Sikes v. Garrett ( 1977 )

SCOTT, Justice

(dissenting).

While the evidence supports the finding that the plaintiff was negligent in either placing his bicycle where he did or in failing to keep a proper lookout for his own safety, the evidence also supports the jury’s finding that the defendant failed to use the reasonable care which a reasonable person should exercise under like circumstances. In fact, defendant admitted that she did not have her mind on driving at the time of the accident, and it was not conclusively established that plaintiff was in a “blind spot” which precluded defendant from observing him by the exercise of reasonable care.

Upon rehearing, we stated in Riley v. Lake, 295 Minn. 43, 58, 203 N.W.2d 331, 340 (1972):

“At best it would seem that, unless the evidence is so conclusive that reasonable minds can come to only one conclusion, the question of the apportionment of causal negligence should be left to the jury. We are dealing with a new concept of negligence with which this court has had little experience. Under our former contributory negligence law, defendant would be entitled to a directed verdict under the evidence in this case. Under comparative negligence, the question is: How do we treat apportionment of negligence of the respective parties where it appears that one of the parties was guilty of negligence as a matter of law? On rehearing by the court en banc, we have concluded that, except in those rare cases where there is no dispute in the evidence and the factfinder could come to only [one] conclusion, the apportionment of negligence should be left to the jury.”

Therefore, where there is sufficient evidence to support a jury finding that both parties are negligent, we should not disturb the jury’s apportionment of negligence. Steinhaus v. Adamson, 304 Minn. 14, 20, 228 N.W.2d 865, 869 (1975).

In the case at hand, the jury had sufficient evidence upon which to find both parties negligent, and its apportionment of 85 percent of the negligence to defendant should be allowed to stand.

I respectfully dissent and would reverse and reinstate the jury’s verdict.