may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Gary Even, et al.,
Jerry L. Nelson,
Filed April 27, 1999
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.
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 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.
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).
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.