This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Jeffrey R. Smith,





Michael R. Winger, et al.,



Filed July 18, 2000


Amundson, Judge


Beltrami County District Court

File No. C998661

Therese C. Simmonds, Simmonds, Simmonds & Wright, 881 Madison Avenue, Mankato, MN 56001 (for appellant)


Charles R. Powell, Powell, Powell & Light, 713 Beltrami Avenue, P.O. Box 908, Bemidji, MN 56601 (for respondents)


            Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N




Appellant challenges the district court’s denial of his motions for judgment notwithstanding the verdict or a new trial.  This followed a jury’s verdict finding that neither party involved in a two-vehicle collision was negligent.  Appellant contends that because each party presented evidence of the other’s negligence, the jury’s verdict is not supported by the evidence.  We affirm. 


On January 23, 1996, appellant Jeffrey R. Smith was injured in an accident after his vehicle collided with a semi truck owned by respondent August Frenzel, d/b/a Frenzel Logging, and driven by respondent Michael Winger.  At trial, each party presented evidence of the other’s negligence. 

The collision occurred after Smith’s vehicle came over a small hill in the road.  Smith testified that he first observed the semi truck when it was 400 feet away and that it pulled out onto the road in front of him when he was only 100 feet away and then became stuck in the snow, blocking both lanes.  Smith testified that although he attempted to avoid the semi, he simply did not have enough time to stop, and he collided with the semi.

            Winger also testified that the semi truck became stuck in a snow bank, but contrary to Smith’s testimony, Winger testified that he did not pull out in front of Smith and that he was stuck in the snow bank before Smith came over the crest of the hill.  Additionally, Winger testified that the distance between the hill and his semi truck was 600 feet and that Smith had ample distance to stop.  Winger argued that the collision was due to Smith travelling at an excessive rate of speed.

            The jury returned a special verdict finding that neither party was negligent.  After the jury returned its verdict, Smith moved for judgment notwithstanding the verdict or a new trial.  The district court denied Smith’s motions, and this appeal followed.



This court reviews the denial of a motion for judgment notwithstanding the verdict (JNOV) de novo.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  When reviewing a denial of JNOV, we must affirm if, in the record, “there is any competent evidence reasonably tending to sustain the verdict.”  Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984) (citation omitted).  The evidence must be viewed in the light most favorable to the verdict.  ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

Smith contends that the jury’s verdict cannot be reconciled with the evidence submitted at trial.  Specifically, Smith contends that this case is analogous to Hennen v. Huff, 388 N.W.2d 408 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986), which held that a jury’s liability determination that neither driver in a two-vehicle accident was negligent was contrary to the evidence.  But the facts of Hennen are unique.  In Hennen, two vehicles collided in the middle of a controlled intersection.  Id. at 409.  The drivers both claimed they had the green light and had properly looked in all directions when entering the intersection.  Id. at 411.  The testimony of each driver was uncontroverted and unimpeached.  Id.   This court concluded that because it was impossible for each driver to have the green light at the time of the collision, one of the drivers must have entered the intersection on a red light.  Id.  In light of that conclusion, the jury’s verdict was not reasonably supported by the evidence, and this court reversed and remanded for a new trial on the issue of liability.  Id. at 411 & n.1.

Unlike Hennen, here there are no facts suggesting that one of the drivers must have been at fault.  Instead, the jury could have reasonably concluded that the collision was an unavoidable accident—not the result of either party’s negligence.  Smith contends that because neither party argued that the accident was unavoidable, the evidence cannot support such a conclusion.  Smith urges this court to conclude that the jury must adopt one of the positions offered at trial, that is, that either Smith or Winger was negligent.  But requiring that the jury adopt one version or the other ignores the traditional function of the jury, that is, assignment of “the weight to be given to the testimony of a witness and to decide what the testimony of the witness proves.”  Peterson v. Minneapolis Star & Tribune Co., 282 Minn. 264, 273, 164 N.W.2d 621, 627 (1969) (quoting Cameron v. Evans, 241 Minn. 200, 204, 62 N.W.2d 793, 796 (1954)).  Accordingly, it is the jury’s prerogative to find neither party sustained its burden of proof. 274, 164 N.W.2d at 628.

            Here, the jury was properly instructed on the parties’ respective burdens of proof.  Because the jury was entitled to conclude that neither party sustained his burden of proof, and because the evidence reasonably supports the jury’s verdict that neither party was negligent, we conclude the district court properly denied Smith’s motion for JNOV.


            Smith also challenges the district court’s denial of his motion for a new trial.  A district court has the discretion to grant a new trial, and accordingly, we will not disturb a denial of a motion for a new trial absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  The jury’s verdict must stand unless, viewed in the light most favorable to the verdict, we conclude it is “manifestly and palpably contrary to the evidence.”  ZumBerge,481 N.W.2d at 110.   As we have stated, because the jury could have reasonably concluded that neither party sustained his burden of proof that the other was negligent, we cannot conclude that the verdict is contrary to the evidence, and thus we hold the district court did not abuse its discretion when it denied Smith’s motion for a new trial.




            Smith’s final argument is that a new trial is required in the interests of justice.  See Fontilla v. Boyes, 256 N.W.2d 248, 249 (Minn. 1977) (concluding that in a negligence action involving a rear-end collision, a jury’s finding for defendant warranted a new trial because though a contrary finding was not required as a matter of law, it was required in the interests of justice).  Smith argues that he is entitled to a conclusion that someone, either Smith or Winger, was at fault.  But again, such a conclusion invades the province of the jury, that is, that it may find that neither party was successful in showing, by the greater weight of the evidence, that the other was negligent.