This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-1398

 

 

Kenny Byrd,

Appellant,

 

vs.

 

Kelvin Earl Kemmer, et al.,

Respondents.

 

 

Filed May 15, 2001

Affirmed

G. Barry Anderson, Judge

 

Hennepin County District Court

File No. PI9812847

 

 

Douglas W. Scheel, 910 Degree of Honor Building, 325 Cedar Street, St. Paul, MN  55101 (for appellant)

 

John F. Angell, Louise A. Behrendt, Stich, Angell, Kreidler, Brownson & Ballou, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN  55401 (for respondents)

 

            Considered and decided by Toussaint, Presiding Judge, G. Barry Anderson, Judge, and Poritsky, Judge*.

U N P U B L I S H E D   O P I N I O N

G. BARRY ANDERSON, Judge

            Appellant, found to be 100% negligent in an accident where he collided with a school bus while riding his bicycle, contends that the district court (1) abused its discretion in refusing to grant a new trial because the evidence shows respondent bus driver operated the bus in a negligent manner; (2) abused its discretion in denying his motion for a new trial because the jury’s verdict on damages is contrary to the evidence; and (3) erred in not granting a directed verdict that respondent bus driver was negligent as a matter of law.  Because we conclude that the district court did not abuse its discretion in refusing to grant a new trial and did not err in not granting a directed verdict that the bus driver was negligent as a matter of law, we affirm.

FACTS

 

            On September 13, 1996, appellant Kenny Byrd, while riding his bicycle, collided with a school bus driven by respondent Kelvin Kemmer at the intersection of 90th Street and Logan Avenue in Bloomington.  Appellant, age 35, rode off the sidewalk parallel to 90th Street and crashed into the side of the bus when the bus was turning right onto Logan Avenue.  Appellant hit the bus in front of the rear dual wheels, fell under the bus, and sustained serious injuries including a broken pelvis and a collapsed lung.  His medical expenses exceeded $297,000.

            Appellant brought a negligence action against Septran, Inc., the owner of the bus, and the bus driver, Kelvin Earl Kemmer.  At trial, appellant testified that he had been consuming alcohol the previous evening until approximately 3:30 a.m.  After waking up around 10:00 a.m., appellant picked up his paycheck and was on his way to his brother’s office when the accident occurred.  Appellant encountered the bus prior to the accident when, at the intersection of 90th Street and Knox Avenue, the bus stopped in the crosswalk forcing him to “swerve” to avoid a collision.  Appellant then saw the bus turn onto 90th Street and pass him prior to its turn on Logan Avenue.  Appellant testified that the bus did not signal its upcoming right turn.  Appellant stated that he saw a car traveling on Logan approaching 90th Street, and believed that the bus had to allow the car to make its turn before the bus proceeded onto Logan.  When approaching the intersection, appellant slowed down but did not intend to stop because he knew he had the right of way.  He estimated that he was ten to twenty feet from the intersection of 90th Street and Logan when the bus began turning in his path; he could not stop due to sand or gravel on the sidewalk, could not make a right turn with the bus, and did not want to slide under the bus.  As a result, appellant intentionally hit the side of bus. Appellant, however, fell under the bus and was run over.

            The “snub-nose” bus involved in the accident is approximately 38 feet long, 12 feet high, 8 feet wide, and given its name because there is no engine compartment in front of the driver.  Respondent bus driver Kemmer testified that he was aware of the pedestrian crosswalk where the accident occurred and had never seen anyone use it.  Kemmer stated that he did not see appellant until a split second before the collision when he caught a glimpse of him in a mirror.  On the day of the accident, Kemmer confirmed that he wore his prescription glasses, did not have problems with his high blood pressure, and although he could not recall if he used his right turn signal when turning onto Logan Avenue, he stated that he always used his signals when turning.  Kemmer did not remember seeing appellant riding his bicycle on the sidewalk prior to the accident because he was focusing on the automobile traffic, and he did not recall whether there was a car on Logan Avenue immediately prior to his turn.

Some high school students riding the bus testified that the bus was traveling at a normal speed when it passed appellant on 90th Street, and executed the right-turn onto Logan Avenue at a normal speed.  One student testified that appellant was between ten and forty feet from the curb when the bus began its turn onto Logan Avenue.  Another student testified that he removed a lit cigarette from appellant’s mouth after the crash, and recalled smelling alcohol on appellant’s breath or clothing after the accident.

The Bloomington police investigation revealed that the bus executed the turn onto Logan Avenue at a “normal” rate of speed, and that appellant collided with the bus in front of the rear dual wheels on the passenger side.  There was testimony that appellant told an officer at the scene of the accident that he consumed a half-pint of vodka that day.  A blood alcohol test taken one hour after the accident indicated that appellant had a blood-alcohol concentration of .11.

The jury heard testimony from two accident reconstructionists.  Both experts testified that intoxication may have had an effect on appellant’s reaction time, ability to see, judgment and coordination.  Appellant’s expert testified to the negligence of respondent Kemmer, concluding that the bus turned into appellant in a negligent manner.  Respondents’ expert testified that although a bus driver has the duty to keep a reasonable look-out and observe a pedestrian or bicyclist near the edge of a sidewalk before making a turn, appellant was not “near the edge” of the sidewalk when the bus began turning onto Logan Avenue but was, according to appellant, 10 to 20 feet from the curb.  Respondents’ expert stated that a “gouge mark” approximately 16 feet into the intersection, presumably made by appellant’s bike pedal, shows that appellant had at least 26 to 36 feet to stop before hitting the bus.  Respondents’ expert testified that, using various estimates of the speed of the bicycle and the bus, and taking into account the sand on the sidewalk, appellant had sufficient time to stop his bicycle.

At the conclusion of the case, the jury found appellant solely responsible for the accident and awarded appellant “zero” damages.  Appellant moved for a new trial, which was denied.  This appeal followed.

 

D E C I S I O N

I.

 

Appellant argues that the district court abused its discretion in refusing to grant a new trial because the evidence shows respondent Kemmer operated the bus in a negligent manner.  The denial of a motion for a new trial is reviewed on an abuse of discretion basis.  Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 352 (Minn. 1981).  A jury verdict will not be upset unless it is manifestly and palpably contrary to the evidence 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).

Appellant cites Riley v. Lake, 295 Minn. 43, 203 N.W.2d 331 (1972) to support his assertion that Kemmer acted negligently while operating the bus.  In Riley, two vehicles entered an uncontrolled intersection at the same time and collided.  Id. at 45-46, 203 N.W.2d at 333-34.  Minn. Stat. § 169.20, subd. 1 (1972) provided that when two vehicles approach an uncontrolled intersection at the same time, the driver on the left must yield the right-of-way to the driver on the right.  Id. at 49, 203 N.W.2d at 335.  The jury attributed all of the negligence to defendant even though the facts indisputably established that plaintiff entered the intersection a split second before the defendant, who had the right-of-way.  Id. at 46, 203 N.W.2d at 334.  The supreme court concluded that it was error for the jury to have attributed zero negligence to plaintiff when she introduced no credible evidence excusing her failure to comply with the statutory rule of the road.  Id. at 53, 203 N.W.2d at 338.

Appellant argues that, like Riley, he is entitled to a new trial because the facts established that Kemmer acted contrary to statutory law.  Specifically, appellant contends that the evidence established that Kemmer (1) did not use reasonable care in that he failed to keep a reasonable lookout while driving, and (2) did not yield to appellant who had the right-of-way in the crosswalk.  Minn. Stat. §§ 169.14, subd. 1, 169.21, subd. 2, 169.222, subd. 4(f) (2000).

We disagree.  Contrary to Riley, the facts in this case do not “indisputably” show that Kemmer acted contrary to law.  Appellant correctly notes that a driver has a duty to use reasonable care and keep a reasonable look-out while driving.  The jury heard Kemmer testify that he might have seen appellant at the intersection; he was “focused on traffic and it just didn’t register.”  Appellant also correctly noted that in an uncontrolled intersection a bicyclist in a crosswalk has the right-of-way.  But Minnesota law also provides that no bicyclist shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.  Minn. Stat. §§ 169.21, subd. 2(a), 169.222, subd 4(f).  The jury heard that appellant was not in the crosswalk when Kemmer began turning onto Logan, but was from 10 to 40 feet from the curb.   Therefore, viewing the evidence in the light most favorable to the verdict, we conclude that the district court did not abuse its discretion by denying appellant’s motion for a new trial because the jury’s verdict finding appellant solely responsible for the accident is not manifestly and palpably contrary to the evidence.  See Eliason v. Textron, Inc., 400 N.W.2d 805, 807 (Minn. App. 1987) (holding where defendant/driver making a left-hand turn struck a pedestrian crossing the street with a green light and jury found pedestrian 100% negligent, new trial motion properly denied because evidence showed that defendant did not see anyone in the crosswalk when he began his turn and pedestrian was intoxicated).

II.

 

            Appellant argues that the district court abused its discretion in denying his motion for a new trial because the jury’s damages verdict is contrary to the evidence.  “The decision to grant or deny a new trial on the basis of inadequate damages is within the broad discretion of the trial court.”  Peterson v. Independent Sch. Dist. No. 657, 477 N.W.2d 757, 760 (Minn. App. 1991) (citation omitted).  An appellate court should reverse “only where the record reflects that the damage award is so inadequate that it must have been the result of passion or prejudice.”  Id.  A damage verdict may only be disturbed if it is “manifestly and palpably contrary to the evidence.”  Krueger v. Nordstrom, 367 N.W.2d 671, 674 (Minn. App. 1985) (citation omitted), review denied (Minn. July 26, 1985).  In reviewing the sufficiency of a damage award, the court must consider the evidence in the light most favorable to the verdict.  Rayford v. Metropolitan Transit Comm’n, 379 N.W.2d 161, 165 (Minn. App. 1985).

Appellant contends that the evidence clearly shows that appellant suffered damages.  As support, appellant cites Clark v. Johnson Bros. Constr., 370 N.W.2d 896 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985).  In Clark, this court concluded: 

If the damages awarded by the jury encompass only special damages when general damages such as pain and suffering and permanent disability have also been proven, the jury’s damages are inadequate.

 

Id. at 900.  Appellant argues that although the jury awarded zero damages, a new trial is necessary under Clark because appellant’s undisputed medical costs show that he suffered general damages.  But in Clark, the jury found defendant 55% negligent, whereas the jury in this case found appellant solely responsible for the accident.  Id. at 899.  When a jury has determined by its answers to other special verdict questions that there is no liability, “the denial of damages or granting of inadequate damages * * * does not necessarily show prejudice or render the verdict perverse.”  Wefel v. Norman, 296 Minn. 506, 508, 207 N.W.2d 340, 341 (1973) (citation omitted);  see also Russell v. Johnson, 608 N.W.2d 895, 900 (Minn. App. 2000) (negligent nondisclosure case holding no new trial on damages issue where defendant doctor found not negligent), review denied (Minn. June 27, 2000). 

Appellant acknowledges the precedent in Wefel but argues that the Wefel court carved out an exception by stating that the denial of damages does not necessarily show prejudice or render the verdict perverse.  Appellant cites no appropriate caselaw supporting this contention. 

Minnesota caselaw does not support appellant’s reading of Wefel.  In fact, when faced with similar factual circumstances, this court upheld the Wefel court’s reasoning.  Heroff v. Metropolitan Transit Comm'n, 373 N.W.2d 355, 357 (Minn. App. 1985), review denied (Minn. Nov. 18, 1985).  In Heroff, the plaintiff sustained damages when she fell down the icy steps of an MTC bus.  Id at 356The parties stipulated to some of the plaintiff’s damages, but the jury, finding plaintiff 100% negligent, awarded plaintiff one dollar in damages.  Id.  On appeal, this court concluded that since the evidence supported the jury’s liability determination, appellant was not entitled to a new trial on the issue of damages under WefelId. at 357. 

Similarly, in this case it is uncontested that appellant suffered over $297,000 in medical costs.  But the jury, when finding appellant 100% negligent, awarded zero damages.  Using the Heroff reasoning combined with our conclusion that there is sufficient evidence to support the jury’s assignment of 100% of the negligence to appellant, we conclude that the district court did not abuse its discretion in refusing to grant a new trial based on insufficient damages.

Appellant also argues, for the first time on appeal, several legal theories in support of his contention that the jury’s award of “zero” damages was inappropriate, including (1) the damages verdict was contrary to the jury instructions, thus depriving appellant due process of law; (2) the verdict interfered with the district court’s role to determine the plaintiff’s recovery of damages; and (3) the damages verdict was the result of passion or prejudice resulting from certain closing argument comments made by respondent’s counsel.  Appellant did not raise these issues in his motion for a new trial and this court generally will not consider matters that were not argued and considered in proceedings below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  But even if the principle in Thiele is not applied here and the substance of the claims is reached, we conclude that appellant’s arguments are meritless.[1]

III.

Finally, appellant argues that the district court erred in not granting a directed verdict that respondent Kemmer was negligent as a matter of law.  In reviewing a directed verdict, this court makes an independent determination as to whether the evidence was sufficient to present a question of fact for the jury.  Nemanic v. Gopher Heating & Sheet Metal Inc., 337 N.W.2d 667, 669 (Minn. 1983).  The reviewing court must examine the evidence and its inferences to determine whether the evidence could reasonably sustain a contrary verdict.  Northwestern State Bank v. Gangestad, 289 N.W.2d 449, 453 (Minn. 1979).  Unless the evidence is so conclusive that reasonable minds will not differ, the question of the apportionment of causal negligence should be left to the jury.  Riley, 295 Minn. at 58, 203 N.W.2d at 340. 

Generally, where a pedestrian is injured by an automobile upon a public street, the issues of the negligence of the driver and the contributory negligence of the pedestrian are questions of fact for the jury.  Saunders v. Yellow Cab Corp., 182 Minn. 62, 64, 233 N.W. 599, 600 (1930); see also Stahlberg v. Moe, 283 Minn. 78, 84, 166 N.W.2d 340, 344 (1969) (where more than one explanation for the injury existed, and the jury could have reasonably accepted one of them, the question of liability is for the jury).  It is only in the clearest of cases where the facts are undisputed and it is plain that no reasonable person could draw any other conclusion that the determination of negligence becomes one of law for the court.  Nygren v. Minneapolis St. Ry. Co., 241 Minn. 485, 492, 63 N.W.2d 560, 564 (1954).  Because the facts in this case were disputed, and a reasonable person could have found respondent Kemmer not negligent, the district court did not err when refusing to grant appellant a directed verdict as to Kemmer’s negligence.

            Affirmed.

 

           



*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to  Minn. Const. art. VI, § 10.

 

[1] Although not properly before this court, respondent’s counsel, during closing argument, made inappropriate comments inviting the jury to “send a message” with its verdict, essentially taking the jury away from their duty of determining past and present facts and inviting them to consider the future consequences of their decision.  Disturbing as those comments were, however, they were not so severe and clearly prejudicial so as to warrant a new trial.  See Bradley v. Hubbard Broad., 471 N.W.2d 670, 676 (Minn. App. 1991) (holding to warrant new trial, trial counsel’s misconduct “must be severe, have an impact on the jury, and clearly result in prejudice”), review denied (Minn. Aug. 2, 1991).