This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Gary Even, et al.,



Dennis Salzwedel,


Jerry L. Nelson,


Filed April 27, 1999


Shumaker, Judge

Jackson County District Court

File No. C5-96-232

J. Brian O'Leary, O'Leary & Moritz, Chartered, Post Office Box 76, Springfield, MN 56087 (for appellants)

Gregory E. Kuderer, Dale A. Hansen, Erickson, Zierke, Kuderer & Madsen, 114 West Second Street, Post Office Box 571, Fairmont, MN 56031-0571 (for respondent Salzwedel)

Marcus C. Christianson, Christianson, Stoneberg, Giles & Stroup, 300 O'Connell Street, Marshall, MN 56258-2638 (for respondent Nelson)

Considered and decided by Harten, Presiding Judge, Shumaker, Judge, and Foley, Judge.[*]



Appellant Gary Even was injured when respondent Dennis Salzwedel's car struck a calf on the highway and propelled it through appellants' windshield. The calf belonged to respondent Jerry L. Nelson. Gary Even and his wife, appellant Sherry Even, asserted negligence claims against respondents. The trial court granted directed verdicts in favor of respondents. We affirm.


At 6:30 a.m. on June 23, 1995, Gary Even was driving his car south along a rural county road when he noticed a "black spot" off the road on his left about a quarter-mile ahead. As he got closer, he saw that the black spot was a calf standing near a field approach that abutted the road. Even slowed down and then noticed Dennis Salzwedel's car approaching from the north. Salzwedel did not appear to see the calf and he continued along the road without changing speed or position.

Suddenly the calf ran across the road in front of Salzwedel. The car and the animal collided. The impact propelled the calf onto Even's car and partially through the windshield. Even was seriously injured.

Robert Nelson owned the calf and had kept it in a pasture enclosed by an outer three-strand barbed wire fence and an inner single-strand electric fence. The fences were intact at the time of the accident. Apparently, the calf had rolled under the fence to escape the enclosure.

Even and his wife, Sherry, sued Salzwedel and Nelson for damages on negligence theories. At trial, Gary Even offered photographs of the scene and testified about an experiment he conducted to determine whether or not Salzwedel could have seen the calf in time to avoid the accident.

Gary Even did the experiment at 1:00 in the afternoon. He stopped where he had been at impact. He had his son, who was 5' 8" tall, stand where the calf was standing just prior to impact. The calf's height was about two-and-a-half feet. Even made no measurements but relied on visual perceptions to determine what Salzwedel could have seen as he approached from the north. To impeach Even, Salzwedel offered Even's deposition testimony that

the other party that was coming towards me, there was no way he could see the cow until it was almost, I mean it was too late, I mean he didn't have a chance, he really didn't.

At the conclusion of the Evens' case, the trial court directed verdicts in favor of Salzwedel and Nelson. The Evens made no posttrial motions.


On appeal from a directed verdict, this court independently determines whether or not the evidence is sufficient to raise a fact issue for the jury to decide. Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983).


Appellants contend that respondent Salzwedel was negligent by failing to satisfy the duties of keeping a proper lookout and keeping his vehicle under control. A motor vehicle driver is required to satisfy both duties in the exercise of reasonable care. Van Tassel v. Hillerns, 311 Minn. 252, 255, 248 N.W.2d 313, 315 (1976). But proof of the mere occurrence of a motor vehicle accident does not establish negligence. Lenz v. Johnson, 265 Minn. 421, 424, 122 N.W.2d 96, 99 (1963). Rather, the greater weight of the evidence must support the conclusion that a party has failed to exercise reasonable care. Carpenter v. Nelson, 257 Minn. 424, 426-27, 101 N.W.2d 918, 921 (1960).

On the issue of Salzwedel's alleged negligence, appellants offered Gary Even's opinion and reconstruction experiment. Although Even conducted the experiment at the accident scene, he did so at a different time of day; used a person 38" taller than the calf to show that Salzwedel could have seen the calf; failed to present evidence of distances; failed to account for visual obstructions; and failed to delineate Salzwedel's speed and various locations as those factors related to Salzwedel's opportunity to see the calf. Furthermore, Gary Even's own opinion under oath that Salzwedel could not have seen the calf until it was too late was part of the evidence. We hold that the trial court did not err in determining that appellants' evidence was insufficient to create a fact issue for the jury to decide.


Appellants contend that Minn. Stat. § 346.16 (1998) required respondent Nelson to keep his calf confined and that his failure to do so was negligence as a matter of law.

Minn. Stat. § 346.16 provides in part that

[a]ny person who shall knowingly permit the running at large of any such domestic animal shall be liable to the person aggrieved for treble damages sustained by the aggrieved person, to be recovered in a civil action brought for that purpose.

The evidence showed that Nelson took great care to keep his animals in his pasture. He not only erected two parallel fences but he also regularly walked the perimeter of the pasture to check the condition of the fences and to make repairs where necessary. The lowest fence strand was ten to twelve inches off the ground. The fences were intact at the time of the accident. Although Nelson's father-in-law had stated that small calves can roll under fences, Nelson had never heard of that happening prior to this occurrence. Appellants presented no evidence that Nelson knowingly permitted the calf to run at large. See Peterson v. Pawelk, 263 N.W.2d 634, 637 (Minn. 1978) (an animal at large does not establish negligence per se unless owner permitted animal to run at large).


Finally, appellants argue that the trial court erred by allowing Salzwedel's lawyer to read verbatim portions of Gary Even's deposition testimony, for purposes other than impeachment, while Even was on the witness stand.

Appellants failed to raise this issue in a posttrial motion and cannot do so for the first time on appeal. See Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986) (evidentiary rulings are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error).


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