This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Wayne Paul Cowette, et al.,



Dawn C. LaClare,


Filed May 12, 1998


Mulally, Judge*

Ramsey District Court

File No. C5963082

John E. Castor, Castor, Klukas, Logren, & Grove, Chartered, 1800 Rand Tower, 527 Marquette Avenue South, Minneapolis, MN 55402 (for appellants)

James A. Jardine, Vortel, Anderson, & McEachron, 1250 Piper Jaffrey Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Mulally, Judge.

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



Appellant argues that the district court erred when it refused: (1) to grant her motion for JNOV on the issue of liability; (2) to grant her motion for a new trial on the issues of liability and damages on the ground the evidence did not support the jury's verdict; and (3) her proposed jury instructions. We affirm.


Elaine Cowette attempted to make a left turn from eastbound University Avenue onto Pillsbury Street. The intersection of Pillsbury and University is an inverted "T." Eastbound University has two lanes in addition to a left-hand turn lane. Westbound University comprises three lanes. The curb lane of westbound University is both a traffic and parking lane. At the time of the accident, traffic was backed up in the median and center lanes of westbound University on both sides of the intersection.

According to Cowette, she proceeded to make her left turn through the intersection only after Raenell Herron, the driver of a full-size van in the middle westbound lane of University, waved her through the intersection. Herron denies waving Cowette through the intersection. As Cowette's vehicle was leaving the intersection, her vehicle was struck by a pickup truck driven by respondent Dawn LaClare. Cowette's vehicle was struck on the right-side rear wheel-well by the front of LaClare's truck.

LaClare testified that, after she made her right turn onto University, she remained in the right-most lane of University because the traffic was backed up in the median and middle westbound lanes. She estimated her speed to be 25 miles per hour, although she did not deny telling the police officer at the scene that she was driving under 35 miles per hour. LaClare stated that she observed the front of Cowette's vehicle emerge from the right side of the van driven by Herron when she was a few car lengths from the intersection. According to LaClare, she applied her brakes and tried to turn to her left to avoid the collision, but was unable to do so.

Cowette claimed that as a result of the accident, she sustained injuries to her shoulders, neck, and back. The testimony at trial established that Cowette was suffering from a severe degenerative arthritic condition in her neck, shoulders, and upper back. It was further shown that, approximately one month before the accident, Cowette could have injured her shoulder when she fell in the home of a friend.

Cowette and her husband brought a personal injury suit against LaClare in Ramsey County District Court. Following a trial, the jury found Elaine Cowette 75% negligent and LaClare 25% negligent and that the Cowettes had sustained no injuries. The Cowettes moved for a partial judgment notwithstanding the verdict (JNOV) on the issue of liability and for a new trial on the issues of damages; or in the alternative, a new trial on all issues. The district court denied the Cowettes' motion, and this appeal followed.


"Judgment notwithstanding the verdict is proper when a jury verdict has no reasonable support in fact or is contrary to the law." Molenaar v. United Cattle Co., 553 N.W.2d 424, 426 (Minn. App. 1996) (citing Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn. 1990)), review denied (Minn. Oct. 15, 1996). The decision to grant JNOV is a question of law. Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14 (Minn. 1979). The analysis admits every inference to be reasonably drawn from the evidence and an order denying JNOV should stand unless the evidence is practically conclusive against the verdict or reasonable minds could reach only one conclusion against the verdict. Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975). When reviewing the facts in a case where a motion of JNOV has been denied, this court must affirm if there is any competent evidence that reasonably sustains the verdict. Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984). A reviewing court may not weigh the evidence or judge the credibility of the witnesses when determining if any competent evidence exists in the record to sustain the jury's verdict. Conroy v. Book Automation, Inc., 398 N.W.2d 657, 662 (Minn. App. 1987).

The Cowettes argue that the district court erred when it denied their motion for JNOV on the issue of liability because Elaine Cowette was not negligent as a matter of law. The Cowettes claim that Elaine Cowette had been in the intersection for an appreciable amount of time before being struck by LaClare, and she had possession of the intersection. LaClare, therefore, was required to yield the right of way.

A driver of a vehicle that intends to turn left in an intersection

shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.

Minn. Stat. § 169.20, subd. 2 (1996). "[T]he vehicle on the left must yield the right of way or the driver [is] prima facie negligent in failing to do so." Halloran v. Tousignant, 230 Minn. 399, 401, 41 N.W.2d 874, 876 (1950). However, the supreme court has held that, as a matter of law,

the driver on the right is required to yield the right of way to the driver on the left who has reached the intersection an appreciable length of time ahead of him and who is in actual possession of the intersection.

Id. at 402, 41 N.W.2d at 876.

Here, there is sufficient evidence to allow the jury to conclude that Elaine Cowette had not been in the intersection an appreciable length of time. At trial, LaClare testified that she first observed Cowette's vehicle enter the intersection, turning left in front of her, when she was a "few car lengths" away from the intersection. She also testified that she tried to avoid the collision by swerving to her left and that had she not done so, she most likely would have struck Cowette's vehicle squarely in the passenger-side door. It was only because she swerved that Cowette's vehicle suffered damage in the right rear wheel-well area. If the jury credited LaClare's trial testimony, it could reasonably conclude that Cowette entered the intersection too late for LaClare to avoid the collision. Similarly, if the jury credited Herron's deposition testimony, it could find that she did not wave Cowette through the intersection and that, under the circumstances, it was unsafe for Cowette to attempt a left turn. See SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 311 (Minn. 1995) (holding jury is to determine weight and credibility to be given testimony when testimony is conflicting). Viewing the evidence in the light most favorable to the verdict, there is competent evidence in the record to support the jury's verdict, and we conclude that the district court did not err in denying the Cowettes' motion for JNOV.

The Cowettes argue that the district court erred when it refused to admit into evidence the police report prepared by the investigating police officer. However, accident reports prepared by an investigating police officer may not be admitted as evidence at trial. Minn. Stat. § 169.09, subd. 13(b) (Supp. 1997), provides that "[n]o report shall be used as evidence in any trial, civil or criminal, arising out of an accident, * * * ." This court has held that the admission of such a report is reversible error. State v. Schultz, 392 N.W.2d 305, 307 (Minn. App. 1986) (holding admission of police accident report in trial for failure to yield to pedestrian required new trial). Thus, the district court was precluded by law from admitting the accident report into evidence.

Next, the Cowettes argue that the district court deprived them of fair and adequate instructions on their theory of the case and liability when it refused to submit their proposed jury instructions on: (1) overtaking and passing vehicles on the right; (2) right-of-way; (3) reasonable look-out; and (4) the "eggshell plaintiff" theory.

The district court has broad discretion in determining jury instructions. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990). "Where the instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial." Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).

A new trial is warranted only if erroneous jury instructions destroy the substantial correctness of the charge, cause a miscarriage of justice, or result in substantial prejudice.

Benson v. Northwest Airlines, Inc., 561 N.W.2d 530, 537 (Minn. App. 1997), review denied (Minn. June 11, 1997).

After careful review, we conclude that, on the whole, the district court's jury instructions fairly and accurately state the law applicable to the Cowettes' theories of recovery. The district court did not, as a matter of law, abuse its discretion when it refused to give the Cowettes' proposed jury instructions. We note further that many of the Cowettes' jury instructions are statements taken directly from appellate court decisions. It has long been held that it is inappropriate and not good policy for district courts "to use texts of reported decisions of appellate courts because, when used out of context, such texts are sometimes misleading." Alholm v. Wilt, 394 N.W.2d 488, 491 (Minn. 1986).

Finally, the Cowettes argue that they are entitled to a new trial because the jury's findings that Elaine Cowette was more negligent than LaClare and that Elaine Cowette suffered no injuries in the accident are so contrary to the evidence as to imply mistake or bias.

A new trial should be granted only where the verdict is

so contrary to the preponderance of the evidence so 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 discretion.

Lamb v. Jordan, 333 N.W.2d 852, 855-56 (Minn. 1983).

Here, if the jury credited the testimony of LaClare, it could reasonably conclude that at the time Elaine Cowette entered the intersection, LaClare could not avoid hitting her. Cowette admitted that she made a blind left turn and that there was a potential hazard in the curb lane. Cowette also testified that she could not see the curb lane of westbound University. Further, contrary to Cowette's assertion, Herron, the driver of the van in the middle lane of traffic, stated that she did not wave Cowette through the intersection. She also testified that she observed Cowette peer over several cartons that were stacked in the passenger side seat of Cowette's vehicle. According to Herron, these cartons came up to about the mid-way point of the passenger-side window of Cowette's vehicle. From this evidence, the jury could reasonably conclude that under the circumstances, Cowette should not have attempted to make the left turn and that her negligence exceeded that of LaClare.

Likewise, there is competent evidence in the record to allow the jury to conclude that Elaine Cowette did not suffer any compensable damages. Considerable testimony was presented that Cowette suffered from a degenerative arthritic condition in her neck, shoulders, and upper back. Cowette's doctor testified that he could not tell whether Cowette's neck problems were associated with the accident or the degenerative condition in her neck. He also testified that Cowette could have suffered an injury to her shoulder when she fell at her friend's house several weeks before the accident. The jury also heard medical testimony that Cowette did not suffer any permanent injury to her shoulders or neck in the accident and that the pain Cowette was experiencing was the result of her chronic degenerative condition and not the result of the accident. There was further testimony based on the medical record that Cowette did not suffer any acute injury to her shoulder in the accident. If the jury credited this testimony, it could reasonably conclude that Cowette had not sustained any injuries as a result of the accident.

Here, there is competent evidence in the record from which the jury could reasonably conclude that Cowette was more negligent than LaClare and that she did not suffer any compensable injuries as a result of the accident. Accordingly, we conclude that the district court did not err when it denied Cowette's motion for a new trial.