Affirmed

Randall, Judge

Stearns County District Court

File No. C9-03-3082

Michael A. Bryant, Bradshaw & Bryant, PLLC, 1505 Division Street, Waite Park, MN 56387 (for appellant)

Mary B. Mahler, Quinlivan & Hughes, P.A., P.O. Box 1008, St. Cloud, MN 56302 (for respondent)

Considered and decided by Randall, Presiding Judge; Klaphake, Judge; and Willis, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant Marie Garding challenges the district court’s denial of her motion for JNOV and/or a new trial after a jury found that respondent Brian Schaefer was not liable for injuries appellant received when she was hit by respondent's truck. Appellant argues that the district court erred (a) when it allowed respondent’s expert to testify concerning the length of a skid mark found at the scene of the accident; and (b) when it allowed the jury to consider an instruction under Minn. Stat. § 169.21, subd. 1 (2004), regarding obeying traffic-control signals. We affirm.

F A C T S

On the evening of November 2, 2002, appellant was struck by respondent’s vehicle as she attempted to cross the street. After a two-day jury trial, the jury found that appellant had suffered $44,914.56 in damages, but that respondent was not liable for any portion of those damages.

Appellant filed a post-trial motion for JNOV and/or a new trial, arguing that the district court erred in (1) allowing respondent’s expert, Daniel Lofgren (Lofgren), to testify as to the speed respondent was traveling at the time of the accident when he could not state with certainty that the skid marks he relied on in his analysis were, in fact, made by respondent’s automobile; and (2) giving a jury instruction that included Minn. Stat. § 169.21, subd. 1 (2004), which, appellant argued, was inapplicable to this case.

The district court denied appellant’s motion on October, 21, 2004, stating, in reference to appellant’s first argument, that Lofgren’s testimony was

based on the skid mark photograph taken by Mr. Boecker. Mr. Boecker was a plaintiff witness. He is the plaintiff’s brother-in-law. He lives near the scene of the accident, was called to the scene of the accident by the plaintiff on the night of the accident, and returned to the scene the following day. When Mr. Boecker returned to the scene, he brought a professional photographer with him to take photos of skid marks that Mr. Boecker believed came from defendant’s car. The photos were introduced into evidence during the plaintiff’s case-in-chief as likely to have been made by defendant’s car at the time of the accident. The determination of whether the skid marks were from the defendant’s car was left to the jury.

The district court also noted that Lofgren “testified that if the skid marks came from the defendant’s car, defendant was traveling at 26 m.p.h.” (Emphasis added). Accordingly, the court held that appellant was not entitled to JNOV and/or a new trial based on its admission of Lofgren’s testimony.

With regard to appellant’s second argument—that including Minn. Stat. § 169.21, subd. 1 (entitled “[o]bey traffic-control signals”), in the jury instructions was an abuse of discretion—the court stated that “[t]he parties agreed at trial that a stop sign fit the definition of traffic-control signals” and, “[b]ased on this agreement, it was not an abuse for defendant to argue that plaintiff had a duty to stop at the intersection and follow basic traffic rules as she crossed the street.” The district court also held that appellant “failed to show any prejudice resulting from the instructions.” This appeal followed.

D E C I S I O N

Appellant challenges the district court’s denial of her motion for JNOV and/or a new trial. Appellate courts will not disturb the district court’s decision to grant or deny a new trial absent a clear abuse of discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). “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 a light most favorable to the verdict.” Zumberge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992). Similarly, where the district court has denied JNOV, the reviewing court must affirm the denial if there is any competent evidence in the record “reasonably tending to sustain the verdict.” Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).

Appellant argues that because respondent’s expert “could not say whether or not the skid marks [at the scene] were due to the [respondent’s] truck,” it was error for the district court to allow his testimony regarding “the speed of [the] vehicle based upon that ‘unlinked’ track.” Essentially, appellant is arguing that there was a lack of foundation for respondent’s expert’s opinion, and, therefore, his opinion should not have reached the jury.

The supreme court has stated that, “in view of the importance normally accorded scientific training and knowledge by a jury, this court has consistently preferred eyewitness testimony and has allowed expert testimony on speed only where such eyewitness testimony is nonexistent or of little aid to the jury in resolving the issue.” Bohach v. Thompson, 307 Minn. 332, 335, 239 N.W.2d 764, 766 (1976) (citations and quotations omitted). And the test for determining whether an expert’s opinion on the speed of an automobile is admissible depends on

(1) whether there exist sufficient factual data to assure a reasonably complete and accurate reconstruction of the accident without indulging in speculation; and

(2) more importantly, whether such opinion testimony will assist the triers of fact.

Lemieux v. Bishop, 296 Minn. 372, 378, 209 N.W.2d 379, 383 (1973).

At trial, respondent testified that he was traveling “between 25 and 30 miles per hour” prior to the accident. No other witnesses had first-hand knowledge of respondent’s speed. Appellant’s brother-in-law, Ralph Boecker, testified that he went to the scene of the accident the next day and saw one skid mark. On direct examination, Boecker stated that he measured the skid mark and that it “measured at 33 feet.” During cross-examination, Boecker testified that he put white paint on the road in order to measure the skid mark, he took pictures of it, and that he “was amazed at the length of the skid mark[].” Based on this record, the testimony as to speed was somewhat sketchy and subjective, and, thus, it was within the trial court’s discretion to rule that expert testimony as to the speed respondent was traveling was appropriate and helpful to the jury. See Bohach, 307 Minn. at 336, 239 N.W.2d at 767 (holding that, where testimony regarding the speed of the automobile “was wholly unsatisfactory to defendants . . . it was not improper for defendants to seek the aid of an expert”).

In addition to Boecker’s above-referenced testimony, he also testified that the pictures he took of the scene on the day after the accident “accurately depict the scene of the accident.” And the record indicates that respondent’s expert (Lofgren) formed his opinion as to the speed respondent was traveling by relying on the photographs of the accident-scene taken by Boecker (which Lofgren agreed accurately depict the skid mark and its length), combined with his own analysis of the scene performed one year later. The district court also stated, in response to appellant’s foundation objection, that Lofgren’s testimony “ties in with Boecker’s testimony,” that Lofgren “was working [at the scene] when obviously the skid mark was gone but he [had] the photos,” and “[b]ased on that you [the jury] draw your own conclusions as to how accurate that can be.” Accordingly, the district court did not abuse its discretion in refusing to grant JNOV and/or a new trial based on appellant’s arguments here. See id. at 336, 239 N.W.2d at 767 (affirming admission of expert testimony where the expert relied on photographs and his own analysis of the scene three years later).

II.

Appellant argues that the district court should have granted his motion for JNOV and/or a new trial based on its error in giving a jury instruction that included Minn. Stat. § 169.21, subd. 1 (2004). District courts have broad discretion in selecting the language of jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). Thus, a new trial is warranted only when the jury instructions, considered as a whole, do not fairly and correctly state the applicable law, cause a miscarriage of justice, or result in substantial prejudice. H Window Co. v. Cascade Wood Prods. Inc., 596 N.W.2d 271, 277 (Minn. App. 1999), review denied (Minn. Aug. 17, 1999).

The district court gave the following instruction to the jury:

Besides the duties I have already read to you, drivers and pedestrians have additional duties. These additional duties are in traffic laws passed by the legislature. I will read some of these traffic laws to you. The fact that I read a law to you does not mean it was violated.

You must decide if any of these traffic laws were violated based on the evidence.

Subdivision 1. Obey traffic-control signals. Pedestrians shall be subject to traffic-control signals at intersections.

Subdivision 2. Rights in absence of a signal. Where traffic control signals are not in place or in operation, the driver of a vehicle shall stop and yield the right of way to a pedestrian crossing the roadway crosswalk or at an intersection with no marked crosswalk. The driver must remain stopped until the pedestrian has passed the lane in which the vehicle is stopped. No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.

Violation of a traffic law is negligence unless there is evidence tending to show the person had a reasonable excuse or justification for breaking the law or a reasonable person could believe, under the circumstances, that violating this law would not endanger anyone who should be protected by the law.

If a person offers an excuse or justification for breaking the law, you can still find the person negligent. In deciding negligence, consider the violation along with all the other evidence in the case. If a traffic law was violated, you must also decide if this violation was a direct cause of the accident.

Appellant argues that “there are no traffic-control signals that meet the standards to apply [subdivision 1],” that respondent “attempted to argue that the stop sign [at the intersection in question] also applies to the pedestrian,” and “[t]hat argument was a misuse of the statute and the statute should never have been allowed in this case.” Appellant also argues that “[i]t was illogical to lead the jury to believe that the stop sign on 36th Avenue was for pedestrians” because “[t]he stop sign is clearly for motor vehicle traffic.” Therefore, appellant argues, she should be granted a new trial. We disagree.

At trial, appellant’s counsel stated, “I’ve agreed that there is no problem with the defense arguing or just saying that a traffic control signal is a stop sign. I agree with that.” Thus, appellant’s argument here, which contradicts her statement to the district court at the time it was deciding whether to sustain appellant’s objection to the jury instruction, is not persuasive. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). On this record, appellant cannot overcome the “substantial prejudice” hurdle required for this court to grant a new trial based on the district court’s jury instructions. In final argument, appellant’s counsel was free to, and did, argue to the jury that reasonable inferences drawn from the facts and the jury instructions should favor appellant. The weight to be given to that argument was for the jury.

Affirmed.