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| [1] | THE COURT OF APPEALS OF THE STATE OF MISSOURI SOUTHERN DISTRICT |
| [2] | Case Number: 23361 |
| [3] | 2001.MO.0000635 <http://www.versuslaw.com> |
| [4] | June 27, 2001 |
| [5] | CAROLYN M. VINTILA, RESPONDENT v. DENNIS L. DRASSEN, A & G TRUCKING, AND AMEGA MOBILE HOME SALES, INC., APPELLANTS. |
| [6] | Counsel for Appellant: Thomas J. Noonan and Stephen J. Barber Counsel
for Respondent: Robert D. Brown, David Phillips and John L. Oliver, Jr. |
| [7] | The opinion of the court was delivered by: Kerry L. Montgomery, Judge |
| [8] | Appeal From: Circuit Court Carter County, Hon. R. Jack Garrett |
| [9] | Opinion Vote: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. |
| [10] | Parrish, P.J., and Shrum, J., concur. |
| [11] | This case involves a personal injury claim by Carolyn M. Vintila (Respondent)
against Dennis L. Drassen, A & G Trucking, and Amega Mobile Home Sales,
Inc. (Appellants) stemming from an automobile accident. After the car in
which Respondent was a passenger collided with a truck driven by Drassen,
Respondent filed suit against Appellants. A jury found in favor of Respondent
and assessed $1.5 million in damages against Appellants. This appeal followed. |
| [12] | Appellants raise eight points on appeal. Several points challenge the
sufficiency of the evidence in support of the judgment; therefore a detailed
rendition of the evidence presented at trial is necessary. In accordance
with our standard of review, the factual summary is presented in the light
most favorable to Respondent, the prevailing party at trial. See Fabricor,
Inc. v. E.I. DuPont de Nemours & Co., 24 S.W.3d 82, 85 (Mo.App. 2000). |
| [13] | A & G and Amega hired Drassen to drive a truck transporting a 14-foot-wide,
half-section of a mobile home from Alabama to Neosho, Missouri. Although
Missouri law prohibits the operation of a vehicle with a width in excess
of 96 inches (8 feet) upon the highways, the Missouri Department of Transportation
authorized Drassen to transport the mobile home under the terms of a special
permit for over-wide loads. The permit provided, in pertinent part, that
Drassen could not be move the oversize load between the hours of 4:00 p.m.
and 6:00 p.m. and that he must maintain a distance of a least 1,000 feet
between oversized loads. The permit also provided that, if necessary, traffic
should be stopped at bridge crossings. |
| [14] | October 13, 1995, Drassen was transporting the mobile home section westbound
on Highway 60, a two-lane road in Carter County, Missouri. Two escort vehicles
and a second truck, which was hauling the other half-section of the mobile
home, accompanied Drassen. The escort vehicles bore signs reading "Oversized
Load" on the top and back, drove with the headlights on and had flashing
lights and flags on the back. The group traveled together in a caravan.
One escort vehicle was leading the way. Next came the truck operated by
the other driver, followed by a second escort vehicle. The truck operated
by Drassen was the last in the procession. |
| [15] | At approximately 5:30 p.m., the caravan approached the Carter Creek Bridge,
a two-lane bridge on Highway 60. The bridge is 159 feet long and 27 feet
7 inches wide from wall to wall. The roadway is 23 feet 4 inches wide, with
each lane being approximately 12 feet across. |
| [16] | The caravan's usual practice when crossing a bridge was for the escorts
to go ahead of the trucks to make sure the bridge was clear and to attempt
to stop as many other vehicles as possible. The escorts would use CB radios
to communicate with the drivers of the trucks and warn them about oncoming
vehicles. When oncoming traffic was already coming across the bridge, the
escorts would inform the truck drivers so that they could slow down and
stop until the traffic passed. |
| [17] | On the day of the accident, the caravan continued across the bridge in
the order in which they had been traveling. They shortened the distance
between the vehicles to approximately 330 feet in order to drive across
the bridge more quickly. The 14-foot wide sections of the mobile home were
so wide in relation to the two-lane bridge that they had to be driven down
the middle of the bridge, straddling the center line. |
| [18] | The lead escort saw a vehicle approach the bridge and come to stop as
far to the side of the road as possible. The escort advised the others that
the vehicle was letting them pass and kept going. The escort made no attempt
to flag down other vehicles or stop traffic in order for the oversized loads
to cross the bridge. |
| [19] | Once across the bridge, the lead escort noticed a pickup truck moving
eastbound toward the bridge. Theodore Vintila, Respondent's husband, was
driving the oncoming pickup truck, with Respondent in the front passenger
seat. The lead escort radioed to the other drivers that the pickup truck
was coming. The pickup truck passed the lead escort vehicle, the first truck
and the second escort vehicle after they had already crossed the bridge. |
| [20] | Drassen's vehicle was still approximately 25-feet from the bridge when
he saw the pickup coming toward him. When Drassen first saw the pickup truck,
its brakes were locked up, smoke was coming from its tires and it was sliding
within its eastbound lane. Drassen testified he believed he could still
get across the bridge as long as the pickup stayed within its own lane.
Drassen continued forward. The driver of the pickup appeared to let off
of the brakes and then hit them again. As Drassen exited the bridge, the
pickup truck skidded into Drassen's lane of traffic and the vehicles collided.
Theodore Vintila died as a result of his injuries from the collision and
Respondent sustained multiple injuries. |
| [21] | Following the collision, Trooper David Martin of the Missouri Highway
Patrol arrived at the scene. The pickup truck driven by Vintila was in the
eastbound lane facing west. Trooper Martin determined that the pickup left
two sets of skid marks and took measurements at the scene. The first skid
marks were 104 feet long. The area immediately after the initial skid was
devoid of any marks. Then came another 33 feet of skid marks that went from
the eastbound lane into the westbound lane. Drassen's truck left 41 feet
of skid marks. |
| [22] | On August 22, 1996, Respondent filed a petition against Appellants alleging
that Dressen was an agent of A & G and Amega and that his negligence
was the proximate cause of the collision and resulting injuries. Respondent
alleged several acts of negligence on the part of Drassen including, but
not limited to, failing to stop when he should have known there was a reasonable
likelihood of a collision, driving an overwidth [sic] vehicle on a road
at a time not permitted by law, and failing to maintain a proper distance
between vehicles. Respondent also made a claim against her husband's estate
and his insurance company. She settled this separate claim for $25,000. |
| [23] | On July 28, 1999, a jury trial was held on the matter. At trial, William
Hampton, an accident reconstructionist testified on Respondent's behalf.
Hampton testified he was familiar with Missouri regulations relating to
the movement of overweight and overdimension vehicles. He also stated he
was familiar with the special permits required for such vehicles. Hamption
testified that he relied on the regulations when analyzing the case. |
| [24] | Hampton testified that prohibition against oversized vehicles traveling
the roads between 4:00 and 6:00 p.m. was designed to promote safety. The
regulation prevents oversized vehicles from crowding the road during times
of increased traffic. Hampton testified that based upon his experience as
a state trooper he was aware that during the curfew times there was increased
traffic on Carter Creek Bridge. He also noted that the restriction alleviates
visibility problems for drivers due to sunset. Hampton suggested there was
"some possibilities" that the position of the sun played a part
in the accident based upon testimony of the driver behind Drassen that the
sun was "really in her eyes" and that "she could not see
what she was coming up on." |
| [25] | Hampton then testified concerning the requirement that oversized vehicles
maintain a distance of 1,000 feet when traveling together. Hampton stated
that the regulation was designed to promote safety by enabling traffic to
easily pass the oversized vehicles. The distance also provides more reaction
time and visibility than if the oversized vehicles were closer together.
Hampton concluded that a distance of only 330 feet separated the two oversized
vehicles in the convoy. |
| [26] | Based upon Drassen's deposition testimony, Hampton calculated that when
Drassen saw Vintila's vehicle begin to skid, he had 240 feet before the
point of impact. Based upon a speed of 30 miles per hour, the speed Drassen
said he was driving in deposition testimony, and utilizing the standard
reaction time, Hampton opined that Drassen had time to stop if he had chosen
to do so. Hampton further concluded that Drassen had time to stop prior
to impact even if his vehicle had been traveling at 45 miles per hour. |
| [27] | According to his testimony, Drassen recognized that his permit prohibited
transportation of the 14-foot wide section of the mobile home between the
hours of 4:00 and 6:00 p.m. He testified, however, that he would occasionally
violate the curfew. Dressen was also aware that the permit required a 1,000
foot distance between oversized loads. He testified that he had violated
this condition "many times." |
| [28] | After hearing the evidence, the jury returned a verdict in favor of Respondent
and assessed damages at $1.5 million. This appeal followed. |
| [29] | In their first point relied on, Appellants claim the trial court erred
in submitting Instruction Number 6, the verdict director, because it was
based upon an erroneous standard of care and allowed the jury to assess
liability on improper grounds. Specifically, Appellants contend Instruction
Number 6 was incorrectly based upon the requirements of 7 C.S.R. 10-2.010,
the oversized vehicle permit, rather than section 304.170.1 *fn1,
the statute prohibiting the operation of vehicles more than 8 feet in width. |
| [30] | "In reviewing the submissiblity of an instruction, an appellate court
views the evidence and reasonable inferences in the light most favorable
to the instruction and disregards all contrary evidence." Deckard v.
O'Reilly Automotive, Inc., 31 S.W.2d 6, 18 (Mo.App. 2000). For instructional
error to rise to the level of reversible error there must be a showing of
prejudice. Rains v. Herrell, 950 S.W.2d 585, 588 (Mo.App. 1997). Such error
exists only if the merits of the case were affected by the erroneous instruction.
Id. This court will reverse a jury verdict on the grounds of instructional
error only if the instruction in question misdirected, misled, or confused
the jury. Id. |
| [31] | In the instant case, Instruction Number 6 provided: |
| [32] | Your verdict must be for [Respondent], Carolyn Vintila, against [Appellants,
A & G trucking, Amega Mobile Home Sales, Inc., and Dennis Drassen if
you believe: |
| [33] | First, either: |
| [34] | [Appellants] hauled a 14 foot wide load on the two-lane highway of less
than 28 feet between the hours of 4:00 p.m. and 6:00 p.m., or, |
| [35] | [Appellants] failed to stop traffic on the two lane highway, when necessary,
where the bridge width is less than 28 feet, before crossing the bridge,
or, |
| [36] | [Appellants] failed to maintain a distance of at least 1000 feet between
oversized loads, or, |
| [37] | [Appellants'] driver knew or by the use of the highest degree of care
could have known that there was a reasonable likelihood of collision in
time thereafter to have stopped, but [Appellants'] driver failed to do so,
and, |
| [38] | Second, |
| [39] | [Appellants] were thereby negligent, and |
| [40] | Third, |
| [41] | Such negligence directly caused or contributed to cause damage to [Respondent] |
| [42] | Appellants argue this language reflects the requirements of the oversized
load permit, thereby setting forth an inappropriate standard of care in
a negligence action based upon the operation of an oversized vehicle. They
contend the verdict director should have been restricted to include only
the terms of section 304.170.1, a blanket prohibition against loads in excess
of 96-inches. |
| [43] | Section 304.170.1 prohibits the operation of any vehicle on Missouri highways
with a width exceeding 96 inches. However, section 304.200.1 provides that
for good cause shown and when the public safety or public interest so justifies,
the chief engineer of the Missouri Department of Transportation may issue
special permits for vehicles exceeding the width restriction of section
304.170.1. Section 304.200.3 further authorizes the Missouri State Highway
and Transportation Commission to prescribe the rules and regulations for
the issuance of such special permits. |
| [44] | The applicable regulations governing the special permits authorized under
section 304.200 are contained in 7 C.S.R. 10-2.010. Drassen's special permit
was issued pursuant to these regulations. The permit included provisions
that excluded movement from 4:00 p.m. to 6:00 p.m. on all two-way traffic
routes and required the permittee to "properly warn traffic, adjust
speed and if necessary, stop traffic when crossing bridges where the load
exceeds one-half the roadway width of the bridge." |
| [45] | Appellants rely solely on King v. Morgan, 873 S.W.2d 272 (Mo.App. 1994)
for their proposition that the restriction against all loads over 96 inches
in length in section 304.170.1 established the appropriate standard of care
for the purposes of the jury instruction in this negligence case. In King,
the plaintiff was injured when standing on the shoulder of a highway doing
surveying work. Id. at 274. The defendant was driving a tractor-trailer
carrying an over-wide load. Id. When the tractor-trailor passed the plaintiff,
the over-wide portion of the load extended into the shoulder of the road
and struck the plaintiff, resulting in extensive injuries. Id. |
| [46] | Plaintiff filed a petition against the defendant alleging negligence.
At trial, the trial court refused two jury instructions submitted by the
plaintiff alleging negligence per se as a basis for recovery. Id. at 275.
Eventually the trial court submitted the plaintiff's claim on a theory of
ordinary or common law negligence and the jury returned a verdict in favor
of the defendant. King, 873 S.W.2d at 275. |
| [47] | On appeal, the plaintiff maintained the trial court erred in failing to
submit either of his proffered instructions based upon the defendant's negligence
per se in violating section 304.170.1. Id. The defendant attempted to use
the fact that he had been issued a special permit pursuant to section 304.200
to support his contention that he could not be held negligent per se for
violating the general prohibition against operating an oversized vehicle.
Id. at 277. The court of appeals determined the defendant failed to comply
with the terms of the permit, thereby rendering it void. Id. The court concluded
that because the permit was void at the time of the accident, the plaintiff
made a submissible case that defendant had violated section 304.170.1 and
the trial court erred in failing to instruct on negligence per se. Id. |
| [48] | King provides Appellants no support for their theory that the trial court
erred in submitting an instruction based upon the permit requirements. The
King court did not address the issue at hand, specifically, whether violations
of the permit regulations could be used in instructing the jury on acts
or omissions that could be found negligent. Rather, King involved a claim
of negligence per se based upon a statutory violation. |
| [49] | In King, the trial court submitted instructions based upon a more demanding
common law negligence standard and the court of appeals determined the permit
violations that rendered the permit void made it appropriate to give an
instruction based upon the less exacting standard of negligence per se for
violating section 304.170.1. Under a negligence per se instruction, the
plaintiff could recover if the jury merely found that the defendant violated
section 304.170.1 by operating a vehicle that exceeded 96 inches in width
and that violation was the proximate cause of the plaintiff's resulting
injuries. |
| [50] | Based upon this case, Appellants contend that if they violated the terms
of their special permit as Respondent alleged, the permit was void and the
prohibition against any vehicle exceeding a width of 96 inches was the applicable
standard of care. According to Appellants' reasoning, their admitted violations
of the permit restrictions against driving during the curfew hours and allowing
less than 1000 feet between vehicles would have rendered the permit void,
thereby subjecting them to a negligence per se instruction for their violation
of section 304.170.1. Under such an instruction, Respondent would have only
been required to show that Appellants operated a vehicle exceeding 96 inches
in width upon Missouri highways in violation of the statute and Respondent's
injuries were proximately caused by that violation. |
| [51] | Under Appellants' theory, Respondent would have had a lower burden of
proof than she did under the general negligence theory submitted to the
jury. The jury would no longer have to make the threshold inquiry as to
whether the evidence showed Appellants were negligent by violating each
of the individual permit requirements before determining if such negligence
was the proximate cause of the injuries. Instead, if the instruction were
based upon the theory of negligence per se, the jury would begin their inquiry
with the question of proximate cause. We are hard pressed to determine how
Appellants were prejudiced by the trial court's failure to submit the more
lenient standard set forth in King over the more demanding standard actually
used. |
| [52] | Furthermore, Missouri courts have often held that regulations such as
those promulgated by 7 C.S.R. 10-2.010 establish the appropriate standard
of care in a negligence case. See Giddens v. Kansas City S. R.R. Co., 29
S.W.3d 813, 821 (Mo.banc 2000) (determining OSHA regulations were competent
evidence of standard of care); Millard v. Corrado, 14 S.W.3d 42, 50 (Mo.App.
1999) (holding that doctor's failure to respond to calls within time prescribed
by regulation was evidence of negligence); Schneider v. Union Elec. Co.,
805 S.W.2d 222, 229 (Mo.App. 1991) (finding that OSHA regulation as evidence
of standard of care was appropriate in common law negligence case). "[A]
violation of the substance of pertinent rules may be hypothesized as evidence
supporting a finding of negligence." Giddens, 29 S.W.3d at 821. |
| [53] | We are not convinced that the instruction based upon the permit regulation
was erroneous. In addition, Appellants make no showing of prejudice. Therefore,
we find no error in submitting the Instruction Number 6. Point I is denied. |
| [54] | In their second point, Appellants contend the trial court erred in denying
their motions for directed verdict, judgment notwithstanding the verdict,
and for a new trial because Respondent failed to make a submissible case
that the Drassen's operation of the oversized vehicle in violation of section
304.170 caused or contributed to cause her injuries. Appellants maintain
that because the Vintila's vehicle collided with the front of the truck
rather than the oversized portion of the load, the injuries sustained by
Respondent were not the kind the statute was designed to prevent and the
size of the load did not contribute to cause such injuries. |
| [55] | Appeals from the trial court's denial of motion for directed verdicts
and a motion for judgment not withstanding the evidence are treated in the
same manner. Agribank FCB v. Cross Timbers Ranch, Inc., 919 S.W.2d 256,
258 (Mo.App. 1996). The primary inquiry is whether the plaintiff made a
submissible case, viewing all evidence in the light most favorable to the
prevailing party. Id. at 259. If one or more elements of a cause of action
are not supported by substantial evidence, the trial court should grant
a motion for directed verdict and for judgment notwithstanding the verdict.
Id. |
| [56] | An appellate court reviews the denial of a motion for a new trial for
abuse of discretion. City of Pleasant Valley v. Baker, 991 S.W.2d 725, 727
(Mo.App. 1999). An abuse of discretion is evident when "reasonable
persons could not differ as to the propriety of the action taken by the
trial court." Id. |
| [57] | Point II is erroneously premised upon the notion that the case was submitted
to the jury on a theory of negligence per se based upon a violation of section
304.170.1. As already noted in our earlier discussion, the case was actually
submitted upon a general negligence theory based upon Appellants' violation
of the curfew, failure to stop traffic, failure to maintain a distance of
1000 feet between loads, and failure to stop prior to the collision. Accordingly,
liability based upon a violation of section 304.170.1 was not before the
jury. Parties are not entitled to present theories on appeal different from
those upon which a case was tried. Nixon v. Greenlee, 928 S.W.2d 917, 920
(Mo.App. 1996). Point II is denied. |
| [58] | In Point III, Appellants allege the trial court erred in allowing the
admission into evidence of the permit and the regulations because they were
irrelevant. Appellants again contend the regulations were not intended to
prevent the accident at hand and any violations of such regulations did
not cause or contribute to cause the accident. |
| [59] | The argument in support of this point is inadequate. It consists of three
short paragraphs that make no attempt to explain the issues raised. Instead,
Appellants maintain the arguments in support of the point are "set
forth in full" in Point I and Point IV. Appellants offers no additional
support and fail to cite a single case supporting this point. Under Rule
84.04(d)(5), *fn2 "[f]ailure to cite
relevant authority supporting the point or to explain the failure to do
so preserves nothing for review." Kent v. Charlie Chicken, II, Inc.,
972 S.W.2d 513, 516 (Mo.App. 1998). Point III is denied. |
| [60] | Appellants next contend, in Point IV, that the trial court erred in denying
their motions for directed verdict, for judgment notwithstanding the verdict,
and for a new trial because Respondent failed to make a submissible case
based upon Appellants' alleged violations of the permit or applicable regulations.
Appellants assert they could not be found negligent for violating the curfew
and failing to maintain the required 1,000-foot distance between vehicles
because these requirements were not intended to prevent the collision at
issue and any such violations were not the proximate cause of Respondent's
injuries. |
| [61] | As already noted, in determining whether a plaintiff has made a submissible
case on a disputed factual issue, the evidence is viewed in the light most
favorable to the submission. Agribank, 919 S.W.2d at 259. When the evidence
is viewed in this light, Appellants' argument fails. |
| [62] | First, Appellants argue the regulations were not intended to prevent the
collision at issue. Appellants concede that the "clear purpose"
of the restriction against movement between 4:00 p.m. and 6:00 p.m. "was
to keep oversized loads off the road during the rush hours . . . when there
usually are increased number of persons on the road . . . ." However,
they argue there was no evidence at trial that there was an increase in
traffic at the Carter Creek Bridge during these hours. |
| [63] | Appellants completely ignore Hampton's testimony that, based upon his
experience as a trooper in the area, there was an increase of traffic on
the bridge during the restricted hours. It is the jury's duty to make credibility
judgments and they were entitled to believe Hampton's testimony. Ken Cucchi
Const. Inc., v. O'Keefe, 973 S.W.2d 520, 524 (Mo.App. 1998). Hampton's testimony
provided sufficient evidence that the curfew was designed to prevent an
accident, such as the one at hand, on a narrow roadway during a time of
increased traffic. |
| [64] | Next, Appellants argue the regulation requiring them to maintain 1000
feet between oversized loads was not intended to prevent front end collisions
with oncoming vehicles, such as the one in this case. They maintain the
spacing requirement was merely intended to protect traffic traveling in
the same lane by allowing more room in which to pass between loads or to
prevent an over-wide load from colliding with a vehicle driving in front
of it. |
| [65] | Again, Appellants ignore Hampton's testimony that one reason for the regulation
is visibility, or to allow other drivers to see the over-wide load while
there is still adequate time to react. It is nonsensical to suggest the
regulation was not in some way intended to provide reaction time to drivers
who find themselves faced with an oncoming vehicle carrying an over-wide
load. We cannot say the regulations were not intended to prevent the collision
at issue. |
| [66] | Appellants continue their argument by maintaining that in any event, violations
of the regulations did not proximately cause Respondent's injuries. "'Proximate
cause is not causation in fact, but is a limitation the law imposes upon
the right to recover for the consequences of the negligent act.'" Robinson
v. State Highway & Trans. Comm'n, 24 S.W.3d 67, 77 (Mo.App. 2000) (quoting
Simonian v. Gevers Heating & Air Conditioning, Inc., 957 S.W.2d 472,
475 (Mo.App. 1997)). |
| [67] | "In determining what constitutes the proximate cause of an injury,
the same principles apply whether the alleged negligence is violation of
statutory duty or violation of a duty imposed under general principles of
law." King, 873 S.W.2d at 278. "'The simplest test for proximate
cause is whether the facts show that the injury would not have occurred
in the absence of the negligent act." Id. (quoting Martin v. City of
Washington, 848 S.W.2d 487, 493 (Mo.banc 1993). We must look at the collision
with hindsight and determine whether Respondent's injuries appear to be
a reasonable and probable consequence of Appellants' violation of the regulations.
Robinson, 24 S.W.3d at 78. |
| [68] | To find proximate cause, it is only necessary that Appellants knew or
should have known that there was an appreciable chance some injury would
result from their actions. Robinson, 24 S.W.2d at 78. Furthermore, Appellants'
negligence need not be the only cause of the injury; it must be one of the
causes without which the injury would not have occurred. Id. |
| [69] | The evidence at trial showed that the collision occurred on a narrow bridge
with no room for an oversized load and a passenger car to pass safely at
the same time. The collision occurred during the hours when there was a
risk of increased traffic on the bridge. Drassen did not leave the prescribed
amount of space between his vehicle and the other load, leaving an oncoming
driver little reaction time between first seeing the oncoming over-wide
load and meeting up with it. Drassen should have known there was an appreciable
chance some injury would result from this set of circumstances. The collision
and the resulting injuries to Respondent were the reasonable and probable
consequence of these actions. There was sufficient evidence to find Appellants'
violations of the regulations were the proximate cause of the collision
and injuries. |
| [70] | Respondent made a submissible negligence case based upon this evidence.
The trial court did not err in failing to grant Appellants' motions for
directed verdict, judgment notwithstanding the verdict, and a new trial.
Point IV is denied. |
| [71] | Appellants' Point V states that the trial court erred in denying their
motions for directed verdict, judgment notwithstanding the verdict, and
for a new trial, and in submitting, as a disjunctive element of Respondent's
negligence claim, that Drassen knew or by the use of the highest degree
of care could have known that there was a reasonable likelihood of collision
with the Vintila vehicle in time to stop before the vehicles met. Appellants
suggest that even when viewing the evidence in the light most favorable
to Respondent, there was no evidence that Drassen had sufficient time in
which to bring his truck to a stop before colliding with the other vehicle. |
| [72] | There must be sufficient evidence to support an issue submitted by an
instruction. Hollis v. Blevins, 927 S.W.2d 558, 564 (Mo.App. 1996). Every
element of a verdict director must be supported by substantial evidence.
Id. "Appellate review of the sufficiency of the evidence to support
the giving of the instruction is made in the light most favorable to its
submission, and if the instruction is supportable by any theory, its submission
is proper." Id. The determination of whether there is sufficient evidence
to submit the issue to the jury is a legal question and not a matter of
judicial discretion. Id. |
| [73] | "A motorist has a duty to stop, swerve, slacken speed or sound a
warning when he or she knows or by the exercise of the highest degree of
care could have known that there is a reasonable likelihood of collision
in sufficient time to take such preventative measures." McHaffie v.
Bunch, 891 S.W.2d 822, 828 (Mo.banc 1995). If reasonable people could disagree
as to when a driver knew or could have known of a reasonable likelihood
of collision, the question of when the duty arises to take evasive action
is for the jury. Id. There is a duty for a driver to keep a careful lookout
for approaching vehicles with sufficient care to appreciate and apprehend
the danger of going on without taking precautionary measures. Id. |
| [74] | The evidence here, viewed in the light most favorable to the submission
of the verdict director, indicates that the instruction was appropriate.
The lead escort driver informed Drassen over the radio that a vehicle was
coming his direction and did not appear to be slowing down. Drassen testified
that he was not yet at the bridge when he saw the Vintila vehicle approaching
with its breaks locked, swerving within its own lane. Drassen was aware
he was driving an oversized load that would occupy a portion of the other
lane on the narrow bridge, but continued on his course. According to Hampton,
Respondent's expert witness, Drassen had 240 feet in which to stop prior
to the collision. Hampton opined that Drassen had sufficient opportunity
to stop whether he was traveling at 30 or 40 miles per hour. |
| [75] | This evidence was sufficient to support a submission of negligence based
upon whether Drassen knew or could have known there was a reasonable likelihood
of collision if he did not take precautionary measures. We find no error
in failing to grant Appellants' motions for a directed verdict, judgment
notwithstanding the verdict, or for a new trial on this basis. Point V is
denied. |
| [76] | In Point VI, Appellants assert the trial court erred in denying their
motions for directed verdict, judgment notwithstanding the verdict, and
for a new trial because the evidence established that Respondent's injuries
were caused by the intervening acts of Theodore Vintila. Appellants argue
that Vintila's act of crossing the center line into the westbound lane of
traffic was the intervening, superceding cause of the collision and Respondent's
subsequent injuries. Again, we review this point to determine if the elements
of Respondent's negligence claim were supported by substantial evidence,
viewing the evidence at trial in the light most favorable to the prevailing
party. Agribank, 919 S.W.2d at 259. |
| [77] | Appellants correctly note that the mere fact that injury follows negligence
does not necessarily create liability and a plaintiff must show the negligence
was the proximate cause of the injury. Robinson, 24 S.W.3d at 77. "Proximate
cause occurs if the cause operates to produce a particular consequence without
the intervention of an independent or superceding cause." Long v. Missouri
Delta Med. Ctr., 33 S.W.3d 629, 637 (Mo.App. 2000). The defendant's negligence
does not need to be the sole cause of the injury, but must be one of the
efficient causes thereof without which the injury would not have occurred.
Id. |
| [78] | "'[S]ome intervening acts are 'superceding causes;' that is, because
they are independent of the original actor's negligence, they are held to
sever the connection between the original actor's conduct and the plaintiff's
injury as a matter of law.'" Esmond v. Bituminous Cas. Corp., 23 S.W.3d
748, 753 (Mo.App. 2000) (quoting Tompkins v. Cervantes, 917 S.W.2d 186,
190-91 (Mo.App.1990)). Conduct which is negligent and "'sets in motion
a series of events leading to an injury can be interrupted by an intervening
cause which so interrupts the chain of events as to become the responsible,
direct, proximate cause of the injury.'" Id. (quoting Van Vacter v.
Hierholzer, 865 S.W.2d 355, 358 (Mo.App. 1993)). The intervening conduct
renders any prior negligence too remote to operate as to the proximate cause.
Id. |
| [79] | Appellants maintain that Theodore Vintila's act of slamming on the brakes
and skidding into the eastbound lane in front of Drassen's oncoming vehicle
was just such an intervening cause. However "[a]n intervening cause
will not preclude liability where it 'is itself a foreseeable and natural
product of the original negligence.'" Id. (quoting Thompkins, 917 S.W.2d
at 191). |
| [80] | Appellants set the chain of events into motion by moving an over-wide
across a narrow, two-lane bridge during the prohibited hours, failing to
maintain the prescribed distance, and failing to attempt to slow down or
stop oncoming traffic. It was both foreseeable and natural that when Vintila
was confronted with an oncoming vehicle that protruded into his lane of
traffic, he would attempt to avoid a collision by applying his brakes. No
one from the convoy attempted to flag him down and warn him about the hazard
prior to him seeing it. Because the oversized loads were traveling with
only approximately 330 feet between them, it was foreseeable that Vintila
would have limited reaction time and might slam on his brakes. |
| [81] | There was sufficient evidence from which to find Appellants' original
negligence was not eliminated by Vintila's actions. The trial court did
not err in denying Appellants' motions for directed verdict, judgment notwithstanding
the verdict, and a new trial. Point VI is denied. |
| [82] | In their seventh point on appeal, Appellants complain that the trial court
erred in submitting the language in the third paragraph of Instruction Number
6 requiring the jury to find for Respondent if Appellants' negligence "directly
caused or contributed to cause" her injuries. *fn3
They maintain this language improperly lessened the burden of proof by allowing
the jury to hold Appellants wholly liable for Respondent's injuries even
if the jurors found they merely contributed to cause the damage. Appellants
further suggest this language was inconsistent with the requirement in Instruction
Number 9, the damage instruction, that the jury award Respondent such sum
as would compensate her for the damages she sustained "as a direct
result of " the collision. |
| [83] | As already noted in this opinion, instructional error only rises to the
level of reversible error where there is a showing of prejudice and the
merits of the action were affected by the erroneous instruction. See Rains,
950 S.W.2d at 588. To make this determination, the reviewing court considers
the entire set of instructions as a whole. Buckallew v. McGoldrick, 908
S.W.2d 704, 709-10 (Mo.App. 1995). |
| [84] | Instruction Number 6 was based upon MAI 17.02, the approved verdict director
for the submission of multiple negligent acts. Where a suit involves multiple
causes of damage, MAI 17.02 refers the parties and court to MAI 19.01. See
MAI 17.02 "Committee Comment" (1996 Revision). MAI 19.01 then
permits a plaintiff, at his or her option, to substitute the paragraph third
of MAI 17.02 with the following: |
| [85] | Third, such negligence directly caused or directly contributed to cause
damage to plaintiff. |
| [86] | According to the Notes on Use, "[T]his modification may be used whether
or not another causing damage is a party." See MAI 19.01 "Notes
on Use" (1999 Revision). |
| [87] | In the instant case, because Appellants alleged that the accident was
caused by Theodore Vintila's negligence, there are allegations of multiple
causes of damage and the modified language in MAI 19.01 was applicable.
Therefore, according to MAI 19.01, Respondent had the option, as plaintiff,
to substitute the approved modification for paragraph third and did so.
Appellants argue this was improper for a number of reasons. |
| [88] | First, Appellants contend the "contributed to cause" language
derived from MAI 19.01 improperly favored Respondent by imposing a lesser
burden of proof than the "direct result" language of MAI 17.02.
Appellants acknowledge that the language in MAI 19.01 has been previously
upheld, but "raise this point in the event the Court decides to reevaluate
the issue of whether the language of MAI 19.01 improperly lowers the plaintiff's
burden of proof." Such challenges have been unsuccessful and we decline
to find otherwise in this case. See, e.g., Menschick v. Mid-America Pipeline
Company, 812 S.W.2d 861, 866 (Mo.App. 1991). |
| [89] | Next, Appellants charge that the language actually used in Instruction
Number 6 did not precisely track the language of MAI 19.01 because it stated
"directly caused or contributed to cause" instead of "directly
caused or directly contributed to cause." Appellants argue the omission
of the second "directly" improperly lowered "the burden of
proof even further, so that the jury could find for [Respondent] if [Appellants
negligence contributed to [Respondent's] injuries in any was whatsoever." |
| [90] | Appellants made a general objection at trial to Instruction Number 6 based
upon the argument, addressed above, that MAI 19.01 improperly lowers a plaintiff's
burden of proof. Appellants did not, however, object to Instruction Number
6 on the grounds that it failed to precisely track the language of MAI 19.01.
Furthermore, Appellants made no mention of the omission to the trial court,
nor did they offer modified instructions "correcting" the alleged
ambiguity. |
| [91] | According to Rule 70.03, counsel must make specific objections to instructions
considered erroneous, distinctly stating the matter objected to and the
grounds of objection, before the jury retires to give its verdict. Failure
to make such an objection to the trial court does not preserve a claim of
error for appellate purposes. Emery v. Wal Mart Stores, Inc., 976 S.W.2d
439, 445 (Mo.banc 1998). Appellants waived this issue by failing to make
a specific objection at trial. |
| [92] | Finally, Appellants claim the trial court erred in submitting Instruction
Number 6 because it was inconsistent with the damage instruction, Instruction
Number 9. Instruction Number 9 provides: |
| [93] | If you find in favor of [Respondent], then you must award [Respondent]
such sum as you believe will fairly and justly compensate [Respondent] or
any damages you believe she sustained and is reasonably certain to sustain
in the future as a direct result of the occurrence mentioned in the evidence. |
| [94] | Appellants maintain the "contributed to cause" language of Instruction
Number 6 is inconsistent with the "direct result" wording of Instruction
Number 9 and mandates reversal. |
| [95] | Again, at trial Appellants made no objection to either instruction on
this basis. Their failure to make a specific objection preserved nothing
for review. See Emery, 976 S.W.2d at 445. Point VII is denied. |
| [96] | In their final point on appeal, Appellants allege the trial court erred
in failing to grant their motion to amend that portion of the judgment awarding
damages. Appellants claim that pursuant to section 537.060, *fn4
they are entitled to a $25,000 setoff due to Respondent's settlement with
the estate of Theodore Vintila. They also maintain that pursuant to section
307.178.4(2), *fn5 they are entitled to
a one per cent reduction in damages based upon the jury's allocation of
fault to Respondent for failing to wear her seatbelt. |
| [97] | Respondent concedes that Appellants' claims under Point VIII have merit
and the judgment should be reduced to $1,460,250. Point VIII is granted. |
| [98] | This cause is remanded and the trial court is directed to amend the award
of damages to $1,460,250. All other portions of the judgment are affirmed. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [99] | *fn1 Statutory references are to RSMo
1996 unless otherwise noted. |
| [100] | *fn2 Unless otherwise noted, rule references
are to Missouri Court Rules 2001. |
| [101] | *fn3 Instruction Number 6 is set forth
in its entirety in the discussion under Point I. |
| [102] | *fn4 Section 537.060 provides that an
agreement by release is given to one of two or more persons liable in tort
for the same injury, such agreement shall reduce the claim against the remaining
tortfeasor by the stipulated amount of the agreement. |
| [103] | *fn5 Section 307.178.2 requires front
seat passengers of passenger cars manufactured after January 1, 1968 to
wear a safety belt. Section 307.178.4(2) allows a trier of fact to reduce
the amount of a plaintiff's recovery by an amount not to exceed 1% of the
damages if the plaintiff's failure to wear a safety belt contributed to
the plaintiff's claimed injuries. |
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