This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




Brian Rogers, through his general

guardian, Phillip A. Rogers, and

Phillip A. Rogers individually,



Olson Transport, Inc., et al.,


Charles Henry Rogers,


Filed December 30, 1997


Norton, Judge

Dakota County District Court

File No. 19-C7-95-007735

Richard L. Gill, Chris A. Messerly, Robins, Kaplan, Miller & Ciresi L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402 (for Respondents Brian Rogers and Phillip A. Rogers)

Eric J. Magnuson, Jennifer A. Kraft, Rider, Bennett, Egan & Arundel, LLP, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402


Gene P. Bradt, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Drive, Suite 250, St. Paul, MN 55112 (for Appellants Olson Carriers, Inc., Olson Transport, Inc., and Duane Paul Matushak)

Chad McKenney, Donohue McKenney, LTD., 600 Lumber Exchange, 10 South Fifth Street, Minneapolis, MN 55402 (for Respondent Charles Henry Rogers)

Considered and decided by Randall, Presiding Judge, Norton, Judge, and Forsberg, Judge.[*]



In challenging the denial of their motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, appellants argue that the evidence was insufficient to support the jury verdict. We detect no error because, according to the record, the evidence was sufficient to support the jury's verdict. We affirm.


On November 3, 1990, respondent Brian Rogers was seriously injured when his brother, respondent Charles Henry Rogers, lost control of the truck and collided head-on with a tractor trailer. Brian Rogers and his father, Phillip Rogers, commenced a lawsuit against the driver of the semi, appellant Duane Matushak, appellants Olson Transport, Inc., and Olson Carriers, Inc., and Charles Rogers.

Immediately before the accident, Matushak first noticed the driver's side of the Rogers' pickup truck and mistakenly thought it was making a left-hand turn onto Concord from the stop sign at eastbound 75th Street. Matushak testified he saw the pickup fishtail three to four times before impact, not counting the initial fishtail at the intersection of

Concord and 75th Street. In an effort to avoid the collision he pulled the semi partly onto the shoulder, but he failed to apply his brakes until approximately 10 feet before impact.

Dr. David Hamerski, an experienced accident reconstructionist, calculated the distance between the intersection and the point of impact at approximately 425 feet. Hamerski further estimated that it took the pickup 8.6 seconds to cover the 425 feet. These conclusions were based, in part, on Matushak's testimony.

At trial, witnesses presented conflicting testimony about when the pickup began to fishtail. Matushak testified that the pickup did not continually fishtail; rather, it straightened out prior to impact. Matushak also testified that the pickup suddenly came into his lane. In a recorded statement given after the accident, Charles Rogers estimated that he did not start to fishtail until he was 200 or 300 feet from the semi. Hamerski testified it was unlikely that the pickup completely returned to the northbound lane between the first 120-180 feet and the last 100 feet of the pickup's fishtailing.

At the end of the trial, the jury apportioned 30% of the negligence to appellants and 70% to Charles Rogers. Appellants moved for JNOV or, in the alternative, a new trial. The trial court held the evidence was sufficient to support the verdict and denied appellants' motion.


The decision to grant JNOV is a question of law. Boschee v. Duevel, 530 N.W.2d 834, 842 (Minn. App. 1995), review denied (Minn. June 14, 1995). Regarding the issue of negligence, a trial court does not err in denying a motion for JNOV where conflicting, credible testimony is presented. Id. In situations where expert witnesses offer conflicting opinions, it is up to the jury "as the ultimate trier of fact, to consider their qualifications and determine the weight to be given their opinions." McKay's Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 146 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992).

On the other hand, a motion for a new trial "presents a factual question, where the reviewing judge may properly weigh the evidence." MacBeth v. Mondry, 392 N.W.2d 24, 27 (Minn. App. 1986) (quoting Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983)). Thus, the standard is less demanding. M.L. v. Magnuson, 531 N.W.2d 849, 856 (Minn. App. 1995), review denied (Minn. July 20, 1995). A new trial will be granted if:

[T]he 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, 333 N.W.2d at 855-56. The question of negligence is for the jury to determine; their verdict will stand unless no evidence reasonably supports it or it is clearly contrary to the evidence. Hennen v. Huff, 388 N.W.2d 408, 411 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).

Recently, this court affirmed a jury verdict apportioning 5% fault against the driver of a vehicle who was struck in his lane of traffic by a vehicle that skidded out of control. Berg v. Nelson, 559 N.W.2d 722, 723 (Minn. App. 1997), review denied (Minn. May 13, 1997). In affirming the denial of defendant's motion for JNOV or a new trial, this court relied on this evidence: (1) testimony that defendant saw the oncoming car as it began to fishtail and took no evasive action; (2) expert testimony that defendant had time to take effective, evasive action; (3) witness testimony that defendant should have reacted; and (4) the fact that defendant admitted seeing the oncoming car enter the median. Id. at 724.

The facts in the present case are similar to the facts presented in Berg and arguably present a more compelling case supporting the jury's apportionment of fault against appellants than the evidence presented in Berg.

First, unlike the driver in Berg, Matushak was a professional truck driver who received formal training in defensive driving. He learned to be aware of approaching traffic. He had a clear view of the Rogers' pickup truck. More importantly, he testified he saw the pickup fishtail three to four times before impact. Nevertheless, in spite of what Matushak had seen, and the adverse weather conditions, he continued at a speed of 35 m.p.h. until ten feet before impact.

Next, Hamerski's testimony established that Matushak had 8.6 seconds to react to the situation, while the defendant in Berg had only 3.27 seconds. Id. Appellants, however, argue Hamerski's opinion is based on three unsupported assumptions. First, Hamerski was not justified in assuming the brown pickup truck Matushak described was the Rogers' vehicle. Although the pickup was maroon, not brown, the jury could have easily inferred that the maroon pickup appeared brown to Matushak, considering he was over 800 feet away and it was snowing. Second, appellants argue that the evidence failed to prove the vehicle Matushak described as turning was actually fishtailing. Matushak testified, however, that he first saw a lateral view of the driver's side of the pickup and mistakenly thought it had pulled out from the stop sign on 75th. Third, appellants contend that the evidence fails to support the claim that the vehicle "continued" to fishtail for approximately 400 feet until the point of impact. Appellants are splitting hairs by attacking the word "continually." Matushak testified that he observed the truck fishtail three to four times before impact, not counting the misinterpreted fishtail at 75th Street. This accident happened within a matter of seconds. Whether the fishtailing was uninterrupted, repeated, unbroken, or continuous, the evidence supports the jury's assessment of the situation.

Finally, the way in which Matushak reacted to the situation supports the jury's verdict. According to the jury instructions, Matushak was under a duty to maintain a reasonable lookout, restrict his speed in order to avoid colliding with another vehicle, and reduce his speed when severe weather conditions existed. In light of the evidence that Matushak was a professional truck driver who received formal training in defensive driving, yet failed to slow his speed in the severe weather conditions present here, the jury reasonably assumed Matushak should have reacted with more caution.

The jury could have reached various conclusions in this case, depending on whose testimony they credited and disbelieved. See id. at 724-25 (determining credibility and weighing evidence are within sole province of jury, based on evidence presented). When viewing the evidence in the light most favorable to the jurors' findings, it is apparent that the evidence was not overwhelmingly on one side and supported the jury's verdict apportioning 30% fault against appellants. No basis for reversal exists when the jury has simply taken a different view of the evidence than appellants would have taken. As such, the trial court did not err in denying appellants' motion for JNOV or, in the alternative, a new trial.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art VI, §2.