Corrine L. Evenson, Mike D. LaFountaine, Quinlivan, Sherwood, Spellacy & Tarvestad, P.A., 400 South First Street, Suite 600, St. Cloud, MN 56302 (for respondent Dale Leikvoll)

Peter Girgis Mikhail, Leonard J. Schweich, Askegaard & Robinson, P.A., 206 North Seventh Street, Brainerd, MN 56401 (for respondent Chad Diederich)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.

The jury found no negligence in this personal injury action stemming from a motor vehicle collision. Neil Diederich, a passenger in one of the vehicles, appeals the denial of his motion for a directed verdict and his posttrial alternative motion for a new trial or judgment notwithstanding the verdict. Because the evidence supports the denial of the motions, we affirm.

At trial, Diederich testified that they were proceeding on a curved portion of County Road 8 on a slushy winter day when Chad Diederich told him to "hang on." Diederich observed Leikvoll's truck ahead of them on the roadway and immediately fastened his seat belt while Chad Diederich pumped the brakes. Their car began sliding and struck Leikvoll's truck. Diederich estimated that before applying the brakes their car was traveling at 35-45 miles per hour.

At the close of evidence, the district court denied a defense motion and Diederich's motion for a directed verdict on the issue of negligence. The jury found neither Chad Diederich nor Leikvoll negligent. Following the verdict, Diederich moved for judgment notwithstanding the verdict or, in the alternative, a new trial. The district court denied both motions, and Diederich appeals.[1]

Diederich's argument that the district court erred in denying his JNOV and directed-verdict motions is based on his trial theory that Leikvoll violated the right-of-way statute when he entered County Road 8 from the driveway and therefore was negligent as a matter of law. See Minn. Stat. § 169.20, subd. 4 (1996) (requiring driver of vehicle entering roadway to yield to approaching vehicles on roadway).

The violation of a traffic regulation is prima facie evidence of negligence. Minn. Stat. § 169.96 (1996); Janssen v. Neal, 256 N.W.2d 292, 294 n.1 (Minn. 1977). Once a traffic violation has been established, the burden shifts to the violator to present evidence of an excuse or justification for the violation. Marshall v. Galvez, 480 N.W.2d 358, 361 (Minn. App. 1992). But if the violator presents evidence of an excuse or justification, the question of whether the violation constitutes negligence is for the jury to decide. Gertken v. Farmers Elevator of Kensington, Minn., Inc., 411 N.W.2d 550, 554 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987). It is only when the violator offers nothing that could serve as an excuse or justification that "the court should hold the violator negligent as a matter of law." Riley v. Lake, 295 Minn. 43, 53, 203 N.W.2d 331, 338 (Minn. 1972).

Diederich's argument that Leikvoll was negligent as a matter of law because he violated the right-of-way statute when he entered County Road 8 overlooks a substantial amount of evidence that the jury was entitled to consider in determining whether either driver was negligent. In denying the directed-verdict motion, the district court pointed to evidence that the Diederich vehicle was traveling faster than conditions allowed. See Minn. Stat. § 169.20, subd. 1 (1996) (traveling at a unlawful rate of speed forfeits right of way). Specifically, the court noted the deposition testimony of Ernest Suedel, the owner of the property on which the driveway was located. Suedel watched Leikvoll back out, straighten the wheels, and go forward. He testified that he believed the accident occurred because Chad Diederich was driving too fast for the winter road conditions. Although the jury rejected this account of the facts when it found that Chad Diederich was not negligent, that finding does not compel a conclusion that Leikvoll was negligent as a matter of law.

Leikvoll testified that he looked both ways before entering the roadway and did not see the Diederich vehicle. Prior to entering the roadway, Leikvoll waited in the driveway to allow a red pickup to pass. He testified that when he entered County Road 8, the Diederich vehicle was not visible. He further stated that he did not see the Diederich vehicle in his rear-view mirror until he had completed backing out and had begun moving forward on County Road 8. The jury could reasonably infer that at the time Leikvoll entered the roadway, the Diederich vehicle had not yet come into view around the curve. That inference was supported by the driver of the red pickup, who testified that he believed the accident would happen because of the limited visibility around the curve and the low angle of the driveway. Diederich himself testified that he did not see Leikvoll's truck in the driveway and first saw it on the roadway. On this evidence, the jury could have found that both drivers acted reasonably and the accident was unavoidable.

Diederich has not shown that the evidence was so overwhelmingly in his favor that reasonable minds could not differ as to the outcome. The jury could reasonably have determined that the accident was unavoidable or that Diederich failed to meet his

burden of proof that either driver was negligent. The district court properly denied the motions for directed verdict and JNOV.

Affirmed.

[1] Although Diederich appealed the denial of his new-trial motion, he has not referred to any basis for a new trial in his brief, and consequently we determine the issue has been waived. Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987).