This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-860

Sharlette Petrik,

Appellant,

vs.

James Stattmiller, et al.,

Respondents.

Filed January 28, 1997

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. PI9414339Q

Alfred Stanbury, Stanbury Law Firm P.A., 2209 St. Anthony Parkway, Minneapolis, MN 55418 (for Appellant)

Thomas H. Crouch, Kerry M. Evensen, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondents)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge, and Harten, Judge.

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

KALITOWSKI, Judge

Appellant Sharlette Petrik appeals the trial court's denial of her motions for: (1) JNOV on the issue of the permanency of her knee injury; and (2) a new trial on the issue of damages. Respondent Seth Stattmiller argues the trial court erred in granting a new trial on the issue of liability. We affirm.

D E C I S I O N

I.

Judgment notwithstanding the verdict "may be granted only when the evidence is so overwhelming on one side that reasonable minds cannot differ as to the proper outcome." Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983) (citation omitted). When applying this standard, a court must take into account all of the evidence, including that favoring the verdict; the evidence must be viewed in the light most favorable to the verdict, and the court may not weigh the evidence or judge the credibility of the witnesses. Id.

There is ample evidence that would allow reasonable minds to differ as to the permanency of Petrik's injury. Dr. Tambornino testified, within a reasonable degree of medical certainty, that the injury Petrik sustained as a result of the accident did not result in any permanent disability. In addition, Dr. Bachman could not state, within a reasonable degree of medical certainty, whether Petrik had sustained any permanent injury from the accident. Further, Dr. Norgard testified that he could not say, within a reasonable degree of medical certainty, whether Petrik's injury would place any type of limitations on her in the future or would require any reconstructive surgery. We therefore conclude the trial court did not err in denying Petrik's motion for JNOV on the issue of the permanency of her knee injury.

II.

"The decision to grant or deny a new trial on the basis of inadequate damages is within the broad discretion of the trial court." Peterson v. Independent Sch. Dist. No. 657, 477 N.W.2d 757, 760 (Minn. App. 1991) (citation omitted). An appellate court should reverse "only where the record reflects that the damage award is so inadequate that it must have been the result of passion or prejudice." Id. A damage verdict may only be disturbed if it is "manifestly and palpably contrary to the evidence." Krueger v. Nordstrom, 367 N.W.2d 671, 674 (Minn. App. 1985) (citation omitted). In reviewing the sufficiency of a damage award, the court must consider the evidence in the light most favorable to the verdict. Rayford v. Metropolitan Transit Comm'n, 379 N.W.2d 161, 165 (Minn. App. 1985).

Petrik argues the damage award is so inadequate that it must have been the result of passion or prejudice and that it is manifestly and palpably contrary to the evidence. We disagree. The jury awarded $2,500 for past wage loss and nothing for future wage loss. This is consistent with the loss of wages for approximately six weeks, from the date of the accident to the beginning of December 1993, when Petrik began working full time again. Dr. Tambornino testified that the type of injury Petrik sustained would result in a short-term disability of only a few weeks and that the injury did not result in a permanent disability. Moreover, other doctors who examined Petrik, could not state, within a reasonable degree of medical certainty, that the accident resulted in any permanent disability. Therefore, there is evidence to support the jury's determination that Petrik would not incur any future wage loss.

The jury also awarded $5,000 for past pain and suffering and nothing for future pain and suffering. This award is supported by the testimony of Dr. Tambornino that Petrik suffered a knee strain that healed within a few weeks and resulted in no permanent disability. Drs. Bachman and Sager also testified that Petrik only suffered a knee strain as a result of the accident. Finally, the jury's award of $10,000 for medical expenses was stipulated to by the parties. Because the damage verdict is not manifestly or palpably contrary to the evidence or so inadequate that it must have been the result of passion or prejudice, we conclude the trial court did not abuse its discretion in denying a new trial on the issue of damages.

III.

Stattmiller argues the trial court erred in granting Petrik's motion for a new trial on the issue of liability. We disagree.

The trial court

is granted the broadest possible discretion to determine whether a new trial is necessary and, absent a clear abuse of that discretion and the existence of most unusual circum-stances, its decision will not be reversed.

Krueger, 367 N.W.2d at 674 (citations omitted). The trial court is in the best position to determine the effect of jury instructions and the error in the instructions on the jury. Id. at 675.

The trial court granted a new trial because it failed to instruct the jury that speeding in a municipality is negligence per se and that a driver who speeds in a municipality forfeits the right-of-way.

In Butler v. Engel, 243 Minn. 317, 68 N.W.2d 226 (1954), the court stated:

Of course, where the evidence is in conflict as to whether or not there was a violation of the speed limit, a jury question is presented. The jury should, however, be instructed that, if they find that the defendant was traveling at a speed in excess of the statutory speed limit, they must find him guilty of negligence.

Id. at 338-39, 68 N.W.2d at 239. In Leiknes v. Witte, 259 Minn. 439, 107 N.W.2d 870 (1961), the supreme court affirmed the trial court's grant of a new trial because it failed to instruct the jury that if it found the defendant guilty of speeding, it must find him guilty of negligence.

Stattmiller argues that there is no competent evidence indicating he was speeding. We disagree. Based on the testimony of Todd Estrem the trial court determined that whether Stattmiller was speeding was in dispute. In addition to Estrem's testimony, the jury could have considered all the circumstances of the accident in determining whether Stattmiller was speeding.

Stattmiller further argues that even if the trial court erred in its jury instructions, the error was not prejudicial because the jury found Stattmiller negligent. We disagree. Because the jury only found Stattmiller 30 percent negligent, the possibility exists that if instructed properly, the jury may have assigned a higher percentage of negligence to Stattmiller.

Because the trial court's failure to instruct the jury on speeding as negligence per se is a fundamental error requiring a new trial, we need not address whether failing to instruct the jury on forfeiture of the right-of-way was also a fundamental error. Accordingly, we conclude the trial court did not err in granting a new trial on the issue of liability.

Finally, Petrik requests that we consider other alleged errors by the trial court. Because Petrik was granted a new trial on the issue of liability, we decline to address the issues she raises concerning evidentiary rulings and alleged trial errors.

Affirmed.