This opinion will be unpublished and

may not be cited except as provided by

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






Jack L. Prescott, et al.,


Merlin D. Clemetson, et al.,

Courtney E. Crawford, et al.,


Filed June 4, 2002


Peterson, Judge


Ramsey County District Court

File No. C9006749


Daniel T. Cody, Cody Law Office, 1001 Degree of Honor Building, 325 Cedar Street, St. Paul, MN  55101 (for appellants)


Kenneth R. Swift, Michael B. Padden, Padden & Associates, P.A., 800 Rosedale Towers, 1700 West Highway 36, St. Paul, MN  55113 (for respondents Merlin D. Clemetson and Aegis Express)


Kimberly T. Ross, Eric J. Magnuson, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN  55402 (for respondents Courtney E. Crawford and William A. Crawford)


            Considered and decided by Peterson, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellants brought this negligence action against respondents, seeking to recover for injuries arising out of a motor-vehicle accident that involved three vehicles, but the jury found that no one was negligent.  This appeal is from the posttrial order denying appellants’ motion for a new trial or JNOV.  Appellants contend that the driver of a semi-truck was negligent as a matter of law and that the district court committed fundamental error by inadvertently omitting a jury instruction on the requirement in Minn. Stat. § 169.18, subd. 8 (2000), that a semi-truck allow 500 feet of following distance.  We affirm.


This negligence action arose out of a three-vehicle accident that occurred on January 12, 2000, in Arden Hills where southbound Highway 10 merges into eastbound Interstate 694.  The drivers of the vehicles were appellant Jack L. Prescott and respondents Merlin D. Clemetson and Courtney E. Crawford.  The other parties to the lawsuit are Prescott’s wife, appellant Myong C. Prescott; Clemetson’s employer, respondent Aegis Express; and respondent William A Crawford, the owner of the vehicle Courtney Crawford was driving

Approaching the accident site, Highway 694 has two traffic lanes, and two lanes from Highway 10 merge into the left side of 694.  The right lane of Highway 10 ends as the highways merge, and the left lane on Highway 10 becomes a third lane on 694.  Four-tenths of a mile past where Highways 10 and 694 merge, traffic in the right lane must exit onto Snelling Avenue.

When the accident occurred, the highways were covered with about four to six inches of snow.  Prescott was in his car traveling east on 694.  He was in the left lane, which becomes the center lane after the merger.  Richard Pearson was a passenger in the front seat of Prescott’s car.  Crawford was traveling south on Highway 10 in a sport utility vehicle (SUV).  She had her right turn signal activated, intending to move across to the right lane of 694 and exit on Snelling.  Clemetson was directly behind Prescott’s car driving a semi-truck pulling a trailer.

Richard Gauger, a licensed professional engineer, testified as an expert for appellants.  He testified that although the interchange was designed in the 1960’s to handle less traffic than the current volume, it was capable of being driven safely even in bad weather conditions.  Gauger expressed no opinion as to whether anyone was at fault in the accident.

Prescott testified that within the mile before the accident site, traffic was heavy and moving at 40 to 45 miles per hour.  He did not recall seeing any accidents in that area.  Prescott testified that he slowed down to 30 to 35 miles per hour as he approached the Highway 10 interchange and then to 20 miles per hour to allow Crawford to merge.  Prescott estimated that the semi-truck was three to four car lengths behind his car as he approached the Highway 10/694 interchange.

Pearson testified that as he and Prescott traveled on Highway 694, traffic was moderate, Prescott was not having any trouble driving, and he did not recall the car slipping or sliding at all.  Pearson estimated that due to traffic and road conditions, the top speed of Prescott’s car on 694 was 40 to 50 miles per hour.  Pearson recalled that as they approached the Highway 10 interchange, an SUV appeared to be attempting to merge from Highway 10 onto 694.  The SUV was traveling at a slower rate of speed than traffic on 694 and had its right turn signal activated, so Prescott slowed down his car to allow the SUV to merge.  Pearson testified that at that point, Prescott’s car was rear-ended and propelled forward about 15 feet into the SUV.

Crawford estimated that she was traveling at about 15 miles per hour just before the accident occurred.  Crawford testified that she saw Prescott’s car and the semi-truck as she approached the Highway 10/694 interchange.  She estimated that the semi-truck was about two car lengths or 26 feet behind Prescott’s car when she first saw the two vehicles.

Anna Holton was driving her car south on Highway 10 directly behind Crawford’s SUV and witnessed the accident.  Holton testified that traffic on 694 was congested and moving at only about 10 to 15 miles per hour.  Holton described the weather as very bad, creating snow-covered, slippery road conditions.  As Holton approached the Highway 10/694 interchange, she saw Prescott’s car and the semi-truck.  She estimated that the semi-truck was less than 30 feet behind Prescott’s car.  Holton testified that Crawford slowed down and sped up at least twice and moved from side to side as she attempted to merge onto 694.  Holton estimated that Crawford was traveling at about 10 miles per hour as she attempted to merge.  Holton testified that when the accident occurred, Crawford’s SUV was partly in the lane in front of Holton’s car and partly in the lane in front of Prescott’s car.

Clemetson testified that on the accident date, he was driving an 18-wheel tractor-trailer-combination vehicle that was 75 feet long and weighed 79,600 pounds, including its load.  Clemetson testified that approaching the accident site, road conditions were very slippery, and traffic was moderately heavy, with vehicles in front, behind, and to the side of his truck.  Clemetson testified that within the mile before the accident site, he was traveling at 25 to 30 miles per hour, and he saw two accidents.  Clemetson first saw Prescott’s car about one-half mile before the accident site.  Clemetson testified that he slowed his vehicle to 10 to 15 miles per hour as he approached the accident site.  Clemetson estimated that he was three to three and a half car lengths behind Prescott’s car approaching the Highway 10/694 interchange, but that the distance decreased due to a bottleneck at the interchange.  Clemetson estimated that two to three car lengths equaled about 50 feet.  Clemetson testified that the distance between his vehicle and Prescott’s car had decreased to one to one and a half car lengths when he saw Crawford trying to merge and Prescott braking to let her in.  Clemetson braked, but his vehicle slid, and he was unable to stop it in time to avoid hitting Prescott’s car.  Clemetson was uncertain of the distance it would take to stop his truck when traveling at 20 to 25 miles per hour on a slippery road.


1.         Minn. Stat. § 169.18, subd. 8(b) (2000), states:

            The driver of any motor vehicle drawing another vehicle, or the driver of any motor truck or bus, when traveling upon a roadway outside of a business or residence district, shall not follow within 500 feet of another vehicle.  The provisions of this clause shall not be construed to prevent overtaking and passing nor shall the same apply upon any lane specially designated for use by motor trucks


Appellants argue that the district court erred in failing to instruct the jury on the requirement in Minn. Stat. § 169.18, subd. 8(b), that the driver of a semi-truck must allow 500 feet of following distance.  Appellants neither requested that instruction nor objected to the district court’s failure to include it.

District courts have broad discretion in selecting the language of jury instructions.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).

No party may assign as error unintentional misstatements and verbal errors or omissions in the charge, unless that party objects thereto before the jury retires to consider its verdict, stating specifically the matter to which that party objects and the ground of the objections. An error in the instructions with respect to fundamental law or controlling principle may be assigned in a motion for a new trial although it was not otherwise called to the attention of the court.


Minn. R. Civ. P. 51.  An error is fundamental or controlling if it destroys the substantial correctness of the charge as a whole, causes a miscarriage of justice, or results in substantial prejudice.  Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974).

            The district court instructed the jury as follows:

            The violation of a duty to use reasonable care is negligence.  The duty of reasonable care may include these duties:  drivers must keep a reasonable lookout; a driver must keep his or her vehicle under reasonable control.  Whether any of these duties was violated depends on the risks of the situation, the dangers that were known or could have been anticipated, all of the existing circumstances.


            Besides the duties I’ve already read to you, drivers have additional duties.  These additional duties are traffic laws passed by the legislature. * * *


            * * * *


            The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the conditions of the highway.


            * * * *


            Violation of a traffic law is negligence unless there is evidence tending to show that the person had a reasonable excuse or justification for breaking the law or a reasonable person could believe under the circumstances that violating this law would not endanger anyone who should be protected by the law.  If a person offers an excuse or justification for breaking the law, you can still find that person negligent.


            In deciding negligence, consider the violation along with all the other evidence in the case.  If the traffic law was violated, you must also decide if this violation was a direct cause of the accident.


            It is undisputed that Clemetson’s semi-truck was following within 500 feet of Prescott’s car.  Appellants argue that if the jury had been instructed on Minn. Stat. § 169.18, subd. 8(b), the outcome of trial would have been different.  Appellants’ argument fails to recognize that violation of a traffic statute does not require a finding of negligence as a matter of law.

            In a civil action, violation of a traffic statute constitutes prima facie evidence of negligence.  Minn. Stat. § 169.96 (2000).  Once a plaintiff establishes such a prima facie case, the burden of proof shifts to the violator to show excuse or justification.  Marshall v. Galvez, 480 N.W.2d 358, 361 (Minn. App. 1992).  If the violator presents evidence that tends to show excuse or justification, it is for the jury to decide whether the violation constitutes negligence.  Id.

In this case, approaching the accident site, traffic was congested and traveling at speeds of 40 to 50 miles per hour or less and slowing down approaching the Highway 10/694 interchange.  As the district court found in denying appellants’ new-trial motion,

            Clemetson’s testimony gave many reasons for explaining why a violation of Minn. Stat. § 169.18, subd. 8 (stopping within 500 feet) was justified.  He testified that the inclement weather clogged and congested the roads.  He had seen two accidents on Interstate 694 from 35W to Highway 10 [a distance of one mile].  He testified to a bottleneck condition immediately prior to the accident, which shrunk distance between him and Prescott.  * * * There exists sufficient evidence to show that it would be nigh on impossible for Clemetson to keep a 500 feet in the congested and clogged traffic.  For one thing, vehicles would pass Clemetson and get in front of him and therefore further congest the traffic.


            * * * Here the jury had before it Minn. Stat. § 169.18 subd. 8(a) which states that the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent.  They either found Clemetson did not follow more closely than reasonable and prudent or that Clemetson had a reasonable excuse or justification.


The ultimate question for the jury was whether Clemetson violated the duty to use reasonable care.  The district court instructed the jury that a driver has a statutory duty to not follow another vehicle more closely than is reasonable and prudent and that violation of the statutory duty is negligence absent a reasonable excuse or justification.  Those instructions accurately stated the law and afforded appellants a fair opportunity to present to the jury their theory of the case that the direct cause of the accident was Clemetson following too closely behind Prescott’s car at an excessive rate of speed and, as a result, losing control of his semi-truck and rear-ending Prescott’s car.  Considering the jury instructions as a whole together with evidence that traffic conditions would have made it impractical, if not impossible, to maintain a following distance of 500 feet, we conclude that the omission of an instruction on Minn. Stat. § 169.18, subd. 8(b), was not fundamental or controlling error.

2.         Appellants argue that the jury’s finding that Clemetson was not negligent is unsupported by the evidence and, therefore, the district court erred in denying their motion for JNOV or a new trial.

            This court reviews the denial of a motion for JNOV de novo.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  This court must view the evidence in the light most favorable to the prevailing party and must not set the verdict aside if it can be sustained on any reasonable theory of the evidence. Id. The evidence must be practically conclusive against the verdict so that reasonable minds can reach only one conclusion.  Nadeau v. County of Ramsey, 277 N.W.2d 520, 522 (Minn. 1979).

            A new trial will only be granted if


the verdict is so contrary to the preponderance of the evidence as to imply that the jury failed to consider all the evidence or acted under some mistake or from some improper motive, bias, feeling or caprice, instead of honestly and dispassionately exercising its judgment.


LaValle v. Aqualand Pool Co., 257 N.W.2d 324, 328 (Minn. 1977).  Although difficult to meet, this test is not as rigorous as the standard for JNOV.  Lamb v. Jordan, 333 N.W.2d 852, 856 (Minn. 1983).

            Based on Clemetson’s admission that his vehicle was sliding and he did not have it under control when the accident occurred, appellants argue that the evidence does not support the jury’s finding that Clemetson was not negligent.  Appellants argue that because Clemetson could see farther ahead down the highway due to the height of his truck and because his truck weighed 79,600 pounds, he had a duty to maintain a greater following distance than he did behind Prescott’s car.  While the record does contain evidence that could support a finding that Clemetson was negligent, it does not conclusively establish that Clemetson was negligent. Considering the evidence as a whole, it was reasonable for the jury to find that the accident occurred due to traffic congestion and slippery road conditions and not as a result of anyone’s negligence.  See Marshall, 480 N.W.2d at 360 (rule that loss of control or skidding is not by itself negligence applies to various situations, including wet, slippery road conditions).  The district court did not err in denying appellants’ motion for JNOV or a new trial.


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