice. The circuit court denied the defendants’ *756 motions for summary judgment. Following a weeklong trial, a jury returned a verdict for the Carpenters, awarding Keith $450,000, and Sherri $22,000. Motions for judgment n.o.v. and new trial were denied. On appeal, the defendants assert that the trial court erred in denying (1) their motion for summary judgment, (2) their motions for mistrial and for a new trial based on the use of an unsworn statement during trial, (8) their motions for a mistrial and for a new trial based on a reference made to their dismissal of the motorcyclists, (4) their motions for directed verdict and for a judgment n.o.v. on the issue of liability, and (5) their proposed jury instructions. For clarity, we combine in Part A below the contributory negligence arguments in Issues 1 and 4.
Standard of Review
[¶ 6.] “Under our familiar standard for reviewing summary judgments, we decide only whether genuine issues of material fact existed and whether the law was correctly applied.”
Kobbeman v. Oleson,
[¶ 7.] A new trial motion rests within sound judicial discretion of the court, and we will not disturb the judge’s decision absent an abuse of discretion.
Schmidt v. Royer,
Analysis and Decision
A. Contributory Negligence as a Matter of Law
[¶ 8.] Under the “through highway” or “boulevard” rule, as it is sometimes called, a driver approaching an intersection from an unfavored road must yield the right-of-way to drivers on the “through highway” (SDCL 32-29-2) already in or approaching the intersection. See
Davis v. Knippling,
[¶ 9.] Contributory negligence issues have been taken from the jury when the evidence appeared indisputable. In
McKiver v. Theo. Hamm Brewing Co.,
[¶ 10.] Four years after McKiver, this Court again ruled as a matter of law that the unfavored driver was guilty of contributory negligence more than slight because it was that driver’s “duty to stop and to make, before and after entering the intersection, observations and to adapt his movements to accord with his own safety.”
Kundert v. B.F. Goodrich Co.,
[¶ 11.] As
McKiver
and
Kun-dert
illustrate, an unfavored driver’s duty to stop and yield the right-of-way is unqualified.
4
Indeed, we have repeatedly held that a motorist who enters an intersection from an unfavored road and fails to yield to a favored vehicle under the rules of the road is guilty of negligence as a matter of law.
Robertson v. Hennrich,
[¶ 12.] On the other hand, the right of way on a through highway is not absolute. Favored drivers, though they have the primary right of way, must use reasonable care with due regard for the safety of others.
Burmeister v. Young-strom,
[¶ 13.] Exceeding the speed limit at an intersection will not automatically forfeit the right-of-way. Cf.
Sabo v. Beatty,
*759
[¶ 14.] An intersectional collision is not proof by itself that fault lies with the unfavored driver. As we have often recognized, the mere fact that an accident happened creates no inference that it was caused by someone’s negligence.
Del Vecchio v. Lund,
[¶ 15.] We perceive a distinction between unfavored drivers who do not look or look but fail to see, and those drivers who look before entering an intersection, but misgauge the safety of the maneuver because they believe they have enough time to cross or they are misled about the speed or distance of an approaching vehicle.
See McKiver,
[¶ 16.] From the host of cases this Court has reviewed in the last century, we encapsulate the following rule: the mere occurrence of an accident in a protected intersection will not of itself establish negligence against the unfavored driver. Whether one looked and failed to see a vehicle within the zone of danger is a jury question, except in those rare instances when the evidence is so definite that reasonable minds could not differ. Before a court may declare contributory negligence more than slight as a matter of law, the location of the oncoming vehicle must have been in an obviously favored position within the radius of danger; otherwise, the question is one for the jury.
[¶ 17.] Although Keith Carpenter testified in his deposition that he did not remember clearly if he looked both ways before pulling away from the stop sign, he also testified that he waited at the stop sign for traffic from both directions. From that the jury could have inferred that he looked. At trial, he told the jury he did look both ways. The jurors must have believed him despite his shift in recollection. Tammy Halverson’s testimony that she looked and did not see Officer Wainman’s car approaching was also a factor for consideration. The Carpenters’ expert witness testified that Wainman was going over 60 m.p.h. in the 45 m.p.h. zone just before the collision. The jury heard expert opinion on the difficulty of assessing speed and distance of oncoming vehicles. Jurors might have concluded that Keith looked down the road, but erroneously thought there was time to cross the highway. Officer Wainman’s excessive speed may have contributed to Keith’s misjudgment.
See Krcmar v. Reichert,
B. Use of Unsworn Statement
[¶ 18.] Sherri Carpenter testified on direct examination that as Keith began to pull away from the stop sign, she did not see any automobiles other than a white pickup approaching the intersection from the south. Her counsel then asked her if she had given a statement to the police the evening of the accident. At this point, the matter was discussed with the court outside the hearing of the jury. When questioning before the jury continued, the Carpenters’ counsel was allowed to show Sherri a copy of the unsworn statement she had given to law enforcement shortly after the accident occurred. Sherri was then asked again to tell the jury, without reading the statement, whether she had seen any other vehicles coming north on the road. She said that she had seen Officer Wainman’s patrol car going fast and passing the pickup when it was still about one quarter of a mile away.
[¶ 19.] The defendants argue that her statement was not admissible as a memorandum of past recollection recorded under SDCL 19-16-9 (Rule 803(5)), that it could not be used to refresh her memory under SDCL 19-14-21 (Rule 612(a)) because her recollection was initially clear, and finally that the unsworn statement could not be used to impeach Sherri because doing so would simply be a subterfuge for bringing in the inadmissible statement. Her testimony after refreshing her recollection was consistent with the testimony she gave in her deposition.
[¶ 20.] The document shown to Sherri was neither entered into evidence nor read to the jury. It was used only to trigger Sherri’s memory, calling into play SDCL 19-14-21 (Rule 612(a)). SDCL §§ 19-14-21 through 19-14-23 provide for the method of refreshing witness recollection called present recollection refreshed. John W. Larson, South Dakota Evidence § 612.1 at 438 (1991). This “involves the use of anything that will actually trigger the witness’ memory so that the witness may thereafter actually testify from memory. Anything that will cause the memory to be regained, ... is permitted. This includes, of course, showing the witness a particular writing, ...” Id. Counsel laid the minimal foundation for the testimony: Sherri said she did not have a clear recollection of what happened, that she had given a statement at the time of the accident, and that this writing would help refresh her recollection. She read the statement silently to herself, and then testified that she had seen the patrol car some distance back from the intersection. See id. at 439. Sherri was cross-examined on this testimony as well.
[¶ 21.] The defendants argue that this testimony had a prejudicial impact, preventing them from receiving a fair trial. “Prejudicial error is that error without which the jury would have probably returned a different verdict.”
Shaull v. Hart,
C. Referring to Dismissal of Third-Party Defendants
[¶ 22.] During Officer Wainman’s cross-examination at trial, the Carpenters’ counsel asked him whether he was trying to blame the accident on the motorcyclists he attempted to “pace” although they had been dismissed from the action. The judge admonished the jurors to disregard the remark, and during a hearing out of the jurors’ presence the judge offered to again admonish them, stating that he found the remark on the dismissal of the third-party defendants “highly improper.” Nonetheless, the court denied defense motions for a mistrial and a new trial. The defendants argue now that the question, though not answered, was prejudicial. They claim that the cautionary instruction given by the judge did not “cure” the error.
[¶ 23.] Our rule on harmless error is found in SDCL 15-6-61:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
“Prejudicial error is error which in all probability produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it.”
Kjerstad v. Ravellette Publications Inc.,
[¶ 24.] Unlike the situation in
Kjerstad,
D. Trial Testimony Contradicting Deposition
[¶ 25.] The defendants next contend it was error for the trial court to deny their motions for directed verdict and for judgment notwithstanding the verdict when Keith Carpenter’s testimony at trial
*762
was contrary to his deposition testimony concerning whether he looked left before he pulled away from the stop sign. They argue that in his deposition, Keith testified that he did not have a specific recollection of looking left before turning onto the highway, but at trial he recalled that he had looked in both directions but did not remember whether he saw any vehicles on the road. As the law disallows a change in testimony to defeat a motion for summary judgment, the defendants argue, so too should it disallow a change in testimony to defeat a directed verdict. The defendants asked the trial court to apply by analogy
Guilford v. Northwestern Public Service,
[¶ 26.] The defendants’ argument is unpersuasive.
Taggart
employed the rule to prevent sham issues from being interjected to sidetrack otherwise meritorious summary judgments. The rule is no substitute for the traditional courtroom tests of credibility. It applies only “when there was no explanation for the change in testimony from the deposition to the affidavit” submitted to oppose summary judgment.
Taggart,
E. Refusal of Defendants’ Proposed Jury Instructions
[¶ 27.] The defendants argue that the trial court erred when it refused ten of their proposed jury instructions. The defendants have the burden of showing prejudicial error, establishing that under the evidence, the jury would probably have returned a different verdict if the proposed instructions had been given.
Ryken v. Blumer,
1. Definition of the Word “Slight”
[¶ 28.] The trial court gave the South Dakota pattern instruction on contributory negligence. The defendants contend that this instruction does not define the term “slight” correctly. In their proposed instruction four, citing
Wood v. City of Crooks,
2. Failure to See Oncoming Vehicle
[¶ 29.] Next, the defendants argue it was error to deny their proposed instruction number five that would have instructed the jury that if drivers look in the direction of an approaching vehicle, they are charged with having seen it. The Carpenters counter that the instructions given, when considered as a whole, correctly stated the law on keeping a proper lookout. While none of the instructions specifically inform the jury that individuals are considered to have seen an oncoming vehicle in the direction they look, the instructions do state that drivers have the duty to keep a lookout that ordinarily prudent persons would keep, and that failure to yield to approaching traffic that they could have seen is negligence. The defendants’ proposed instruction might have been helpful to the jury on the issue of Keith Carpenter’s contributory negligence had it decided that Wainman was in the radius of danger, but the instructions as given correctly stated the law. As the defendants do not show how they were prejudiced by having their proposed instruction denied, the trial court did not err.
3.“Pacing” as Lawful Police Activity
[¶ 30.] The trial court gave instruction number nineteen, which informed the jury that speed limits do not apply to authorized vehicles measuring the speed of another vehicle by “pacing” that vehicle; however, it must be done “with due regard for the safety of all persons.” See SDCL 32-31^4. It stated also that the failure to follow this standard of care is negligence. The defendants argue it was error for the trial court to refuse to include an additional paragraph, as drafted in their proposed instruction number seven, that would have informed the jury that this statute takes precedence over any City of Belle Fourche ordinance or policy prohibiting pacing. They claim this language should have been included because testimony elicited from a former City council member suggested that the City’s pursuit policy did not allow pacing. After reviewing this testimony, we think the defendants misread its import. The testimony merely revealed that the City’s policy does not mention the practice of pacing. This is not a basis for including the requested language in the instruction. The trial court did not err.
4.Sudden Emergency Doctrine
[¶ 31.] The defendants’ proposed instruction number eleven explained the sudden emergency doctrine. They believe it should have been given because the Carpenters’ expert testified that Wainman should have turned his patrol car to his right to avoid the accident, allowing him to pass behind Keith’s vehicle. They argue that because there was another course of action available after the dangerous situation was perceived, the instruction was necessary.
[¶ 32.] In
Meyer v. Johnson,
*764 Although we believe unavoidable accident instructions should be restrictively used we do not favor ... total exclusion. In the ordinary negligence action the jury is adequately instructed on the ultimate issues by instructions on negligence, contributory negligence, burden of proof, and proximate cause. Further instruction on unavoidable accident usually is unnecessary. Such instruction may properly be given in those cases where there is evidence that something other than the negligence of one of the parties caused the mishap. It is particularly apt where the further element of “surprise” is present such as the sudden and unexpected presence of ice, the blow-out of a tire, the malfunction of brakes, or other mechanical failure.
Id.
at 110 (omission in original) (emphasis added) (quoting
Cordell v. Scott,
5. Assumption of Risk Doctrine
[¶ 33.] Lastly, the defendants assert that the court should have given an instruction on assumption of the risk based on constructive knowledge. Thus they proposed their instructions numbered twelve and thirteen. They argue that a reasonable motorist would have recognized that not looking to the left when leaving the stop sign was hazardous, that Keith voluntarily proceeded onto the highway with constructive knowledge of the risk of injury, and that therefore knowledge of the danger was imputed to Keith. The trial court granted the Carpenters’ motion for a directed verdict on the issue of assumption of the risk, and refused to give the proposed instructions.
[¶ 34.] The proposed instructions explained the three elements of assumption of the risk: “1) that the plaintiff had actual or constructive knowledge of the existence of the specific risk involved; 2) that the plaintiff appreciated the risk’s character; and 3) that the plaintiff voluntarily accepted the risk, having had the time, knowledge, and experience to make an intelligent choice.” S.D. Pattern Jury Instruction 13-01 (Rev. 1994; Rev for gender 1995).
See Thomas,
[¶ 35.] The defendants have failed to show that the trial court’s denial of the proposed instructions prejudiced them or that it is likely that the jury would have returned a different verdict if their instructions had been given.
See Cook,
[¶ 36.] Judgment affirmed.
Notes
. Halvorsen was treated and released from the hospital that evening, and Officer Wain-man received only minor abrasions on his arms and legs.
. The full text of SDCL 32-29-2.1 states:
Unless directed to proceed by a police officer or traffic control signal, every driver of a vehicle approaching a stop intersection indicated by a stop sign shall come to a full stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or if none, *757 then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right-of-way to any vehicle which has entered or is approaching the intersection from another highway and may not proceed into the intersection until certain that such intersecting roadway is free from oncoming traffic which may affect safe passage. A violation of this section is a Class 2 misdemeanor.
. The Carpenters argue that the denial of summary judgment is not appealable because a final judgment was entered after a full trial on the merits. They cite federal cases applying Federal Rule 56, as well as an Iowa case, that held that a ruling denying summary judgment is interlocutory in nature and is not appealable after a full trial on the merits because the earlier summary judgment ruling has been superseded. SDCL 15-26A-7 states which orders and determinations by the trial court are subject to review on appeal following a judgment:
On appeal from a judgment the Supreme Court may review any order, ruling, or determination of the trial court, including an order denying a new trial, and whether any such order, ruling, or determination is made before or after judgment involving the merits and necessarily affecting the judgment and appearing upon the record.
Id.
The review must be of a ruling that both ”involv[es] the merits” and "affect[s] the judgment.”
Howells v. Howells,
. Although the traffic laws recited in
McKiver
and
Kundert
remain viable, the contributory negligence holdings in these decisions have limited value as precedent. The auto accident in
McKiver
occurred on June 14, 1939, before the enactment of South Dakota's first comparative negligence statute in 1941. SDC § 47.0304-1 (Effective July 1, 1941).
McKiver
applied pure contributory negligence law; that is, any negligence by the plaintiff completely barred recovery. The accident in
Kun-dert
happened on November 10, 1941. The
Kundert
Court applied the 1941 version of the comparative negligence statute, but the Court's interpretation of that statute was in accord with
Friese v. Gulbrandson,