This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-95-1741

Mai Choua Lee, a minor, by her mother

and natural guardian, Sor Yang,

Appellant,

vs.

St. Paul Water Utility,

Respondent.

Filed May 28, 1996

Affirmed

Peterson, Judge

Ramsey County District Court

File No. C9941248

T. Christopher Thao, Thao & Li, P.A., 7038 Brooklyn Boulevard, Minneapolis, MN 55429 (for Appellant)

Timothy W. Marx, St. Paul City Attorney, Lisa L. Veith, Assistant City Attorney, 550 City Hall and Courthouse, 15 W. Kellogg Boulevard, St. Paul, MN 55102 (for Respondent)

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

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

In this personal injury action, appellant Mai Choua Lee argues that (1) the district court abused its discretion in denying her motion for a new trial on grounds of attorney misconduct and (2) the verdict was not justified by the evidence. We affirm.

D E C I S I O N

1. The decision whether to grant a new trial because of attorney misconduct lies within the discretion of the district court. Johnson v. Washington County, 518 N.W.2d 594, 600 (Minn. 1994). "[T]he primary `consideration in determining whether to grant a new trial is prejudice.'" Id. (quoting Wild v. Rarig, 302 Minn. 419, 433, 234 N.W.2d 775, 786 (1975), cert. denied 424 U.S. 902 (1975)). The district court is in the best position to determine whether attorney misconduct prejudiced the jury. Id. at 601.

Lee was hit by a truck driven by a St. Paul Water Utility employee. Lee argues the city's attorney improperly questioned three police officers about the issuance of traffic tickets to the truck driver and the driver's fault. See Ramfjord v. Sullivan, 301 Minn. 238, 246, 222 N.W.2d 541, 546 (1974) (testimony regarding party's fault and issuance of traffic citations is improper). The city's attorney never asked the first officer any questions about fault or traffic tickets and Lee's objections to questions asked of the second officer were sustained before the officer answered. An allegation of error cannot be based on the admission of improper, prejudicial testimony that was never uttered by the witness. Id., 222 N.W.2d at 546.

Although the third officer did answer the city's questions about fault and the issuance of traffic tickets, we conclude the district court did not abuse its discretion in determining a new trial was not warranted. As the district court stated in its order and memorandum:

The testimony of the officers, neither of whom witnessed the occurrence, merely corroborated the inferences that could reasonably be drawn from one version of the evidence. Both credible eyewitness testimony and physical evidence supported the conclusion that the defendant was not at fault for this accident. The testimony of the officers on this issue, therefore, was not critical or dispositive. Additionally, the curative instruction was likely sufficient to counteract any possible prejudice.

In a closer case, such misconduct could require either a mistrial or the grant of a new trial. This is not such a case.

2. The district court's denial of a motion for a new trial on grounds that the verdict was not justified by the evidence will not be reversed on appeal absent an abuse of discretion. Cafferty v. Monson, 360 N.W.2d 414, 417 (Minn. App. 1985). When questions arise about the sufficiency of the evidence to support the verdict, we must view the evidence in the light most favorable to the verdict. Id. at 418. A new trial on grounds that the evidence does not support the verdict

should not be granted unless 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.

Lamb v. Jordan, 333 N.W.2d 852, 855-56 (Minn. 1983) (quoting LaValle v. Aqualand Pool, Co., 257 N.W.2d 324, 328 (Minn. 1977)).

Lee argues that because the driver was traveling at a speed that would not permit him to stop before hitting her, he was negligent as a matter of law. But

[t]he mere occasion of injury or mere proof of the happening of an accident is not enough to establish negligence. The jury determines the reasonable inferences from the facts and which witnesses are believable.

Johnson v. Waletzke, 448 N.W.2d 541, 542 (Minn. App. 1989), review denied (Minn. Jan. 12, 1990)(citations omitted).

Here, the evidence supports the jury's decision that the driver was not negligent. As Lee argues, there was testimony in the record that supported her claim that the driver was negligent. But other testimony at trial supported the driver's version of events--that he was driving very carefully down the street when Lee suddenly darted out in front of his truck and that there was nothing he could do to avoid hitting her. When the evidence is viewed in the light most favorable to the verdict, the verdict is not so contrary to the preponderance of the evidence that it implies that the jury failed to consider all the evidence or acted improperly in reaching its decision. Thus, the district court did not abuse its discretion in denying the motion for a new trial.

Affirmed.


Footnotes

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