This opinion will be unpublished and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

C5-00-1701

 

Pemba Tsering, et al.,

Respondents,

 

vs.

 

Joey Breault, et al.,

Appellants.

 

Filed June 12, 2001

Affirmed

Poritsky, Judge*

 

Hennepin County District Court

File No. 998054

 

Andrew S. Birrell, Charles D. Slane, Birrell & Dunlap Ltd., 510 First Avenue North, Suite 500, Minneapolis, MN 55403 (for respondents)

 

 William M. Hart, Richard L. Pemberton, Jr., Melissa Dosick Riethof, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402; and

 

Michael J. Tomsche, Tomsche, Sonnesyn & Tomsche, P.A., 888 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellants)

 

 

            Considered and decided by Gordon Shumaker, Presiding Judge, James Harten, Judge, and Bertrand Poritsky, Judge.

 


U N P U B L I S H E D   O P I N I O N

 

PORITSKY, Judge

 

            Following a jury trial in an action for negligence, appellants Joey Breault (Breault) and Minneapolis Taxi Services Corp. (MTSC) challenge the decisions of the district court.  Appellants claim that the evidence was inconsistent with the jury’s finding that Breault’s negligence was the sole direct cause of an accident, arguing the trial court erred when it denied appellants’ motion for a new trial.  In addition, appellants argue that it was reversible error for the trial court to allow Breault to be impeached by showing that his taxi license had been revoked.  Because there was evidence to support the jury’s verdict and because the trial court did not err in admitting evidence of the revocation, we affirm.

FACTS

 

            On the evening of June 2, 1998, at approximately 11:30 p.m., respondent Pemba Tsering (Tsering) was riding home from work on his bicycle.  The bicycle lacked the headlight required by Minn. Stat. § 169.222, subd. 6(a) (1998).  Tsering was traveling north, in the lane reserved solely for bicycles, on a well-lit stretch of Hennepin Avenue.  To Tsering’s left was a southbound lane reserved for authorized vehicles, such as taxicabs and buses.

            As Tsering was traveling north, Breault was driving his cab, which he had leased from MTSC, south in the authorized vehicle lane.  Breault came upon another cab, illegally parked in his lane.  Because that cab blocked his passage, Breault drove to his left into the adjacent bike lane, where he collided head on with Tsering.  The impact caused Tsering to fly over the bike’s handlebars into the windshield of the cab. As a result of the accident, Tsering suffered a concussion, broken thumb, injured back, and fractured kneecap.

            Tsering brought suit against both Breault and MTSC, alleging negligence.  At trial, witnesses described the accident as set out above.  Further, Breault testified that he no longer drove a taxicab because of flashbacks of the accident.  On cross-examination, Breault admitted that another reason that he no longer drove a cab was that his taxi license had been revoked.

D E C I S I O N

I.

             A new trial may be granted, among other reasons, when the verdict is not supported by the evidence, when errors of law occur at trial, or when the damages awarded are excessive.  Minn. R. Civ. P. 59.01(e)-(g).

On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict. 

 

ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992).

            Appellants argue that the trial court erred in denying their motion for a new trial because the record does not support the jury’s findings that although three parties were negligent, only Breault’s negligence was the cause of the accident.  The special verdict form did not require the jury to specify the basis for its decision.  However, “[i]f answers to special verdict questions can be reconciled in any reasonable manner consistent with the evidence and its fair inferences, the denial of a new trial must stand.”  Carnahan v. Walsh, 416 N.W.2d 187, 189 (Minn. App. 1987) (citation omitted), review denied (Minn. Feb. 12, 1988).

The only findings challenged by appellants are those concerning causation: the jury found Breault’s negligence to be the sole cause of the accident.  Proximate cause is a question of fact that ordinarily must be left for the jury.  Pluwak v. Lindberg, 268 Minn. 524, 528-29, 130 N.W.2d 134, 138 (1964).  Therefore, a jury’s finding of proximate cause will not be set aside unless it is “manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.”  Vanderweyst v. Langford, 303 Minn. 575, 576, 228 N.W.2d 271, 272 (1975).  A common definition of causation is found in the jury instruction guide: “[a] ‘direct cause’ is a cause that had a substantial part in bringing about the [collision].”  4 Minnesota Practice, CIVJIG 27.10 (1999).

            Breault’s argument relies to a large extent on the testimony of police Sergeant Lyle Beauchamp, whom Breault describes as “[t]he only eyewitness who testified at trial.”  (Emphasis in original.)  Sergeant Beauchamp, a police officer on mounted patrol nearby when the accident occurred, testified that he observed Breault slowly driving around the illegally parked cab.  He also observed Tsering traveling very fast in the bike lane and testified that Tsering pedaled right into Breault’s slow-moving cab.  Beauchamp stated at trial that he was surprised that Tsering did not attempt to evade the cab.

            Based on Beauchamp’s testimony, Breault argues that this case is controlled by Reese v. Henke, 277 Minn. 151, 152 N.W.2d 63 (1967).  In Reese, the plaintiff was a passenger in a car that rear-ended a slow-moving truck. Id. at 152, 152 N.W.2d at 65.  The driver of the car first observed the truck from a distance of 500 feet.  Id. at 153, 152 N.W.2d at 65.  As the driver of the car moved closer, he noticed the truck was not moving and he was then forced to slam on his brakes.  Id.  The car skidded approximately 48 feet before hitting the truck.  Id.  The jury found the driver negligent, but found no causation on the part of the driver.  Id. at 155, 152 N.W.2d at 66.  On appeal, the supreme court set aside the jury’s verdict, holding

where a jury has found negligence, it becomes our duty to hold as a matter of law that such negligence was a proximate cause of the injury where, in our opinion, reasonable men can come to no other conclusion.

 

 Id. at 156, 152 N.W.2d at 67 (citation omitted).

As we have noted, Breault’s argument relies to a large degree on the testimony of Beauchamp. However, there were discrepancies with respect to Beauchamp’s testimony that may have led the jury to disbelieve it altogether or in part, and the jury is in the best position to evaluate the credibility of witnesses.  State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999).

            Beauchamp estimated that Tsering was traveling between 20 and 25 miles per hour on his bicycle, but another officer had testified that, in his experience, he had never clocked a bicyclist moving faster than 13 to 15 miles per hour.  Further, Beauchamp testified that at the trial of the accident, he was on mounted patrol at Hennepin Avenue and Fifth Street, yet he could not pinpoint where the accident occurred.  Finally, Beauchamp testified that the taxis were parked along a snow bank, but the collision occurred in June.

For all of these reasons, the jury could have simply dismissed the testimony of Beauchamp in its entirety or in part.  In cases like this, the ultimate question is

whether or not, when the testimony is viewed in the light most favorable to [respondent], the jury’s verdict can be reconciled in any reasonable manner consistent with the evidence and its fair inferences. 

 

Vanderweyst, 303 Minn. at 576, 228 N.W.2d at 272; accord Thorn v. Glass Depot, 373 N.W.2d 799, 803 (Minn. App. 1985) (decision must be based on the evidence as a whole, viewing all evidence in a light most favorable to the verdict), review denied (Minn. Nov. 1, 1985).

            As to Breault’s contention that the jury had to find that Tsering’s negligence was a proximate cause of the accident, it is plausible that the jury found Tsering to be negligent because his bike did not have the required headlight.  The trial judge informed the jury that a violation of this statute was negligence per se and that Tsering was negligent unless he had a suitable excuse for violating the statute.  However, it is undisputed that the area where the accident occurred is well lit, and therefore the jury could reasonably find that Tsering’s negligence was not a proximate cause of the accident.  Thus, while the evidence could support a verdict opposite of the one rendered by the jury, it is not so conclusive that reasonable minds could not have held as the jury did.  See Pluwak, 268 Minn. at 530-31, 130 N.W.2d at 139-40.

            This same analysis holds for Breault’s argument concerning the illegally parked cab.  Here again is a case of negligence per se, because the cab was illegally parked in the bus lane.  Breault argues that common sense should dictate that the cab was a proximate cause of the accident because if the cab were not illegally parked, he would not have had to drive into the bike lane.  We agree that this is a plausible argument, but the evidence also supports the jury’s special verdict finding because Breault admitted that the illegally parked cab did not impede his vision.  Thus, he was able to maintain proper lookout and assess the safety of the situation before he attempted to pass the parked cab.  Therefore, the jury could reasonably believe that even though the person who illegally parked the cab was negligent, only Breault’s negligence was the proximate cause of Tsering’s injuries.  Since both positions are plausible, the evidence is not so conclusive that the court can overturn the jury’s special verdict.  Therefore, the jury had sufficient evidence to find that Breault was the sole cause of the accident, and his motion for a new trial on this ground was properly denied.                                                                          

II.

 

            Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the trial court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  A witness may be impeached by showing that he or she has not told the truth while under oath.  See King v. All-American, Inc., 309 N.W.2d 62, 63 (Minn. 1981).

            Here, on direct examination, Breault testified that he no longer drove his taxi because he kept having flashbacks of the accident.  On cross-examination, Tsering’s counsel gave him the opportunity to explain if there were any other reasons why he no longer drove a cab.  Breault said there were none.  He was then questioned about the revocation of his taxi license.  In response, he admitted that this was also a reason he was no longer driving a cab.  The questioning about his revocation was appropriate impeachment to show that Breault had not been candid when he told the jury under oath that he no longer drove a cab only because of flashbacks.

Breault argues that the evidence of his taxi license revocation should not have been admitted at trial because it is excluded by Minn. Stat. § 169.94, subd. 2 (2000).  Violations of Minnesota Statutes Chapter 169 are not admissible either as evidence or to affect the credibility of a witness.  Id., subds. 1, 2 (2000).  It is not necessary for us to decide whether his direct testimony acted as a waiver of any objection Breault might have had under section 160.94, because the plain language of the statute indicates that it covers only violations of  chapter 169 and “other traffic rules.”  Breault’s taxi license was revoked pursuant to Minneapolis, Minn., Code of Ordinances § 341.440 (1988), which deals with licensing and is not a traffic rule. Evidence of the revocation was not excluded by operation of the statute, and we conclude that the trial court did not err by admitting it.  Breault’s motion for a new trial on this ground was properly denied.

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.