This opinion will be unpublished and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

C9-96-2148

William Anthony Everhardt, et al.,

Respondents,

vs.

Terry Brian Dietz, et al.,

Appellants.

Filed July 15, 1997

Affirmed

Willis, Judge

Mille Lacs County District Court

File No. C995812

Sharon L. Van Dyck, Candace L. Dale, Schwebel, Goetz, Sieben & Moskal, P.A., 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Respondents Everhardt)

Michael D. Barrett, Cousineau, McGuire & Anderson, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416 (for Respondent Great West Casualty Company)

John H. Erickson, Erickson Law Offices, 319 South Sixth Street, P.O. Box 525, Brainerd, MN 56401 (for Appellants)

Considered and decided by Huspeni, Presiding Judge, Willis, Judge, and Holtan, Judge.[*]

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

WILLIS, Judge

A jury found that appellant Terry Dietz was negligent in a truck accident that caused damages to respondent William Everhardt. Dietz challenges the district court's denial of his posttrial motions for judgment notwithstanding the verdict or a new trial, arguing that (1) the evidence does not support the jury's findings, (2) the district court erred in instructing the jury, and (3) the jury awarded excessive damages. We affirm.

FACTS

In foggy conditions on the morning of June 6, 1994, Everhardt was driving westbound through Foreston on Highway 23 in a truck tractor pulling a 40-foot flatbed trailer. Dietz, driving a 40-foot creamery tanker, stopped at a stop sign on Main Street in Foreston before turning left onto Highway 23 eastbound. When Everhardt crossed County Road 18, which is approximately 360 feet from Main Street, he saw Dietz's tanker in his lane of traffic, started braking, and then swerved to the right to go around Dietz's tanker. Everhardt's truck flipped over in the ditch near the intersection of Highway 23 and Main Street. As a result of the accident, Everhardt sustained soft tissue injuries to his neck, upper back, and right shoulder.

By special verdict, the jury found both parties negligent in operating their vehicles, but found that only Dietz's negligence was a direct cause of the accident. The jury awarded Everhardt (1) $4,335.32 for loss of earnings, (2) $8000 for pain, disability, and emotional distress up to the date of the verdict, (3) $25,000 for loss of earning capacity, (4) $50,000 for medical expenses, and (5) $10,000 for pain, disability, and emotional distress. Dietz filed posttrial motions for judgment notwithstanding the verdict or, in the alternative, a new trial. The district court denied Dietz's motions, and he appeals.

D E C I S I O N

The decision whether to grant a judgment notwithstanding the verdict (JNOV) is a question of law. Edgewater Motels v. Gatze, 277 N.W.2d 11, 14 (Minn. 1979). This court reviews questions of law de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

A motion for judgment notwithstanding the verdict admits every inference reasonably to be drawn from the evidence as well as the credibility of the testimony for the adverse party. Unless we are able to determine that the evidence is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict, the trial court's order denying the motion for judgment notwithstanding the verdict should stand.

Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975).

A new trial may be granted when the verdict is not supported by the evidence, errors of law occurred at the trial, or the damages awarded are excessive. Minn. R. Civ. P. 59.01. "On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a 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).

1. Jury Verdict.

Dietz argues that the district court erred in denying his JNOV motion because the record does not support the jury's findings that he was negligent and that Everhardt's negligence was not a direct cause of the accident. The special verdict form does not show the grounds for the jury's findings, but "[i]f answers to special verdict questions can be reconciled in any reasonable manner consistent with the evidence and its fair inferences, the denial of a new trial must stand." Carnahan v. Walsh, 416 N.W.2d 187, 189 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988).

Everhardt identifies three grounds on which the jury's finding that he was negligent could have been based: (1) his excessive speed for the conditions[1]; (2) not braking fully; or (3) steering right toward the ditch.[2] The verdict must stand if there is any basis for finding Everhardt's negligence was not a direct cause of the accident. See id. The evidence shows that if Everhardt had immediately applied his brakes fully, the accident could have been avoided. Moreover, Everhardt concedes that if the jury found him negligent because he steered right, that negligence would have been a direct cause of the accident. Nevertheless, the verdict must stand because the jury could have concluded that Everhardt was negligent in not driving at a speed appropriate for the conditions, but still have determined that his speed was not a direct cause of the accident.

Everhardt testified that when he first saw Dietz's tanker in the intersection, Dietz's turn signal was not flashing, and Everhardt thought that Dietz was driving a gasoline tanker and was crossing the intersection to a service station on the other side of Highway 23, rather than turning onto the highway eastbound. Dietz testified that he first noticed the headlights of Everhardt's truck when it was a half-block away. At that time the front of Dietz's truck had just crossed the highway center line, and his tanker trailer was completely blocking Everhardt's lane of traffic. The jury could have concluded that even if Everhardt had been driving more slowly, he might still have been uncertain that he could stop in time and would have steered right to avoid a potentially disastrous collision with what he thought was a gasoline tanker.

Dietz claims that if the jury found that Everhardt was not driving at an appropriately reduced speed, Dietz, as a matter of law, was not negligent because Everhardt forfeited his right-of-way. See Minn. Stat. § 169.20 (1996). But even if Dietz had the right-of-way, the jury could have found him negligent for failing to keep a proper lookout. See Norton, 236 Minn. at 243, 53 N.W.2d at 35 (concluding that whether keeping proper lookout would have given driver opportunity to avert collision was jury question).

The jury's findings do not warrant a new trial because the jury's answers to the special verdict questions can be reconciled with the evidence.

2. Jury Instructions.

The district court has broad discretion in selecting jury instructions, and we will not reverse the district court's decision absent an abuse of that discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). Errors in instructions do not warrant a new trial unless they destroy the substantial correctness of the charge, cause a miscarriage of justice, or result in substantial prejudice. D.H. Blattner & Sons, Inc. v. Firemen's Ins. Co. of Newark, 535 N.W.2d 671, 675 (Minn. App. 1995), review denied (Minn. Oct. 18, 1995).

A. Emergency doctrine.

Over Dietz's objection, the district court instructed the jury on the emergency doctrine:

A person confronted with an emergency through no negligence of his own, who in attempt to avoid the danger does not choose the best or safest way, is not negligent because of such choice unless the choice was so hazardous that a reasonable person would not have made it under like circumstances.

Dietz argues that the instruction was inappropriate because Everhardt contributed to the accident by speeding, failing to use his brakes, and steering right. We disagree.

The party seeking to invoke the emergency doctrine must show that his own negligence did not contribute to the perilous situation. Fleahman v. Lehman, 388 N.W.2d 417, 419 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986). However, the instruction

should always be given where it is consistent with the theory of one of the parties to the action and where the evidence submitted by such party would sustain a finding that he had been confronted with a sudden peril or emergency and acted under its stress.

Gran v. Dasovic, 275 Minn. 415, 419, 147 N.W.2d 576, 579 (1966).

The jury could have believed that Dietz created the emergency by failing to keep a proper lookout under foggy conditions. Dietz testified that, while he could see the traffic light at County Road 18 from Main Street, he did not notice Everhardt's headlights until Everhardt was approximately a half-block away. Everhardt testified that he could see Dietz at Main Street from County Road 18.

There also was evidence from which the jury could have concluded that Everhardt was not negligent in creating the emergency. The jury could have found that (1) Everhardt was not negligent in driving 40 miles per hour because he was driving under the 50 mile-per-hour posted speed limit (there was testimony that immediately before the collision he was proceeding at approximately the same speed as other traffic) and (2) Everhardt was not negligent in not braking fully at once because it was not immediately clear that Dietz was turning, rather than just crossing the highway.

Finally, the jury could have concluded that Everhardt's decision to steer to the right to avoid Dietz was reasonable under the circumstances. Everhardt testified that he thought Dietz was driving a gasoline tanker, and Dietz testified that he thought that Everhardt was going to hit him. Moreover, expert witness William Fath testified that he instructs truck-driving students that driving to the right off the road is a standard collision-avoidance technique. See Byrns v. St. Louis County, 295 N.W.2d 517, 519-20 (Minn. 1980) (concluding that district court erred in refusing to give emergency rule instruction where jury could have found that skid prior to impact was not driver's fault, and it was fact question whether driver's reaction to emergency was unduly hazardous). The district court did not err in instructing the jury on the emergency doctrine.

B. Superseding cause.

In instructing the jury on direct cause, the district court stated:

A direct cause is a cause which has a substantial part in bringing about the harm * * * either immediately or through happenings which follow one after another.

There may be more than one direct cause of an accident. When the effects of negligence of each of two or more persons actively work at substantially the same time to cause the accident, without either cause being a superseding cause, each may be a direct cause of the accident.

(Emphasis added.) It is undisputed that the emphasized portion is not to be included unless the court also gives the full instruction on superseding cause. However,

[n]o 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.

Dietz contends the reference to superseding cause without the superseding cause instruction is fundamental error. We disagree. The jury in this case received a correct and thorough set of instructions on the law of negligence and was instructed that it could find causation by both parties. The reference to superseding cause in the causation instruction is not reversible error. See Bossons v. Hertz Corp., 287 Minn. 29, 37, 176 N.W.2d 882, 887 (1970) (concluding that district court's submission of res ipsa loquitur instruction to jury was harmless error because "[i]n the context of the entire charge, the specific instruction on res ipsa loquitur became a mere statement of an abstract principle of law, even though arguably not pertinent to the case").

C. Lookout/right-of-way.

The district court instructed the jury:

The fact that there is fog in the area of an intersection does not excuse a driver who fails to maintain a proper lookout and to yield the right-of-way to an oncoming vehicle.

In Tauber v. Buffalo Lake Pub. Sch. Dist., 283 Minn. 383, 168 N.W.2d 327 (1969), the supreme court concluded that the defendant bus driver's negligence in failing either to yield the right-of-way or to maintain a proper lookout must have been the proximate cause of the plaintiff's collision with the bus, and the existence of fog did not excuse that negligence. Id. at 385-86, 168 N.W.2d at 328-29. Dietz argues that Tauber is procedurally distinguishable because the district court there gave the jury standard instructions on negligence and the district court's specific instruction here unfairly draws attention to Everhardt's theory of the case. The district court did not abuse its discretion in giving the disputed instruction because it is an accurate statement of the law under Tauber. See id. at 386, 168 N.W.2d at 329.

3. Damages.

Dietz contends the district court erred in not setting aside the jury award for Everhardt's future medical expenses and loss of earning capacity. The district court's decision whether to grant a new trial on the ground of excessive damages will not be overturned absent an abuse of discretion. Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984).

A. Future medical expenses.

Dietz argues that the evidence does not support the jury award of $50,000 for future medical expenses. It is undisputed that Everhardt sustained injuries to his neck, upper back, and right shoulder as a result of the accident. A chiropractor testified that he cannot cure Everhardt, but it will be necessary to continue to treat him on a periodic basis to reduce his symptoms. He estimated that Everhardt will continue to need 30 visits per year at $34 per visit. The jury was told that Everhardt has a life expectancy of 39 more years. The jury could have found that Everhardt will require chiropractic treatment that will cost $39,780 (39 years x 30 visits x $34).

In addition, an orthopedic surgeon testified that Everhardt could benefit from an operation on his right shoulder, and Everhardt testified that he planned to undergo that surgery. The surgeon estimated that the operation would involve a surgical fee of approximately $1600 to $2600 and that related fees would be approximately two to three times that amount. The jury could have found that shoulder surgery will cost Everhardt up to $10,400 ($2600 x 3 + $2600). The estimated costs of chiropractic care and shoulder surgery support the jury's award for future medical expenses.

B. Loss of earning capacity.

The jury awarded Everhardt $25,000 in damages for loss of earning capacity.

The impairment of earning capacity is an item of general damages which does not require specific proof of actual earnings or income either before or after the injury. Because future damages such as this are impossible to prove with absolute certainty, the rule is that recovery may be had if future damage is reasonably certain to occur.

Kwapien v. Starr, 400 N.W.2d 179, 183 (Minn. App. 1987) (citation omitted). Recovery for loss of earning capacity "is based on factors including the plaintiff's age, life expectancy, health, occupation, talents, skill and training." Sylvester v. Gleason, 371 N.W.2d 573, 575 (Minn. App. 1985).

The orthopedic surgeon testified that Everhardt would probably miss six to eight weeks of work if he undergoes shoulder surgery. It is undisputed that Everhardt was unable to work for 22 days after the accident, and his net loss in earnings for that period was $197.06 per day. The jury could have found that Everhardt's net loss in earnings from having shoulder surgery will be $11,035.36 ($197.06 x 56 days). Moreover, Everhardt testified that he quit his job with Aurora Transport following the accident because that job involved unloading duties and bumpy routes that caused him to have headaches and arm soreness and that he has told "white lies" about the extent of his injuries to obtain other jobs. The jury could have believed that Everhardt will have to stop driving a truck at some point because of his injuries. There is sufficient evidence to support the jury award of $25,000 for Everhardt's loss of earning capacity.

Affirmed.

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

[ ]1 The jury could have found Everhardt negligent in driving too fast for the foggy conditions, even though he was driving approximately 40 miles per hour in a 50 mile per hour zone. Because Dietz was turning left from a stop sign onto Highway 23, he was required to yield the right-of-way to an approaching vehicle that was sufficiently close to the intersection to constitute an immediate hazard. Minn. Stat. § 169.20, subds. 2, 3 (1996). However, every driver must drive at an "appropriate reduced speed" when approaching an intersection and when special hazards exist due to weather conditions. Minn. Stat. § 169.14, subd. 3 (1996). "The driver of any vehicle traveling at an unlawful speed shall forfeit any right-of-way which the driver might otherwise have." Minn. Stat. § 169.20, subd. 1 (1996). If the jury found Everhardt negligent because he was driving too fast for the foggy conditions, he was negligent in driving at an unlawful speed. See Norton v. Nelson, 236 Minn. 237, 244, 53 N.W.2d 31, 36 (1952) (concluding that failure to drive at "appropriate reduced speed" as required by section 169.14, subdivision 3, constitutes driving at unlawful speed under section 169.20, subdivision 1); Minn. Stat. § 169.96 (1996) (providing that violation of traffic statute is prima facie evidence of negligence).

[ ]2 Dietz contends Everhardt is bound by his posttrial argument that there were only two grounds on which the jury's finding that he was negligent could have been based. See Bank of Pine Island v. Holst, 298 Minn. 563, 564, 215 N.W.2d 61, 62 (1974) (concluding that case on appeal will be considered in accordance with theories on which it was pleaded and tried). However, all three theories of negligence Everhardt identifies on appeal are consistent with the parties' arguments at trial.