Sikes v. Garrett, 47282

• Decision Date: 23 December 1977
• Docket Number: No. 47282,47282
• Citation: 262 N.W.2d 681
• Parties: Thomas W. SIKES, Appellant, v. Deborah GARRETT, Respondent.
• Court: Minnesota Supreme Court

Page 681

262 N.W.2d 681

Thomas W. SIKES, Appellant, v. Deborah GARRETT, Respondent.

No. 47282.

Supreme Court of Minnesota.

Dec. 23, 1977.

Syllabus by the Court

Where the facts in evidence would not sustain the jury's finding defendant's negligence as great as or greater than plaintiff's negligence, the trial court properly granted judgment notwithstanding the verdict.

Bruce W. Okney, Crystal, for appellant.

Barnett, Ratelle, Hennessy, Vander Vort, Stasel & Herzog, and W. Scott Herzog, Minneapolis, for respondent.

Considered and decided by the court without oral argument.

YETKA, Justice.

Plaintiff, Thomas W. Sikes, appeals from judgment entered in the Hennepin County District Court on September 20, 1976, pursuant to the granting of a motion by defendant, Deborah Garrett, for judgment notwithstanding the special verdict. We affirm.

The instant action arises out of an automobile-bicycle collision occurring on September 3, 1973, at the Hennepin Avenue-Groveland intersection in Minneapolis. The record indicates that defendant was operating the automobile in an attempt to enter the southbound Hennepin Avenue lane and was, immediately prior to the collision, stopped at a semaphore at the Hennepin-Groveland intersection. Plaintiff operated his bicycle in an attempt to completely cross Hennepin Avenue to continue eastbound on Groveland Avenue. Both parties were fully familiar with the neighborhood and this particular intersection.

The intersection and the description provided by the parties is somewhat confusing; to minimize this confusion, the following diagram should explain the physical setting:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Defendant's automobile was stopped to await the changing of the semaphore to green and she had turned her right-hand turn signal on. One of the problems with this intersection is that approximately 1 block south, the two southbound Hennepin lanes split to allow an entry from the left lane to Lyndale Avenue and I-94 East, while the right lane simply continues as Hennepin Avenue. It was defendant's intention to enter I-94 East, so it was necessary that she immediately reach the left lane; this is exhibited on the diagram.

Plaintiff approached that same intersection from Douglas Avenue and positioned his bicycle between defendant's automobile and the curb. He estimated that that distance between the car and the curb was 5 to 6 feet wide, while the defendant testified that it was 2 to 3 feet. In either event, as he approached perpendicular to her car and stopped behind the front of the vehicle (at approximately the right rear door), he was not able to observe her turn signal.

Both parties proceeded into the intersection when the light turned green. Defendant testified that she did not see the plaintiff until after the impact, although she did inspect the intersection before negotiating the right turn. The collision occurred north of the crosswalk when the bicycle was struck by the rear panel of the car.

Plaintiff suffered a fractured right clavicle and introduced evidence of medical expenses of $40, $137, and $161, and a wage loss of $1,200. In addition, the damage to his bicycle was claimed in the amount of $82.42. The record indicates that the injury left no residual or permanent damage.

The matter was submitted to the jury which, by special verdict dated May 21, 1976, found that plaintiff was entitled to recover $4,726, with interest, from defendant. Defendant then moved the court for judgment notwithstanding the verdict upon the bases that the verdict was not justified by the evidence and that the dollar verdict was the obvious result of a compromise and not based upon fact. By order dated June 7, 1976, the court granted defendant's motion, reasoning that it failed to see that plaintiff in any way established that defendant was negligent. Rather, the court seemed to suggest that plaintiff was the negligent party, basing that conclusion on plaintiff's failure to position his bicycle in such a manner that he could see the turn signal or that he could be seen by defendant. The court stated:

" * * * Her (defendant) position on the roadway close to the curb should have suggested to him that she was going to make a right turn, and the Plaintiff was extremely negligent in proceeding straight ahead without taking proper precautions to protect himself in the event that she did make a right turn."

A motion for judgment notwithstanding the verdict admits every inference reasonably to be drawn from the evidence and should be granted only when there is no competent evidence reasonably tending to sustain the verdict. Seidl v. Trollhaugen, Inc., 305 Minn. 506, 232 N.W.2d 236 (1975); Filas v. Daher, 300 Minn. 137, 218 N.W.2d 467 (1974). Required is a review of the entire evidence. Kleven v. Geigy Agricultural Chemicals, 303 Minn. 320, 227 N.W.2d 566 (1975).

The record indicates that defendant had stopped and was in a proper position for a right turn; in addition, she asserted that she had engaged her turn signal. Plaintiff was not able to refute the statement. Finally, defendant had satisfied all the statutory prerequisites to making a right turn, including speed and lookout.

It would appear that plaintiff created the dangerous situation by his own actions. Minn.St. 169.221, subd. 1, specifically states that all...