This opinion will be unpublished and

may not be cited except as provided by

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






Bronson T. Mengedoht,





Willliam J. Lau,



Filed September 18, 2001


Hanson, Judge


Winona County District Court

File No. C8-99-1741


Thomas F. Handorff, Eckman, Strandness & Egan, 319 Barry Avenue South, P.O. Box 597, Wayzata, MN 55391 (for appellant) 


Peter C. Sandberg, Kari C. Stonelake-Hopkins, Dunlap & Seeger, P.A., 505 Marquette Bank Building, P.O. Box 549, Rochester, MN 55903 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge, Hanson, Judge, and, Lindberg, Judge. *

U N P U B L I S H E D  O P I N I O N


Appellant was injured when he was riding his bicycle in a crosswalk and was struck by respondent’s vehicle.  The jury found both parties negligent, but found that respondent’s negligence was not a direct cause of the accident.  Appellant challenges the denial of his motion for a new trial or judgment notwithstanding the verdict, contending that the jury instruction on right-of-way was erroneous, that the verdict was contrary to the evidence and that respondent was negligent as a matter of law because he did not see appellant, who was in plain sight.  We affirm.


On May 8, 1997, respondent William J. Lau was driving his pick-up truck west on Mark Street in Winona, Minnesota.  When Lau reached the stop sign at Mankato Avenue, he came to a stop before the crosswalk.  Lau testified that he first looked to his right but did not see any pedestrians approaching on the sidewalk.  He then looked to his left and moved forward to turn right onto Mankato Avenue. 

At approximately the same time, appellant Bronson T. Mengedoht was riding his bicycle south on the sidewalk parallel to Mankato Avenue.  Mengedoht testified that, as he approached the crosswalk, he noticed that Lau’s truck was moving but he entered the crosswalk without stopping because he thought Lau was going to stop.  As Mengedoht rode in front of Lau’s moving truck, the truck’s plow attachment struck him on the back of his left shoulder, injuring him. 

The jury returned a unanimous special verdict, finding both Lau and Mengedoht negligent, but finding that Lau’s negligence did not directly cause the accident.  The court entered judgment on the jury’s verdict, dismissing the complaint with prejudice.  Mengedoht moved for judgment notwithstanding the verdict, or, alternatively, a new trial on the issue of liability.  The court denied both motions.  This appeal followed.


We will not disturb the district court’s decision to grant or deny a new trial absent a clear abuse of discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  “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).  Similarly, where the district court has denied JNOV, the reviewing court must affirm the denial if there is any competent evidence in the record “reasonably tending to sustain the verdict.”  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998)(quotations and citations omitted).


Mengedoht first argues that he is entitled to a new trial because the district court erred in instructing the jury on the statutory right-of-way under Minn. Stat. § 169.21, subd. 2(a) (1996).  District courts have broad discretion in selecting the language of jury instructions.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  Thus, a new trial is warranted only when the jury instructions, considered as a whole, do not fairly and correctly state the applicable law, cause a miscarriage of justice, or result in substantial prejudice.  H Window Co. v. Cascade Wood Prods. Inc., 596 N.W.2d 271, 277 (Minn. App. 1999), review denied (Minn. Aug. 17, 1999).  Moreover, because Mengedoht did not state an objection to the instruction on the record, our review of the instruction is limited to whether there was an error of “fundamental law or controlling principle.”  Minn. R. Civ. P. 51 (providing that a party who has not stated an objection may only assign as error, in a motion for a new trial, “[a]n error in the instructions with respect to fundamental law or controlling principle * * * .”)

The disputed instruction was a verbatim recital of Minn. Stat. § 169.21, subd. 2(a), as follows:

Where traffic-control signals are not in place or in operation, the driver of a vehicle shall stop to yield the right-of-way to a pedestrian crossing the roadway within a marked crosswalk or within any crosswalk at an intersection but no pedestrian 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.


Mengedoht argues that this instruction is contrary to fundamental law because (1) it does not apply to this intersection, which was controlled by a stop sign, and (2) it does not apply when the vehicle otherwise having the right-of-way has stopped just before the accident occurs [1].

Mengedoht argues that this right-of-way provision applies only to intersections at which there are no traffic control devices of any kind.  He interprets the qualifying phrase, “[w]here traffic-control signals are not in place,” to exclude this intersection, which is controlled by a stop sign.  This interpretation is inconsistent with the statutory definition.

A “[t]raffic control signal” is defined as “any device, whether manually, electrically or mechanically operated, by which traffic is alternately directed to stop and permitted to proceed.”  Minn. Stat. § 169.01, subd. 42 (1996).  This definition does not include a stop sign, which instead is one type of “traffic control device.”  A “traffic control device” is defined by statute as “all signs, signals, markings, and devices * * * for the purpose of regulating, warning, or guiding traffic.”  Id., subd. 41 (1996) (emphasis added).  Therefore, the right-of-way provisions of section 169.21, subdivision 2(a), are applicable to this intersection because it is controlled by a stop sign, not a traffic control signal.

Mengedoht next argues that it was error to instruct on the statutory right-of-way because Lau had forfeited the right-of-way by stopping prior to the accident.  In support of this argument, Mengedoht cites Wright v. Minneapolis St. Ry. Co., 222 Minn. 105, 111, 23 N.W.2d 347, 353 (1946). 

In Wright, a pedestrian was injured by a streetcar when he walked in front of it in an intersection without traffic-control signals.  Id. at 107, 23 N.W.2d at 351.  At the time the pedestrian entered the intersection and walked in front of the streetcar, the streetcar was stopped in the crosswalk.  Id. at 111, 23 N.W.2d at 353.  The district court provided a jury instruction that appears to have been premised on Minn. Stat. § 169.21, subd. 2 (1945), but was a paraphrase that essentially asked the jury to decide liability by resolving the parties’ competing claims to the right-of-way.  The district court instructed:

[I]f the streetcar had entered the intersection and had crossed the southerly crosswalk of that intersection before this boy stepped from the curb into the street, then the streetcar would have had the right of way.  But if the boy had stepped from the curb onto the crosswalk with the intention of proceeding in an easterly direction on the southerly crosswalk, before the streetcar had entered the intersection, then the boy would have had the right of way.


Id. at 108-09, 23 N.W.2d at 351-52.  The supreme court determined that this was “a correct abstract rule of law,” but it had no application to the facts because it was undisputed that the streetcar had crossed the crosswalk before it stopped.  Id. at 111, 23 N.W.2d at 353.  The supreme court observed that a stopped vehicle has no right-of-way over a pedestrian in a roadway, and a pedestrian has no right-of-way over a vehicle, moving or stopped, in the crosswalk.  Id.  Accordingly, it held that the district court should not have given any instruction on right-of-way, but should have relied on the “ordinary rules of negligence without regard to any claimed right of way.”  Id. 

The Wright decision is distinguishable from the present case.  It is undisputed that Lau had stopped, but it is not claimed that he stopped after he crossed the crosswalk.  Further, there is conflicting evidence regarding whether Lau was still stopped when Mengedoht reached and entered the intersection.  Under these circumstances, the question whether Lau forfeited the right-of-way, by remaining stopped when Mengedoht entered the crosswalk, was a fact issue to be decided by the jury.  See Johnson v. Waleteke, 498 N.W.2d 541, 542 (Minn. App. 1989), review denied (Minn. Jan. 12, 1990) (stating that the jury is responsible for making reasonable inferences from the facts and determining the credibility of witnesses).  Unlike Wright, where both parties’ claims to the right-of-way were rejected as a matter of law, the parties’ claims to the right-of-way here turn on a question of fact.  Therefore, we conclude it was appropriate to instruct the jury on the law of right-of-way. 

The next question is whether the jury instruction adequately describes the conditions under which Lau would forfeit the right-of-way.  That is, would Mengedoht be prejudiced by the instruction if the jury found that Lau’s truck was still stopped when Mengedoht entered the roadway?  We conclude he would not because the instruction contemplates that Lau would forfeit the right-of-way (i.e., Lau must “yield the right-of-way”) if he was still stopped when Mengedoht was “crossing the roadway within a marked crosswalk * * * .”  Minn. Stat. § 169.21, subd. 2(a).

Because the right-of-way instruction correctly states the law, does not prejudice either party, and enabled the jury to decide the facts that would determine whether or not Lau had forfeited the right-of-way, the district court properly exercised its discretion by denying Mengedoht’s motion for a new trial.  See H Window Co., 596 N.W.2d at 277. 


            Mengedoht also argues that he is entitled to JNOV or a new trial because the evidence compels a finding that Lau’s negligence was a direct cause of the accident.

Mengedoht maintains that Lau was negligent as a matter of law because he failed to see Mengedoht, who was in plain view.  But the jury found that Lau was negligent, presumably because he did not see Mengedoht.  The critical question is whether a reasonable person could find  that Lau’s negligence did not directly cause Mengedoht’s injury.  Causation is a fact issue that is usually left for the jury, but may be decided as a matter of law when reasonable minds can arrive at only one conclusion.  Gustafson v. Chestnut, 515 N.W.2d 114, 116 (Minn. App. 1994) (citations omitted).

Viewing the evidence in the light most favorable to the verdict, the jury could have reasonably concluded that Lau was negligent in not seeing Mengedoht, but that Mengedoht’s negligence in entering the intersection without stopping, after Lau had already begun moving to make a right turn, was the direct cause of the accident.

Because the jury’s causation finding is supported by competent evidence that sustains the verdict, the district court did not abuse its discretion by denying Mengedoht’s alternative motion for JNOV or a new trial.


* 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] The court and parties agreed that (1) Mengedoht was subject to the same rights and duties as a pedestrian because he was riding on the sidewalk, and (2) no local ordinance prohibits bicyclists from riding on the sidewalk.