This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




Donna Marie Perry,



Francis Caughey,


Filed January 15, 1998

Affirmed in part, reversed in part, and remanded

Forsberg, Judge

Washington County District Court

File No. C1-95-004039

David O. N. Johnson, Milavetz, Gallop & Milavetz, P.A., 6500 France Avenue South, Edina, MN 55435 (for Appellant)

Jill T. Doescher, Brett W. Olander & Associates, 900 Norwest Tower, 55 East Fifth Street, St. Paul, MN 55101 (for Respondent)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Forsberg, Judge.[*]



Appellant contends that the trial court erred in denying her motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The trial court did not err in denying appellant's motion for JNOV, but it did err in denying appellant's motion for a new trial. We affirm in part, reverse in part and remand.


Appellant Donna Marie Perry was injured when her vehicle collided with respondent Francis Caughey's vehicle at the intersection of Washington and 5th Streets in Brainerd. Washington Street is a four-lane road with two lanes headed east and two lanes headed west. A third lane runs east on Washington for motorists turning onto Highway 371. This turn lane begins at 4th Street and ends at Highway 371. Between these points, there is a mall entrance located at Washington and 5th Street. A street sign at the intersection of Washington and 4th Street designates the far right lane for motorists who wish to turn onto Highway 371.

Appellant testified that she proceeded into the right-hand turn lane after 4th Street. Appellant also testified that she was about 15 feet from respondent's car when it pulled out from behind a van that was at a standstill in the eastbound lane. Appellant applied her brakes but was unable to stop in time to avoid a collision.

At trial, respondent's attorney attempted to introduce appellant's medical records. Appellant's attorney objected to these medical records because they were unrelated to appellant's current injuries. The trial court indicated that everything would be sorted out before the evidence went to the jury. However, the records were never pulled and the evidence was available for the jury to see during deliberations.

At the close of the trial, the trial court instructed the jury that passing on the right was unlawful and that the speed limit at the location of the accident was 30 miles per hour.

Based on this evidence, the jury apportioned 95% of the negligence to appellant and 5% to respondent. As a result, appellant filed a motion for JNOV or, in the alternative, a new trial. The trial court held the evidence was sufficient to support the verdict and denied appellant's motion.


I. New Trial

A new trial is granted when the complaining party demonstrates an "irregularity in the proceedings of the court * * * or any order or abuse of discretion, whereby the moving party was deprived of a fair trial." Sherman v. Marden, 525 N.W.2d 550, 552 (Minn. App. 1994) (quoting Minn. R. Civ. P. 59.01(a)). Determining whether a trial court erred turns on whether the "denial involved a violation of a clear legal right or a manifest abuse of judicial discretion." Id. (quoting Rogers v. Ponti-Peterson Post No. 1720, 495 N.W.2d 897, 901-02 (Minn. App. 1993).

One of the jury instructions was erroneous because the evidence presented at trial did not support it. A trial court's jury instructions are given deference on appeal. Kirsebom v. Connelly, 486 N.W.2d 172, 174 (Minn. App. 1992). Nevertheless, a party is entitled to a jury instruction supporting its theory of the case only if the record contains evidence to support it. Id.

In this case, the trial court issued two jury instructions over the plaintiff's objection. First, the court gave an instruction at respondent's request regarding when it is lawful to pass on the right. This instruction was an abuse of discretion because it carried with it strong implications that appellant was violating the law by passing on the right.

No evidence was presented at trial indicating that appellant was traveling in an improper lane of traffic. In fact, the evidence supports the theory that appellant was exactly where she was supposed to be. There are no arrows directing motorists in the right lane to turn into the mall. There are, however, arrows after the mall entrance directing motorists to turn on Highway 371. More importantly, the street sign at the intersection of Washington and 4th Street designates the far right lane for motorists who wish to turn onto Highway 371.

Witness testimony also supports appellant's position. Witness David Patterson testified that the sign at 4th Street requires motorists to be in the far right lane if they are going to turn on Highway 371. Witness Michael Keller, a former police officer, testified that motorists traveling in the right lane through the mall entrance were not in violation of the law. The evidence and witness testimony do not support the trial court's jury instruction. In fact, the instruction suggests culpability contrary to the evidence.

Secondly, the trial court instructed the jury that the speed limit in urban areas is 30 m.p.h. However, no testimony was presented at trial establishing the speed limit on Washington Street. No witnesses testified that the speed limit was 30 miles per hour, nor did any of the evidence indicate a 30-mile-per-hour speed limit. Given that this case deals with negligence, speed limits are especially important. Therefore, the judge did not err in charging the jury with this instruction since neither side was able to establish the legal speed limit.

Next, appellant was denied her right to a fair trial because excluded evidence was given to the jury and allowed in deliberations. If a jury is allowed to see evidence that has been excluded by the court, prejudicial error occurs. State v. Cash, 391 N.W.2d 875, 879 (Minn. App. 1986). When evaluating potentially prejudicial matters that come before a jury, the Minnesota Supreme Court evaluates four factors:

[T]he nature and source of the prejudicial matter, the number of jurors exposed to the influence, the weight of evidence properly before the jury, and the likelihood that curative measures were effective in reducing the prejudice.

State v. Winnigham, 406 N.W.2d 70, 72 (Minn. App. 1987) (quoting State v. Cox, 322 N.W.2d 555, 559 (Minn. 1982)), review denied (Minn. July 15, 1987).

Applying these factors, it is clear that the evidence should have been excluded from jury deliberations. First, with regard to the source of the prejudicial matter, it was respondent's burden, as the party offering the evidence, to ensure that the records were removed from the eyes of the jury. Cash, 391 N.W.2d at 880. Second, all of the jurors were exposed to the excluded material because it was present throughout deliberations. Third, with the exception of the medical records, the weight of the evidence was in favor of appellant. Fourth, the judge did not take any curative measures to reduce the prejudicial effect of the medical records. See Cox, 322 N.W.2d at 559 (trial judge's prompt voir dire and careful instructions to jury may be sufficient to support finding of no prejudice). The trial judge in this case did not voir dire the jurors. In fact, the trial judge did not even catch the mistake.

Finally, the trial judge's conduct in this case was inappropriate.[1] This court may be compelled to order a new trial in the interest of justice when a trial judge makes sarcastic comments about witnesses in front of juries. Block v. Target Stores, Inc., 458 N.W.2d 705, 712 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). It is also improper for a judge to demonstrate bias in favor of one party, because this conduct could prejudice the jury. Hanson v. St. Paul City Ry. Co., 231 Minn. 354, 360, 43 N.W.2d 260, 264 (1950). This type of judicial behavior is disturbing in light of the trial judge's role of achieving an atmosphere of impartiality. Block, 458 N.W.2d at 712.

In this case, 45 minutes into the videotaped deposition, the judge sarcastically stated, "My God, is this still going on, let's call it quits for today, this is more than a human can stand." The judge made these comments in the presence of the jury. The judge did not give curative instructions or counterbalance his behavior with judicial instruction. Clearly, the judge left the jury with the impression that appellant's expert was not worth listening to, thus implanting prejudice in the minds of the jury.

In conclusion, the trial court included erroneous jury instructions, improperly admitted evidence, and made inappropriate judicial comments during appellant's case-in-chief that may have prejudiced the jury. Because the cumulative effect of all of these instances deprived appellant of her right to a fair trial, a new trial is warranted and will best serve the interests of justice.

II. Motion for JNOV

The decision to grant a motion for JNOV is purely a question of law. Boschee v. Duevel, 530 N.W.2d 834, 842 (Minn. App. 1995), review denied (Minn. June 14, 1995). JNOV will only be granted when it would be impossible for reasonable minds to come to a different conclusion because the evidence is so overwhelmingly on one side. Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983). As a result, the standard for granting JNOV is more demanding than a motion for a new trial. M.L. v. Magnuson, 531 N.W.2d 849, 856 (Minn. App. 1995), review denied (Minn. July 20, 1995).

In this case, the evidence was not so overwhelmingly on appellant's side that reasonable minds could not come to different conclusions. The record contains conflicting witness testimony as to how fast appellant was traveling and what the appropriate speed limit was for that particular area. Furthermore, evidence shows that respondent stopped his car as soon as he saw appellant approaching. Witness Patterson also testified that approximately 15 feet remained in front of respondent's car, in which appellant could have swerved around him. This evidence, minimal as it is, could be used to find appellant liable. As a result, the trial court did not err in denying appellant's motion for JNOV.

The trial court erred in denying appellant's motion for a new trial but it did not err in denying appellant's motion for JNOV.

Affirmed in part, reversed in part, and remanded.

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

[1] Respondent argues appellant's failure to raise any objection to judicial conduct at trial precludes her from raising the issue on appeal. As a general rule, a reviewing court must only consider issues that are part of the record. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Nevertheless, appellant's claim may succeed with proof that the judge's misconduct was so flagrant "'that the trial court should act on its own motion' and grant a new trial." Sherman, 525 N.W.2d at 553 (quoting Schwartz v. Consolidated Freightways Corp., 306 Minn. 564, 565, 237 N.W.2d 385, 286 (1975)).