Plaintiff Sonja King (“plaintiff”) sued for injuries suffered after defendant Fereday’s truck struck plaintiff’s car and for aggravation of those injuries and for subsequent injuries arising out of a collision with Joe Barron. Plaintiff Michael King (“Mr. King”) sued defendants for loss of consortium. Prior to trial, the judge dismissed Mr. King’s action for failure to state a claim, severed this suit from the one brought by plaintiff against Joe Barron, and denied a part of plaintiffs’ motion in limine. After trial, the jury found Fereday (“defendant”) zero percent negligent and plaintiff one hundred percent negligent. The trial judge denied plaintiffs’ motions for judgment notwithstanding the verdict and for a new trial. Both plaintiffs appeal the decisions below. We affirm.
Plaintiff and defendant were traveling south on Van Winkle Expressway on December 13, 1978. Both stopped at the red *620 light located at the 6100 South intersection. Plaintiff and defendant proceeded through the intersection when the light turned green. The traffic in front of plaintiff came to an abrupt stop, and she “hit her brakes” to avoid hitting the car in front of her. Defendant, who was directly behind plaintiff, could not stop in time and collided with plaintiff.
At the time of the accident, it was dark, the traffic was heavy, and the pavement was dry. The investigating officer estimated that defendant’s speed was approximately two miles per hour at the moment of impact, basing this approximation on the amount of damage to the two vehicles. Defendant testified that he had not shifted out of first gear at the time of the collision, and plaintiff testified that defendant did not hit her car with sufficient force to move her vehicle forward.
Plaintiff had been involved in four car accidents before the 1978 accident. She suffered neck injuries as a result of the immediately preceding accident, but she testified that the symptoms had vanished prior to the 1978 accident. After the 1978 accident, however, she began to suffer neck pain and sought treatment from several physicians and therapists. She eventually underwent surgery and had almost fully recovered when Joe Barron collided with her in 1982.
I
Plaintiff alleges first that the trial court erred in refusing to grant her motion for a judgment notwithstanding the verdict. A trial court should grant a motion for judgment notwithstanding the verdict if, after viewing the evidence in the light most favorable to the non-movant, it finds that no competent evidence supports the verdict. In reviewing the trial court’s determination on such an issue, this Court must apply the same standard.
Gustaveson v. Gregg,
With respect to the jury’s finding of zero percent negligence as to defendant, plaintiff argues that defendant’s conduct constituted a violation of Utah Code Ann. § 41-6-62 (1981) and therefore constituted prima facie evidence of negligence which defendant failed to refute. Section 41-6-62 prohibits the following of a vehicle “more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” (Emphasis added.) Nothing in the record indicates, however, that any proceeding occurred that adjudicated whether defendant’s conduct constituted a violation of the statute. Plaintiff’s argument therefore assumes that the fact of the collision alone establishes a violation of the statute. In McCloud v. Baum, this Court held that a collision alone does not create an inference of negligence. Id. at 1127-28. Because the statute requires a showing of negligent conduct on the part of the person who allegedly violated the statute, plaintiff must prove the same lack of care in order to establish a violation of the statute as she must prove to establish her negligence case. Absent an adjudication of a violation in a prior proceeding, she cannot rely on the statute to establish negligent conduct on defendant’s part.
Because the record does not indicate that defendant violated section 41-6-62, the only possible basis for error in denying plaintiff's motion for judgment notwithstanding the verdict is that the record lacks evidence to support the jury’s determination of zero percent negligence with respect to defendant. In viewing the evidence in the light most favorable to defendant, we find that the record contains substantial evidence to support the jury verdict. The evidence indicated that the traffic stopped suddenly and plaintiff “hit her brakes” to avoid colliding with the car in front of her. She also testified that she told the investigating officer not to give defendant a ticket because the traffic was *621 so bad that “we could all have hit each other.” All of this evidence and the inferences therefrom support the jury verdict of no negligence on defendant’s part; therefore, the trial court did not err in refusing plaintiff’s motion for judgment notwithstanding the verdict. 1
Plaintiff next contends that the trial court abused its discretion in refusing her motion for a new trial. The trial court has discretion to grant or deny a motion for a new trial made pursuant to Utah Rule of Civil Procedure 59, and this Court will not reverse that decision absent an abuse of discretion.
Barson v. E.R. Squibb & Sons, Inc.,
Plaintiff next argues that the trial court should have granted her motion for a new trial based on the alleged prejudicial error resulting from the trial court’s use of defendant’s jury instructions on unavoidable accident and unexpected peril and from the trial court’s refusal to use plaintiff’s requested instructions on liability admitted or determined as a matter of law and subsequent aggravation of injury. The record does not indicate that plaintiff objected to the use of or refusal to use the first three instructions. Utah Rule of Civil Procedure 51 precludes a party from assigning as error the “giving or the failure to give an instruction” unless the party objects either before the court instructs the jury or after the court instructs but before the jury retires for deliberations.
Barson,
Although Utah Rule of Civil Procedure 51 empowers this Court to review the giving of or failure to give instructions “in its discretion and in the interests of justice” where counsel has failed to make a timely objection to the instructions, the aggrieved party must present a persuasive reason for the Court to invoke its discretion.
E.A. Strout Western Realty Agency, Inc.,
As to plaintiffs requested and refused instruction concerning aggravation of injury, counsel submitted a memorandum in support of such an instruction. The memorandum, which is part of the record, preserves the assignment of error for appeal. We do not, however, consider the propriety of the trial court’s ruling because any error in the refusal to give the instruction was harmless. This Court “may reverse a trial court judgment only if there is a reasonable likelihood that, absent the error, there would have been a result more favorable to the complaining party.”
In re Estate of Kesler,
The harmless error rule also disposes of plaintiff’s assignment of error concerning the trial court’s refusal to grant her entire motion in limine. The trial court refused plaintiff’s motion to exclude evidence about plaintiffs’ marital difficulties, the tax consequences of a potential recovery, the characteristics of the defendant corporation, and the separate action pending against Joe Barron. The only allegations of prejudice arising from the ruling on the motion in limine go to the effect the evidence would have on the jury’s assessment of damages. As with the alleged error in the requested jury instruction, the jury’s finding of no negligence on defendant’s part makes the issue of damages irrelevant; therefore, any error in the ruling on the motion in limine is harmless.
Plaintiff next assigns as error the severance of the causes of action against defendant and Joe Barron. Again, the harmless error rule disposes of this issue. The two accidents have no relationship to each other except to the extent they affected plaintiff’s aggregate damages; therefore, the only prejudice possible would arise from the effect the severance would have on the jury’s assessment of damages. The jury’s finding of no negligence renders harmless any error in granting the severance.
In her brief, plaintiff alleges that the prejudice to her case arising out of the trial court’s severance of the causes of action caused the jury to find defendant not negligent in order to avoid the difficult task of apportioning damages between defendant and Joe Barron. In order for this Court to accept this argument, we would have to engage in pure speculation as to the jury’s motive in making its allocation of negligence between plaintiff and defendant. We decline to make such a speculation.
Finally, plaintiff assigns as error the trial judge’s refusal to ask certain questions during the
voir dire
of the jury. Plaintiff requested questions to elicit information that would indicate juror bias against personal injury suits, large damages awards, and awards of specific kinds of damages and any connection the jurors might have with defendant’s insurance carrier. In
Maltby v. Cox Construction Co.,
Second, plaintiff failed to include in the record the questions actually asked during the jury voir dire. As a result, a determination that the trial court abused its discretion in its voir dire of the jury would require speculation on our part. Without a record of the voir dire questions actually asked, we cannot determine if the trial judge’s questions denied plaintiff the information necessary to challenge biased jurors for cause.
II
Mr. King assigns as error the trial court’s dismissal of his claim against defendant for loss of consortium. The trial court dismissed this claim, holding that Mr. King had failed to state a cause of action. Our recent decision in
Hackford v. Utah Power & Light,
We affirm.
Notes
. Plaintiff has also challenged the jury verdict finding her one hundred percent negligent. In view of our holding on the judgment not withstanding the verdict issue, we do not reach this portion of the jury’s verdict.