                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2079

                   Julie Ann Holtegaard and David William Streng,
          Co-Trustees for the Next-of-Kin of Bruce Edward Streng, deceased,
                                      Appellants,

                                         vs.

                            Soo Line Railroad Company,
                                    Respondent

                                 Filed July 14, 2014
                                      Affirmed
                                   Worke, Judge

                            Winona County District Court
                      File Nos. 85-CV-11-1332, 85-CV-11-514

Sharon L. Van Dyck, Van Dyck Law Firm, PLLC, St. Louis Park, Minnesota (for
appellants)

Timothy R. Thornton, Jonathan P. Schmidt, Briggs & Morgan, P.A., Minneapolis,
Minnesota (for respondent)

      Considered and decided by Worke, Presiding Judge; Stauber, Judge; and

Klaphake, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

WORKE, Judge

       Appellants, next of kin of decedent who was fatally injured by a train, argue that

they are entitled to a new trial because the evidence does not support the jury’s award of

zero damages and because the district court improperly instructed the jury on primary

assumption of risk. Because the evidence supports the jury’s award of no damages, we

affirm without reaching the jury-instruction challenge.

                                         FACTS

       On October 19, 2009, at approximately 6:40 a.m., Bruce Edward Streng (Streng)

was walking across the Soo Line/CP Railway tracks at the Johnson Street Crossing in

Winona, Minnesota. As Streng moved quickly to cross the tracks, he stumbled, which

caused him to fall forward onto the main track crossing and to be fatally injured by an

oncoming train. On June 20, 2011, appellants Julie Ann Holtegaard and David William

Streng, co-trustees for the next-of-kin of Streng, filed a wrongful-death case against

respondent Soo Line Railroad Company.

       During a jury trial, Streng’s family testified about their relationships with Streng

and the damages that they suffered as a result of his death. Streng’s sister testified that

she saw her brother once a week. She described him as her “best friend,” and stated that

he helped her through in life. Streng’s brother did not testify. Streng’s nephew testified

that Streng was his “favorite uncle” and a positive role model for him when he was a

child, but acknowledged that he did not see much of him when he got older and that in




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2008 and 2009 Streng did not provide guidance or financial assistance. Streng’s niece

testified that she saw little of Streng between 2003 and 2009 and could not recall the last

time that she saw Streng. Streng’s niece testified that in 2008 and 2009, Streng did not

provide her with guidance, advice, or assistance. There is little in the record showing

any interactions between Streng and his family in the last 20 years.

       Regarding the burden of proof for damages, the district court instructed the jury:

              A party asking for damages must prove the nature, extent,
              duration, and consequences of his or her harm. You must not
              decide damages based on speculation or guess.
              When you consider damages for [] Streng’s family, determine
              . . . an amount of money that will fairly and adequately
              compensate his family members for the losses they suffered
              as the result of his . . . death.
                     You should consider what [] Streng would have
              provided to them if he had lived. You should consider: [1] his
              relationships in the past, [2] his life expectancy at the time of
              the death, [3] his health, age, habits and talents, [4] the
              counsel guidance and aid he would have given his family
              members, [and 5] the advice, comfort, assistance,
              companionship and protection that [] Streng would have
              given if he had lived.
                     ....
              Do not include amounts for: [1] punishing the defendant,
              [2] grief or emotional distress of the next of kin, or [3] the
              pain and suffering of [] Streng before his death.
       The jury returned a verdict in favor of the railroad on liability and awarded no

damages. This appeal followed.




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                                      DECISION

       Appellants argue that they are entitled to a new trial because the jury awarded no

damages despite unrebutted testimony to the contrary. A district court may grant a

motion for a new trial if there were “[e]rrors of law occurring at the trial, and objected to

at the time,” or if the verdict “is not justified by the evidence, or is contrary to law.”

Minn. R. Civ. P. 59.01(f), (g). “Because the decision to grant or deny a motion for a new

trial rests largely within the discretion of the district court, we review the district court’s

decision for clear abuse of discretion.” Frazier v. Burlington N. Santa Fe Corp., 811

N.W.2d 618, 625 (Minn. 2012). This court will reverse a district court’s decision on a

motion for a new trial only when the “decision involves a violation of a clear legal right

or a manifest abuse of discretion.” Blatz v. Allina Health Sys., 622 N.W.2d 376, 387

(Minn. App. 2001), review denied (Minn. May 16, 2001). The possibility that another

trial may bring about an opposite result is not grounds for a new trial. Heggestad v.

Dubke, 304 Minn. 129, 132, 229 N.W.2d 34, 36 (1975).

       A reviewing court should not set aside a verdict on damages “unless it is

manifestly and palpably contrary to the evidence viewed as a whole and in the light most

favorable to the verdict.” Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999) (quotation

omitted). “If the jury’s special verdict finding can be reconciled on any theory, the

verdict will not be disturbed.” Hanks v. Hubbard Broadcasting, Inc., 493 N.W.2d 302,

309 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). “[T]he plaintiff has the

burden of proving damages caused by the defendant by a fair preponderance of the

evidence.” Canada by Landy v. McCarthy, 567 N.W.2d 496, 507 (Minn. 1997).


                                              4
       Here, the district court instructed the jury to consider, among other things, the

relationships Streng had with his family and the counsel, guidance, aid, advice, comfort,

assistance, companionship and protection he would have given had he lived. See Minn.

Stat. § 573.02 (2012) (stating that recovery in a wrongful-death action is the amount the

jury deems fair and just in reference to the pecuniary loss resulting from the death);

Youngquist v. W. Nat’l Mut. Ins. Co., 716 N.W.2d 383, 386 (Minn. App. 2006) (listing

factors for a jury to consider in awarding pecuniary damages). The jury was not to

consider grief or emotional distress of the next of kin. See Steinbrecher v. McLeod Co-

op. Power Ass’n, 392 N.W.2d 709, 714 (Minn. App. 1986) (excluding grief and mental

anguish from wrongful-death measure of damages). The evidence, when viewed most

favorable to the verdict, justifies the zero-damages finding.

       Streng was unmarried and had no children.          His family testified about their

relationships with Streng. But the relationships were distant—particularly in the years

preceding his death. When asked about the counsel, guidance, aid, advice, comfort,

assistance, and companionship that would merit compensation for future pecuniary loss,

Streng’s niece and nephew acknowledged none. Exhibits presented to the jury depicted

family events from the distant past, taking place more than 20 years before Streng died.

Streng’s brother did not testify, leaving no basis for an award of damages, and Streng’s

sister testified that they occasionally talked and shared beers, but identified no loss of

counsel, guidance, aid, advice, comfort, assistance, or companionship that bears on

pecuniary income. This evidence supports the jury’s zero-damages award.




                                             5
       The death of a loved one inflicts great pain, but the law does not permit financial

recovery for other than pecuniary loss. See Minn. Stat. § 573.02; see also Steinbrecher,

392 N.W.2d at 714 (excluding grief and mental anguish when measuring pecuniary loss

in wrongful-death action). Therefore, the district court did not abuse its discretion by

denying appellants’ motion for a new trial based on an inadequate damages award.

       Because there was no legal basis for an award of damages on the evidence

presented, we do not reach the challenge to the jury instructions.

       Affirmed.




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