Nelson v. Trujillo

Decision Date19 November 1982
Docket NumberNo. 17677,17677
Citation657 P.2d 730
PartiesScott D. NELSON, Plaintiff, Respondent and Cross-Appellant, v. Charles TRUJILLO, Defendant, Appellant and Cross-Respondent.
CourtUtah Supreme Court

Allen L. Larson, Craig S. Cook, Salt Lake City, for defendant, appellant and cross-respondent.

Bruce R. Baird, Robert A. Echard, Ogden, for plaintiff, respondent and cross-appellant.

OAKS, Justice:

This negligence action arising out of an automobile collision has been tried twice. The first jury found $12,000 damages, but apportioned fault equally between the parties. The court granted plaintiff's motion for a new trial. A second jury found defendant solely negligent, fixing damages at $151,029.63. The court denied defendant's motion for a new trial on condition that plaintiff accept a remittitur in the amount of $15,000, which he did.

On appeal, defendant challenges the grant of plaintiff's motion for a new trial after the first verdict. He urges this Court to revise its standard of review of such action, contending that it is so deferential to trial judges that it infringes on the right to trial by jury. Defendant also challenges the denial of his own motion for a new trial after the second verdict. He relies on admission of improper testimony, misconduct of plaintiff's counsel, erroneous jury instructions, and excessive damages. In a cross-appeal, plaintiff seeks reinstatement of the second jury verdict in its entirety on the basis that the trial court could not impose a remittitur without a finding of excessive damages.

The parties' automobiles collided on West Riverdale Road in Riverdale, Utah. Intending to make a left turn, defendant drove into the center turning lane and signaled left. Although he saw plaintiff's car in the oncoming lane, he believed he could safely execute the left turn. As he was completing his turn, he was struck by plaintiff's car. Plaintiff's injuries included a loss of flexion and extension abilities of his neck and a diminution of the neck's lateral bending and rotation ability.

At the first trial, plaintiff called nine witnesses, including the defendant, a neurologist, two orthopedic surgeons, a physical therapist, a police officer, and an accident reconstruction expert. Defendant called no witnesses but relied entirely upon his own testimony and upon cross-examination of plaintiff's witnesses. The jury assessed plaintiff's damages at $12,000, but because it also found the parties equally negligent, plaintiff recovered nothing. U.C.A., 1953, § 78-27-37. The district court granted plaintiff's motion for a new trial, concluding that the evidence was insufficient to justify a jury verdict that plaintiff was 50% negligent. Defendant now urges us to overturn this order of the district court.


Under Rule 59(a)(6) of the Utah Rules of Civil Procedure, a trial court may grant a new trial on the ground of "[i]nsufficiency of the evidence to justify the verdict ...." The trial judge has broad latitude in granting or denying a motion for a new trial, and will not be overturned on appeal absent an abuse of discretion. But when the issue is alleged insufficiency of evidence, the decisions of this Court have established a different standard for our review of the trial court's decisions on motions for new trial, depending on whether the court has denied the motion or granted it.

Where the trial court has denied the motion for new trial, its decision will be sustained on appeal if there was "an evidentiary basis for the jury's decision ...." The trial court's denial of a motion for a new trial will be reversed only if "the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust." McCloud v. Baum, Utah, 569 P.2d 1125, 1127 (1977); Pollesche v. Transamerican Insurance Co., 27 Utah 2d 430, 497 P.2d 236 (1972).

Where the trial court has granted the motion for new trial, its decision will be sustained on appeal if the record contains "substantial competent evidence which would support a verdict for the [moving party]." King v. Union Pacific Railroad Co., 117 Utah 40, 53, 212 P.2d 692, 698 (1949); Brown v. Johnson, 24 Utah 2d 388, 472 P.2d 942 (1970); Marshall v. Ogden Union Railway & Depot Co., 118 Utah 161, 221 P.2d 868 (1950). This rule affords maximum latitude to the discretion of the trial court, which has heard the testimony and other evidence presented to the jury and is best suited to evaluate the claim that it is insufficient to justify the verdict. But in order to assure that a new trial is not a pointless act, the trial court cannot grant a new trial on the basis of insufficient evidence unless the record contains "substantial competent evidence which would support a verdict for the [moving party]." King v. Union Pacific Railroad Co., supra.

Focusing on the inviolability of jury verdicts rather than the discretion of the trial court, defendant argues that "under existing Utah law a jury verdict is given considerable weight on a denial [of] a motion for a new trial but is given no credence whatsoever on the granting of a motion for new trial." In order to give added protection to the right to a trial by jury, defendant urges us to follow Lyndes v. Scofield, 180 Mont. 177, 589 P.2d 1000 (1979), and similar cases in other states and modify our existing rule so that the trial court cannot grant a motion for new trial if there was substantial evidence to support the jury verdict. But this is precisely the argument this Court rejected in King v. Union Pacific Railroad Co., supra, for reasons we still find persuasive. In his exhaustive opinion for the Court in that case, Justice Wolfe said this argument was "amply answered" by the following comments by the United States Supreme Court in Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 585, 43 L.Ed. 873 (1899):

"Trial by jury" in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of 12 men ... but it is a trial by a jury of 12 men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict, if, in his opinion, it is against the law or the evidence.

117 Utah at 50; 212 P.2d at 697. Later in the King opinion, the Court gave this additional explanation:

All that resulted from the granting of the new trial was that the determination of the issues upon which liability was dependent was taken away from one jury and given to another jury. There was no usurpation by the trial court of the jury's function. As was observed by Lord Mansfield in Bright v. Eynon, 1 Burrows 390, the effect of a new trial is "no more than having the cause more deliberately considered by another jury, when there is reasonable doubt, or perhaps a certainty that justice has not been done."

Id. at 54; 212 P.2d at 699.

A second trial is not without its costs in terms of scarce litigant and judicial resources and the possible unavailability of witnesses or the erosion of their memories. Consequently, the trial judge's prerogative to grant a new trial on an evidentiary basis under Rule 59(a)(6) should be exercised with forebearance. Subject only to that caution, we reaffirm the present standard enunciated in King v. Union Pacific Railroad Co., supra. For good reason, defendant does not bother to argue that the trial court's order granting plaintiff's motion for a new trial offended that standard.


The second jury trial was held approximately five months after the first. According to defendant, the testimony at the two trials was "substantially identical." The neurologist did not testify in the second trial, but an additional police officer, an additional accident reconstruction expert, and an eyewitness were added. The jury returned a verdict for plaintiff, awarding special medical expenses of $986.63, lost wages of $43, and general damages of $150,000, for a total of $151,029.63. Defendant moved for a new trial on various grounds, and the court denied that motion. However, on the ground that plaintiff's attorney had engaged in misconduct at trial, the court conditioned its denial on plaintiff's remitting $15,000 of the damages, which he did. This appeal and cross-appeal followed.

Defendant challenges the admission of certain testimony given by a police officer at the second trial. After reciting his observations and inquiries upon arriving at the scene of the collision, the officer gave this description of the accident:

[Defendant's vehicle] was westbound on Riverdale Road attempting to make a left turn into Freeway Mazda. [Plaintiff's vehicle] was eastbound on Riverdale Road in the outside lane. [Defendant's vehicle] turned in front of [plaintiff's vehicle] and failed to yield the right of way in turning. [Emphasis added.]

Thereafter, the officer was allowed, over defendant's objection, to give his opinion as to which vehicle was the cause of the accident. "My opinion was that Mr. Trujillo's vehicle failed to yield the right of way in turning." (Emphasis added.) After briefly cross-examining the witness, defendant moved for a mistrial based upon the testimony of his opinion. The motion was denied.

Defendant now argues that the officer's statement was objectionable as a legal conclusion, since it characterized defendant as having "failed in a legal duty." Opinion testimony on questions of law (other than foreign law) is inadmissible. McCormick on Evidence 28 (E. Cleary 2d ed. 1972); 7 Wigmore on Evidence § 1952 (J. Chadbourn rev. 1978); 31 Am.Jur.2d Expert and Opinion Evidence § 69 (1967). This rule has been applied to hold inadmissible the testimony of a police officer as to right-of-way. Akin v. Randolph Motors, Inc., 95 Ga.App. 841, 99 S.E.2d 358, 363 (1957). On the other hand, an investigating...

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  • Crookston v. Fire Ins. Exchange
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    ...6A J. Moore & J. Lucas, Moore's Federal Practice p 59.08 (1991). In Goddard v. Hickman, 685 P.2d 530 (Utah 1984), and Nelson v. Trujillo, 657 P.2d 730 (Utah 1982), we held that the standard of review on appeal of an order granting a new trial under Rule 59(a)(6) is that the order will be su......
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    ...a motion for a new trial based on alleged insufficiency of evidence under Utah Rule of Civil Procedure 59(a)(6). See Nelson v. Trujillo , 657 P.2d 730, 731–32 (Utah 1982). In cases where the lower court denied a motion for a new trial, we affirmed the decision on appeal "if there was an evi......
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    ...1989) (holding that use of word "may" in Utah Rule of Civil Procedure 49 indicates grant of discretion to trial court); Nelson v. Trujillo, 657 P.2d 730, 731 (Utah 1982) (applying same analysis to Utah Rule of Civil Procedure 59(a)(6)); accord Boyle v. National Union Fire Ins. Co., 866 P.2d......
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    ...depends on whether the two issues are so intermingled that fairness to both parties requires retrial on both. Cf. Nelson v. Trujillo, Utah, 657 P.2d 730, 735 (1982). In this case, we conclude that the retrial should involve damages as well as ...
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1 books & journal articles
  • Practice Pointers
    • United States
    • Utah State Bar Utah Bar Journal No. 2-2, February 1989
    • Invalid date
    ...a new trial is to be used in those rare cases when a jury verdict is manifestly against the weight of the evidence"); Nelson v. Trujillo, 657 P.2d 730,/32 (Utah 1982). [28]See Crookston, 81 7 P. 2d at 799 Later on in the same case, the court somewhat confusingly defines the standard of appe......

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