This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Adam Michael Linn,





Mid-Century Insurance Company,



Filed January 20, 2004


Kalitowski, Judge


Dakota County District Court

File No. CX-02-6714


Robert D. Boedigheimer, McCloud & Boedigheimer, P.A., 5001 West 80th Street, Suite 201, Bloomington, MN 55437 (for appellant)


Timothy J. Eiden, Karen K. Hatfield, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Drive, Suite 250, St. Paul, MN 55112-6973 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            In this personal injury action arising from a motor vehicle accident, appellant challenges a jury verdict finding that the driver of an unidentified vehicle was not negligent.  Appellant argues that the district court erred in denying his motion for a new trial, or alternatively, judgment notwithstanding the verdict because (1) his and his fiancée’s testimony was not contradicted or impeached; and (2) the jury engaged in impermissible speculation.  We affirm. 


            The decision to grant or deny a new trial lies “within the sound discretion of the trial court, and will not be disturbed absent a clear abuse of that discretion.”  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990) (citation omitted).  On appeal from a denial of a motion for a new trial, the verdict must stand unless, viewed in a light most favorable to the prevailing party, it is manifestly contrary to the evidence.  ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). 

            Denial of a motion for a judgment notwithstanding the verdict (JNOV) is a question of law, which this court reviews de novo.  Schendel v. Hennepin County Med. Ctr., 484 N.W.2d 803, 808 (Minn. App. 1992), review denied (Minn. July 16, 1992).  But this court must affirm the district court’s decision if, in the record, there is any competent evidence reasonably tending to sustain the verdict.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (quotation omitted).  Unless the evidence is practically conclusive against the verdict, this court will not set the verdict aside.  Id. (quotations omitted).  The evidence must be viewed in the light most favorable to the prevailing party, and this court must not set the verdict aside if it can be sustained on any reasonable theory of evidence.  Id.


            Appellant contends that the jury’s verdict is contrary to law and the evidence because, although uncontradicted, the jury did not credit his testimony or the testimony of his fiancée Heather Sloan, the driver of the vehicle in which he was a passenger.  Appellant and Sloan testified that the accident occurred when an unidentified vehicle suddenly braked without warning, and Sloan was forced to swerve to avoid the vehicle.  According to appellant, because his and Sloan’s testimony was not contradicted or impeached, the jury was required to accept their version of the facts and find the unidentified driver negligent.  We disagree.

             A jury is not compelled to believe a witness merely because his or her testimony is not contradicted or impeached.  Waite v. Am. Family Mut. Ins. Co., 352 N.W.2d 19, 22 (Minn. 1984); Costello v. Johnson, 265 Minn. 204, 211, 121 N.W.2d 70, 76 (1963); Stuttgen v. Gipe, 404 N.W.2d 10, 12 (Minn. App. 1987).  Further, although our record does not include a transcript of the jury instructions, respondent asserts and appellant does not dispute that the district court properly instructed the jury that (1) every driver has a duty to be aware of actual and potential hazards on a highway and exercise due care, see Minn. Stat. § 169.14, subd. 1 (2000); (2) it is unlawful to suddenly stop or decrease speed without a good reason or without giving an adequate warning, see Minn. Stat. § 169.19, subd. 6 (2000); and (3) it is unlawful to follow a vehicle at an unsafe distance or change lanes unsafely.  See Minn. Stat. §§ 169.18, subd. 8; 169.19, subd. 4 (2000). 

            Here, appellant and Sloan testified that Sloan, without reducing her speed, turned into the unidentified vehicle’s lane when that vehicle was two to three car lengths ahead of their vehicle.  But Sloan admitted that she knew she should stay about ten car lengths behind another vehicle on the highway.  And Sloan admitted that the accident would not have occurred if she had not been following so closely behind the unidentified vehicle.  Appellant and Sloan also admitted that they did not know why the unidentified vehicle braked.  We conclude that, even though neither appellant nor Sloan’s testimony was contradicted by other witnesses or impeached, a jury could reasonably find that the driver of the unidentified vehicle was not negligent. 


            Appellant also claims that the jury impermissibly speculated in concluding that the unidentified driver was not negligent.  We disagree.  Liability must be established by proof, not mere speculation or conjecture.  Cokley v. City of Otsego, 623 N.W.2d 625, 633 (Minn. App. 2001), review denied (Minn. May 15, 2001); Illinois Farmers Ins. Co. v. Brekke Fireplace Shoppe, Inc., 495 N.W.2d 216, 220 (Minn. App. 1993).  But direct evidence is not necessary; a jury can draw inferences from circumstantial evidence if those inferences are reasonably supported by available evidence.  Id. at 220-21. 

            Appellant claims that the jury impermissibly speculated that something might have suddenly appeared in front of the unidentified vehicle, causing it to brake.  Thus, the jury erroneously concluded that the unidentified driver was not negligent.  Appellant and Sloan testified that the lighting conditions were okay, the weather conditions were clear, and they did not observe any obstructions in front of the unidentified vehicle.  But appellant and Sloan also testified that they did not know why the unidentified vehicle braked.  Thus, under these facts, a jury could conclude that the unidentified driver was not negligent.

            In its order denying a new trial, or alternatively, JNOV, the district court found that the jury could have determined that the unidentified driver braked because of an obstruction unseen to appellant and Sloan because of the darkness.  As the district court stated:

Reaching such a conclusion is not “speculation.”  Instead, it is the placing of a requirement of proof upon the Plaintiff.  After all, if it would be speculation to conclude that something in the roadway caused the phantom vehicle’s driver to apply the brakes, it would be equal speculation to conclude that there was nothing in the road to cause the braking.  The jury could simply conclude that they did not know why the brakes were applied, but they did know that Ms. Sloan was negligent.

We agree that the jury did not impermissibly speculate in concluding that the driver of the unidentified vehicle was not negligent.  Therefore, we conclude that the district court did not err in denying appellant a new trial, or alternatively, JNOV.