Young v. Hansen

• Decision Date: 29 June 1973
• Docket Number: No. 43827,43827
• Parties: Jeffrey YOUNG, a minor, by his father and natural guardian, William Young, and William Young, Respondents, v. Dale Lee HANSEN, Appellant.
• Court: Minnesota Supreme Court

Page 392

209 N.W.2d 392

296 Minn. 430

Jeffrey YOUNG, a minor, by his father and natural guardian William Young, and William Young, Respondents, v. Dale Lee HANSEN, Appellant.

No. 43827.

Supreme Court of Minnesota.

June 29, 1973.

Syllabus by the Court

1. The trial court correctly concluded that the evidence in this case presented a question for the jury on the issue of whether a pedestrian was negligent. Unless a verdict is manifestly and palpably contrary to the evidence viewed in the light most favorable to the prevailing party, it must be sustained by this court.

2. Plaintiff established by a fair preponderance of the evidence the extent to which impairment of earning capacity was reasonably certain to occur. The trial court did not err in instructing the jury that in assessing damages it could consider future loss or diminution in plaintiff's earning capacity.

3. Based upon the evidence, we conclude that the trial court properly exercised its judicial discretion in reducing the jury's verdict and that the verdict, as reduced, was not excessive.

4. In the absence of circumstances which might prejudice defendant, plaintiff's recovery is not limited to the amount of damages requested in his complaint.

5. Minn.St. 546.17, authorizing a jury in a civil action to return a verdict, after 6 hours of deliberation, upon agreement of five-sixths of its number, remains in force and continues to modify the provisions of Minn.St. 593.01, requiring a unanimous verdict by a petit jury.

Jardine, Logan & O'Brien and Michael J. Healey, St. Paul, for appellant.

Torinus & Knutson and Richard H. Knutson, St. Paul, for respondents.

Heard before OTIS, KELLY, MacLAUGHLIN, and GILLESPIE, JJ.

ROBERT B. GILLESPIE, Justice. ^*

Defendant appeals from judgments entered in favor of plaintiffs and from an order denying his motion for a new trial. Plaintiff Jeffrey Young, a minor, by his father, plaintiff William Young, sought damages for personal injury Jeffrey sustained when struck by defendant's car, and William Young sought consequential damages. The jury, upon a five-sixths verdict, found negligence on the part of defendant only and awarded $45,000 to Jeffrey and $555.55 to his father. The trial court granted a remittitur of $15,000. On appeal, defendant contends (1) that the court should have instructed the jury that plaintiff was negligent as a matter of law; (2) that the court erred in instructing the jury that it could consider future loss or diminution of plaintiff's earning capacity; (3) that the reduced verdict of $30,000 is excessive; (4) that the court had no jurisdiction to enter judgment in an amount greater than that requested in the pleadings; and (5) that a five-sixths verdict is no longer authorized by law.

About 6 p.m. on November 26, 1969, plaintiff Jeffrey Young, an 18-year-old pedestrian, was standing near his dump truck emptying garbage into the left side of the vehicle when he was struck by a 1967 Pontiac owned and driven by defendant, Dale Hansen. Plaintiff's truck was parked facing south at the west curb on Hamline Avenue North, a two-way road 50 feet wide. Defendant was proceeding south on Hamline Avenue. The street was wet and it was dark, but visibility was not affected by any adverse weather conditions nor were there any distracting circumstances or other traffic at the time of the accident. Plaintiff's truck was properly lighted with taillights and flasher clearance lights. Defendant did not see the truck until after the accident and did not see the plaintiff until he was 25 to 30 feet away. Plaintiff had started across Hamline Avenue from east to west and had observed the lights of an oncoming car about 3 blocks away. As he reached half way into the east half of the street, he looked again and observed no traffic except the lights of a car coming south at a slow rate of speed further down the road. Plaintiff never looked for traffic again as he walked quickly across the street to his truck. Plaintiff was struck by the right front portion of defendant's car and was thrown about 70 feet by the impact. He was knocked unconscious and taken to a hospital. His legs were numb but X-rays disclosed no broken bones. He spent 1 week in bed plus 1 week of house confinement and suffered pains in his legs and back. He was black and blue from his waist down; his right leg was red and swollen; and he had difficulty in walking or bending. On December 2, 1969, he first visited his doctor who treated him from time to time with pain pills and therapy for a period of about 2 years. His doctor testified that an indentation in plaintiff's right thigh was caused by ruptured muscles in the thigh and the destruction of muscle fibers with resultant neurocirculatory disturbance in the leg. The doctor gave his medical opinion that plaintiff has a limited permanent disability in the area of the thigh as a result of the injuries he received in the accident. Evidence was offered that plaintiff suffered stiffness and coldness in his right leg with considerable pain from the date of the accident to the date of trial in February 1972; that he tired easily, was curtailed in ordinary physical activities, such as running and stooping, and found it very difficult and painful to waterski or hunt; that he was unable to carry on the work required in a mechanic's job for which he had been trained at a vocational school and had quit after 2 months in October 1971 because the work was too painful. Two weeks from the date of the accident, plaintiff returned to work on his rubbish-hauling business to a limited extent, driving the truck and handling lighter loads. In the spring of 1970 and thereafter, he carried on his business, working 3 to 6 hours a day, seasonally, 3 to 5 days a week, but he testified he tired quickly and experienced pain and discomfort in his right leg. His proven loss of income to the date of trial was approximately $300.

1. The evidence in the case amply justified the jury in finding defendant negligent and that his negligence was a direct cause of the accident. Contrary to defendant's contention that the trial court was in error in refusing to find plaintiff negligent as a matter of law, the facts of the case presented a jury question on that issue, and the jury found that plaintiff was not negligent. The applicable law was fairly and adequately presented to the jury in the trial court's instructions, which included the following portion of Minn.St. 169.21, subd. 3:

'Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.'

The court also instructed the jury generally that both a driver and pedestrian have a duty to keep a proper lookout. Unless a verdict is manifestly and palpably contrary to the evidence viewed in the light most favorable to the prevailing party, it must be sustained by this court. Richie v. Elmquist, 283 Minn. 375, 168 N.W.2d 332 (1969). The jury by its verdict may well have adopted the view that plaintiff had completed his crossing of the street and was in the act of unloading his rubbish basket into his truck while standing close to the truck and that in so doing was exercising due care. This determination was justified by the evidence, and this court finds no quarrel with the jury's determination.

2. Defendant contends that there was insufficient evidence to warrant an instruction by the trial court that the jury in assessing damages could consider future loss or diminution in plaintiff's earning capacity. Where a permanent impairment or loss of earning capacity is claimed by a plaintiff, he must establish by a fair preponderance of the evidence the extent to which such impairment is reasonably certain to occur. Fifer v. Nelson, Minn., 204 N.W.2d 422 (1973); Carpenter v. Nelson, 257 Minn. 424, 101 N.W.2d 918 (1960). Loss or diminution of future earning capacity is an item of general damages. It permits recovery for loss or diminution of the power to earn in the future and is based upon such factors as the plaintiff's age, life expectancy, health, habits, occupation, talents, skill, experience, training, and industry. Wilson v. Sorge, 256 Minn. 125, 97 N.W.2d 477 (1959).

At trial, plaintiff testified that he still experienced pain after working, that his back became stiff and sore and that he had sustained some loss of strength in it, and that his right leg became weaker the longer he worked. Further, he testified that he was unable to stay in the cold for any period of time due to the coldness in his feet. Plaintiff's doctor concluded that the accident had caused the rupture of muscle fibers in plaintiff's thigh and as a result plaintiff suffered a limited permanent disability. In light of such evidence, we conclude that the trial court did not err in instructing the jury regarding future loss or diminution of earning capacity.

3. Defendant further contends that the verdict, even reduced to $30,000 by order of the trial court, is excessive and was influenced by passion and prejudice. The trial court granted a remittitur of 1/3 of the jury's award of $45,000, concluding that the sum of $30,000, though liberal, did not shock...