This opinion will be unpublished and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

C2-96-1648

James Ammann, Trustee for the heirs

and next of kin of Jesse Ammann,

Appellant,

vs.

Richard Hansen, et al.,

Respondents,

Chris Madsen,

Respondent.

Filed April 29, 1997

Affirmed

Crippen, Judge

Pope County District Court

File No. C1-95-144

Warrenn C. Anderson, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, Chartered, 215 Atlantic Avenue, P.O. Box 527, Morris, MN 56267 (for Appellant)

Steven R. Schwegman, Mark R. Azman, Quinlivan, Sherwood, Spellacy, & Tarvestad, P.A., Suite 600, 400 South First Street, P.O. Box 1008, St. Cloud, MN 56302 (for Respondents Richard Hansen and Chad Hansen)

Chris Madsen, 310 West 20th Avenue #212, Alexandria, MN 56308 (Respondent Pro Se)

Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.

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

CRIPPEN, Judge

Appellant seeks a new trial after a verdict that the driver of a truck was not at fault for the death of a child struck by the truck as it was backing out of a driveway. We affirm.

FACTS

On June 1, 1992, in Big Stone City, South Dakota, 20-month-old Jesse Ammann was killed when struck by a pickup truck driven by Chad Hansen and owned by his father, Richard Hansen. Ammann had been in the care of Chris Madsen while Madsen, using the child's wagon, was walking his paper route, and Hansen had picked them up in his truck and brought them to Madsen's mobile home. After Hansen parked in the Madsen's driveway, his passengers exited the vehicle. The gravel driveway was approximately 18 feet long by 15 feet wide, adjoining a 24-foot gravel road. The pickup was just under 18 feet in length. While Madsen stood near his home talking to a neighbor, Hansen began to back the truck out of the driveway. Because a car was parked directly opposite the driveway, making it hard for Hansen to get into the road, he began to maneuver the truck slightly to his right so as to avoid the car and back into a driveway across the roadway. While moving slowly, the truck hit Ammann. Ammann's body was found approximately 18 feet from the end of the driveway.

Appellant James Ammann brought a wrongful death suit on behalf of his son, Jesse, against respondents Madsen, Chad Hansen, and Richard Hansen. After the trial court submitted the matter to the jury on special interrogatories, the jury found that neither Madsen nor Chad Hansen was negligent and dismissed the claim. Appellant brought a motion for a new trial or judgment notwithstanding the verdict, which the trial court denied. His appeal is singularly directed to his claim that Chad Hansen drove the truck negligently.

D E C I S I O N

1. Weight of the Evidence

Ordinarily, absent a clear abuse of its discretion, we will not disturb the trial court's decision to deny a new trial. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). Where the trial court exercises no discretion but instead bases its order upon an error of law, a de novo standard of review applies. Id. On a new trial motion, the jury's verdict must stand unless it is "manifestly and palpably contrary to the evidence" when viewed in the light most favorable to the verdict. ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

Appellant contends that the record contains insufficient evidence to support the jury's finding that Chad Hansen was not negligent. The trial court concluded that the evidence would permit a finding of no fault because Hansen (1) looked behind him before backing up, (2) thought he saw Jesse Ammann standing near Madsen, some distance from the truck, just before he began to back up, (3) backed the truck up slowly, and (4) never saw Ammann behind the truck.

Appellant contends that respondents' accounts of the accident are untrustworthy because if both Hansen and Madsen correctly testified about where they last saw Ammann before the accident, there would not have been sufficient time for Ammann to run behind the truck. But this view of the evidence does not establish that Ammann was located so that Hansen saw or should have seen him. If the evidence creates an inference of negligence, it is as to Madsen, who probably had a duty to account for the whereabouts of the child and to protect him from danger. Also, both Hansen and Madsen were unsure of the exact duration between the last time they definitely saw Ammann and the time of the accident.

Appellant also alleges that the jury could not reasonably have found that Hansen exercised due care because he knew a small child was present while he operated a motor vehicle. A jury may consider the greater hazard created by the presence of children in determining whether a defendant exercised reasonable care under the circumstances. Brenna v. Melvie, 304 Minn. 426, 429-30, 231 N.W.2d 306, 309 (1975). But the trial court adequately instructed the jury on the special hazard presented by children. Thus, the jury considered the heightened duty a person owes to children yet still found that Hansen exercised due care.

Viewing the evidence in the light most favorable to the verdict, we conclude that appellant has not shown that the jury's verdict is "manifestly and palpably contrary to the evidence." ZumBerge, 481 N.W.2d at 110.

2. Jury Instruction

Trial courts have considerable latitude in selecting the language in jury instructions, and these decisions will not be reversed unless they constitute an abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). A jury instruction is sufficient "if it fairly lays down the law of the case and conveys a clear and correct understanding of the law to the jury." Sandhofer v. Abbott-Northwestern Hosp., 283 N.W.2d 362, 367 (Minn. 1979). Minnesota courts prefer general charges, where practical, "to avoid overemphasis of one side of the case and jury confusion." Id.

Although the trial court applied Minnesota law, appellant argues that the court should have instructed the jury on a South Dakota traffic statute to establish the standard of care. The South Dakota statute provides that a driver cannot back a vehicle unless such movement can be made "with safety" and without interfering with traffic. S.D. Codified Laws § 32-30-20 (Michie 1989). The trial court rejected appellant's request because it "added nothing" to its general negligence instructions.

Appellant has not shown that the meaning of "safety," as employed by the South Dakota statute, differs from Minnesota's standard of care for negligence. Consistent with the reasoning of the trial court, we observe that the South Dakota statute merely begs the question already defined: Namely, what is safety? What is negligence? Considering the trial court's wide discretion in selecting jury instructions and Minnesota's preference for general charges, we conclude that the trial court acted within its discretion by instructing the jury on the general negligence standard and avoiding possible jury confusion on the impact of the statute, requiring an additional explanation that the statute created no duty of care greater than the duty of due care. The trial court's general negligence instructions stated an accurate description of the law.

3. Expert Witness

Finally, appellant raises two evidentiary issues. He first alleges that the trial court should not have admitted the testimony of the Hansens' expert witness, an accident reconstructionist, because he based his opinions on insufficient factual data.

The admission of expert testimony lies within the sound discretion of the trial court, and the reviewing court gives the trial court "wide latitude" in determining whether a sufficient foundation exists on which an expert may state an opinion. Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445-46 (Minn. 1990). Even if an appellate court would have reached a different conclusion as to the sufficiency of the foundation, it will not reverse the decision of the trial court absent a clear abuse of discretion. Id.

When an expert is qualified and the expert's opinion has a relevant basis, the jury decides the credibility and weight of the testimony. Behlke v. Conwed Corp., 474 N.W.2d 351, 357 (Minn. App. 1991) (finding abuse of discretion where trial court excluded expert testimony on causation), review denied (Minn. Oct. 11, 1991). Accident reconstruction evidence may be admitted if the evidence is sufficient to avoid speculation, otherwise gives a "reasonably complete and accurate reconstruction," and, "more importantly," assists the jury. Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977) (quoting LeMieux v. Bishop, 296 Minn. 372, 378, 209 N.W.2d 379, 383 (1973)).

The record reveals that the expert based his opinions on sufficient factual data. The trial court limited his testimony to his opinions regarding the speed of the truck and Hansen's field of vision, and he examined the police reports, witness statements, depositions, accident scene photographs, and the accident scene itself. The expert's opinions were not speculative. Although the expert's tests contained several shortcomings, appellant extensively cross-examined him about his data and opinions. Thus, the trial court properly allowed the jury to decide the credibility and weight of the expert's testimony. Behlke, 474 N.W.2d at 357.

In addition, the expert's testimony likely assisted the jury. Where eyewitness testimony is nonexistent or of little aid to the jury, an expert witness may give opinion testimony regarding the circumstances of an accident. LeMieux v. Bishop, 296 Minn. 372, 377, 209 N.W.2d 379, 382-83 (1973) (admitting expert testimony as to the speed of a motor vehicle in an accident); Behlke, 474 N.W.2d at 357 ("It is better to receive weak testimony than leave the jurors to make findings or testimony based on a thin perception or sheer speculation."); Polacec v. Voigt, 385 N.W.2d 867, 870 (Minn. App. 1986) (admitting expert testimony of accident reconstructionist where the "only eye witnesses were admittedly uncertain about what actually happened"), review denied (Minn. June 19, 1986). Without any eyewitnesses to this accident, the expert provided the jury with some guidance on the truck's speed and Hansen's field of vision. Thus, the trial court did not abuse its broad discretion by allowing the expert's opinion testimony.

Appellant also asserts that the trial court abused its discretion by allowing the introduction of an illustrative exhibit of the accident scene. Specifically, appellant alleges that the trial court erred by admitting a diagram used by the expert to illustrate the accident scene, arguing that the diagram contained many shortcomings and inconsistencies.

The use of illustrative evidence lies within the discretion of the trial court and the test is whether "the testimonial aid will likely assist the jury in understanding the witness's testimony." State v. Eggert, 358 N.W.2d 156, 161 (Minn. App. 1984) (citing Timmerman v. March, 199 Minn. 376, 381, 271 N.W. 697, 700 (1937)). A party is not entitled to a new trial on grounds of improper evidentiary rulings unless the complaining party can demonstrate prejudicial error. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

The trial court did not abuse its discretion. The admission of the diagram likely assisted the jury because the jurors could have used it as a reference for the expert's testimony concerning Hansen's field of vision. Eggert, 358 N.W.2d at 161. Furthermore, the record indicates that appellant thoroughly and skillfully cross-examined the expert about the inaccuracies of the exhibit. By bringing the diagram's errors to the attention of the jury, appellant reduced any perceived prejudice caused by its admission.

Because the trial court did not abuse its discretion and appellant has not established that the trial court's rulings prejudiced him, appellant is not entitled to a new trial.

Affirmed.