may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
James Gartner, et al.,
Larold Eggerth, et al.,
Filed June 9, 1998
Toussaint, Chief Judge
Todd County District Court
File No. C396242
Paul A. Rajkowski, 11 Seventh Avenue South, P.O. Box 1433, St. Cloud, MN 56302 (for respondents)
Considered and decided by Toussaint, Chief Judge, Foley, Judge and Mansur, Judge.
U N P U B L I S H E D O P I N I O N
In this dump truck and motorcycle accident case, the record revealed that appellant James Gartner was driving his motorcycle 65 to 73 miles per hour in a 55-mile-per-hour zone. Driving toward him on the same highway, respondent Larold Eggerth made a left turn in front of Gartner, braking and stopping in the middle of the intersection. In his claim for personal injuries Gartner received as a result of the accident, the jury found Gartner 51% and Eggerth 49% at fault.
Appellants James and Deanne Gartner appeal the trial court's denial of their motions for judgment notwithstanding the verdict and for a new trial. The Gartners argue that the court erred: (1) by including the emergency doctrine jury instruction; (2) by failing to give their specific instruction on the plain view rule; (3) by ruling that they could not introduce a previous report authored by Eggerth's accident reconstruction expert for impeachment purposes; (4) the trial court erred in denying their motion for directed verdict; and (5) they also argue the jury's special verdict is irreconcilable because it fails to award any general damages.
Because we conclude the trial court's inclusion of the emergency doctrine in the jury instructions was harmless error, the trial court did not abuse its discretion in its other rulings, and that the special verdict is supported by the evidence, we affirm.
D E C I S I O N
Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975).
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 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).
Emergency Doctrine Jury Instructions
"Trial courts are allowed considerable latitude in selecting the language in jury instructions." Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). An appellate court will not reverse a district court's decision unless the instructions constituted an abuse of discretion. See id. "A trial court has broad discretion in determining jury instructions." State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990). "Where 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).
Emergency Doctrine Instruction
Civil Jury Instruction Guide No. 110 reads:
A person confronted with an emergency through no negligence of (his)(her) own who, in an 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.
4 Minnesota Practice, CIVJIG 110 (1986). This rule cannot be invoked by one who, through his own fault, created the emergency or who failed to use due care to avoid it. See Kachman v. Blosberg, 251 Minn. 224, 235, 87 N.W.2d 687, 695-696 (Minn. 1958). The party seeking to invoke the emergency doctrine must show, among other things, that his own negligence did not create or contribute to the perilous or emergency situation. Fleahman v. Lehman, 388 N.W.2d 417 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986); see also Siegler v. Conner, 396 N.W.2d 612 (Minn. App. 1986). In addition to the burden to show error, appellants bear the burden on appeal to demonstrate that the trial court error was prejudicial. Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993), review denied (Minn. June 28, 1993); see Dahlstrom v. Hurtig, 209 Minn. 72, 295 N.W. 508, (Minn. 1940) (finding harmless error in court's faulty statement of emergency rule which did not prejudice appellant).
Eggerth caused an emergency situation by his turn in front of oncoming traffic. Because Eggerth, who requested the emergency doctrine instruction, contributed to the perilous situation, it was error for the trial court to include this instruction. But there is no indication that the Gartners were harmed by this error.
Furthermore, Rule 61 of the Minnesota Rules of Civil Procedure reads:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding, which does not affect the substantial rights of the parties.
After both counsel argued their positions regarding the instruction, the trial court correctly reasoned that the emergency rule could apply to either Gartners' or Eggerth's theory of the case. Under the circumstances, the trial court's error regarding this instruction was harmless.
Where the instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial. Alevizos, 452 N.W.2d at 501. Civil Jury Instruction No. 301 reads:
The violation of a duty owed another to use reasonable care is negligence. The duty of reasonable care may include, among other things:
1. The duty of every person using a public highway as a (pedestrian) (driver of a vehicle) to maintain a reasonable lookout.
The duty of a driver of a vehicle to keep (his)(her) vehicle under reasonable control.
[State other applicable non-statutory duties.]
Whether or not a duty [except a statutory duty] has been violated depends upon the risks of the situation, the dangers known or reasonably to have been foreseen, and all of the then existing circumstances.
4 Minnesota Practice, CIVJIG 301 (1986). The jury instruction read by the trial court is consistent with JIG 301 above. The trial court's instruction states:
Now, as we have seen, the violation of a duty owed to another to use reasonable care is negligence. In connection with the use of our roads and highways, the duty of reasonable care may include, among other things: (1) The duty of a driver of [a] motor vehicle to maintain a reasonable lookout; (2) The duty of a driver of a motor vehicle to keep the vehicle under reasonable control.
Whether or not a duty has been violated depends upon the risks of the situation, the dangers known or reasonably able to have been foreseen, and all of the then-existing circumstances.
In Poppenhagen v. Sornsin Constr. Co., the Minnesota Supreme Court stated:
This court has held that "[a] party is entitled to an instruction setting forth his theory of the case if there is evidence to support it and if it is in accordance with applicable law." However, as we pointed out in Hammond, we have also held that "a special requested instruction setting forth a litigant's theory of a case may be denied if the substance of it is adequately covered by the charge as a whole."
300 Minn. 73, 81, 220 N.W.2d 281, 286 (Minn. 1974) (citations omitted). Further, if the evidence justifies a charge that a party was negligent as a matter of law, failure of the trial court to so instruct the jury is harmless if the jury thereafter finds that the party was negligent. Martin v. Bussert, 292 Minn. 29, 33, 193 N.W.2d 134, 136 (Minn. 1971).
In this case, the trial court gave a plain view instruction to the jury, but it was not the instruction requested by the Gartners. Because the version read by the trial court and the instructions taken as a whole adequately set forth the Gartners' theory of the case, we conclude that the trial court did not abuse its discretion by excluding Gartners' instruction and substituting another.
Impeachment of Expert
The question of whether to admit or exclude evidence rests within the broad discretion of the trial court and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error.
Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn.1990) (citation omitted).
The earlier case involved a straight-line skid. There are factual differences between that case and this one, including the road surface and vehicle speed. After conducting an in-camera hearing on this evidence, the trial court found that because the earlier case was not factually similar enough, the impeachment evidence was irrelevant and the risk of confusion to the jury outweighed its probative value. The trial court did not abuse its discretion in excluding the evidence.
"In reviewing a directed verdict, we make an independent determination of the sufficiency of the evidence to present a fact question to the jury." Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983).
On appeal from a directed verdict, the reviewing court makes an independent assessment of its appropriateness. A motion for a directed verdict presents a question of law for the trial court: whether the evidence is sufficient to present a fact question to the jury to decide. A directed verdict should be granted only where, in light of the evidence as a whole, it would be the duty of the trial court to set aside a contrary verdict as manifestly contrary to the evidence or to the law. Finally, in considering the motion, the trial court must accept as true the evidence favorable to the adverse party and all reasonable inferences, which can be drawn from that evidence. This court must apply the same standard.
Claflin v. Commercial State Bank of Two Harbors, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992)(citations omitted).
The denial of a directed verdict was proper because there was evidence of a haze coming off the roadway that could have obscured Eggerth's view of Gartner and a jury could have reasonably concluded that due to the haze, Eggerth was less negligent than Gartner.
On review, answers to special verdict questions will not be set aside unless they are perverse and palpably contrary to the evidence or where the evidence is so clear to leave no room for differences among reasonable people. The evidence must be viewed in a light most favorable to the jury verdict. If the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed.
Hanks v. Hubbard Broadcasting, Inc., 493 N.W.2d 302, 309 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993) (citations omitted).
Where a jury verdict involves conflicting evidence, an appellate court must consider the evidence in a light most favorable to the verdict and sustain that verdict if possible on any reasonable theory of evidence.
Dang v. St. Paul Ramsey Medical Ctr., Inc., 490 N.W.2d 653, 659 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992). If a jury's conclusion that a defendant is not liable is supported by credible evidence, the jury's determination of inadequate damages to a plaintiff does not warrant a new trial. Hernandez by Hernandez v. Renville Pub. Sch. Dist. No. 654, 542 N.W.2d 671, 674-75 (Minn. App. 1996) (citing Wefel v. Norman, 296 Minn. 506, 508, 207 N.W.2d 340, 341 (Minn. 1973)), review denied (Minn. Mar. 28, 1996), A review of the record does not suggest prejudice, bias, or an improper motive on the part of the jury. Testimony from the Gartners' own expert, Donn Peterson, as well as from Eggerth's expert, Myron Lofgren, indicated that the accident could have been avoided if Gartner had been traveling at the speed limit. Evidence that there was a reflection or haze on the highway, which could have obstructed Eggerth's view, also supports the verdict. Thus we cannot say that the jury verdict is irreconcilable, perverse, or "palpably contrary" to the evidence.
Apparently, the jury attributed a slightly greater percentage of fault to Gartner because of his speeding. Because this court must consider the evidence in the light most favorable to the verdict, this court must affirm.
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.