539 S.W.2d 688 | Mo. Ct. App. | 1976
Plaintiff-respondent ran into the rear end of defendant-appellant’s road grader and suffered severe injuries for which she has sought recompense. The first trial of this case resulted in a judgment for $35,000 in favor of plaintiff and against the defendant. The defendant appealed the first judgment to the Supreme Court and was successful in obtaining a reversal and remand for new trial of the case on the basis of an improper submission to the jury. Bounds v. Scott Construction Co., 498 S.W.2d 765 (Mo.1973).
The accident involving plaintiff’s auto and defendant’s road grader occurred on a newly constructed portion of Highway 21, one mile south of Ellington. On the day of the accident, the paving of the highway had been completed, and the defendant construction company under a contract with the State Highway Commission was building and shaping the shoulder by the use of a road grader within the northbound lane
The operator of defendant’s road grader testified that he was in the process of backing up in the northbound lane to make a final pass over the shoulder when he first noticed plaintiff’s auto 740 feet away. Upon seeing plaintiff, the operator looked to see if any southbound traffic was approaching, and seeing that the southbound lane was clear, he waved to plaintiff to pass. The operator estimated plaintiff’s speed at 70-80 miles per hour. Witnesses were called on behalf of defendant to testify that there was a fine array of signs located along the highway warning approaching motorists that road construction was in progress. The contradictions in testimony are for the jury to resolve. Dintelman v. McHalffey, 435 S.W.2d 633 (Mo.1968); Lamb v. Heiligers, 532 S.W.2d 820 (Mo.App.1975).
Plaintiff submitted her case on the theory that defendant negligently operated its road grader in a lane reserved for moving traffic. Plaintiff’s verdict directing instruction which is the subject of defendant’s first assault is as follows:
“Your verdict must be for plaintiff on plaintiff’s claim for damages if you believe:
First, defendant operated its motor grader in a lane reserved for moving traffic, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence the plaintiff sustained damage, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 4.” (emphasis added).
The foregoing instruction modified MAI 17.20 by substituting the word “operated” for the word “stopped” in paragraph First. The defendant contends that the modification is prejudicially erroneous, in that it omits a factual basis upon which the plaintiff can recover and is misleading and confusing. We are constrained to agree with defendant in this regard.
Plaintiff’s verdict director is erroneous, for it fails to hypothesize a negligent act on the part of the defendant. The jury is instructed to hold defendant liable if they find that the road grader was being operated in a lane reserved for moving traffic and that defendant was thereby negligent. Yet, plaintiff concedes that the presence of the road grader in the northbound lane was not negligence per se, as it necessarily had to be in the northbound lane to perform the road shoulder construction work defendant was required to do. Plaintiff submits that it was not the fact that the road grader was in a lane reserved for moving traffic (the northbound lane in this case) that created the negligence, but that it was the presence of the road grader in the northbound lane without giving adequate warning to motorists — the plaintiff, in particular — of the presence of the grader. Also, plaintiff suggests that accumulation of dirt and gravel on the roadway caused by defendant’s oper
Plaintiff contends that the term “operated” encompasses more than the fact that the road grader was located and working in the northbound lane; that a fair reading of the word “operated” includes the condition that there was inadequate warning and an improper accumulation of pea gravel in the northbound lane. We disagree. Without any suggestions as to why defendant’s operation of the road grader was somehow improper the jury was improperly given a roving commission to speculate as to how the act of operating the road grader was negligent. Moore v. Quality Dairy Co., 425 S.W.2d 261 (Mo.App.1968). If, as plaintiff asserts, the defendant’s act of negligence in operating the road grader was by reason of failure to warn or improper maintenance of the road surface, the jury should have been so instructed.
We also find plaintiff’s verdict director to be misleading and obfuscatory, and “[ijnstructions may not be confusing, misleading, inadequate nor prejudicially erroneous. . . . (cite omitted) The language of the instruction should be so plain that no doubt can arise as to its meaning. The spirit of jury instructions is to use ‘simple, direct, concise and unambiguous words and phrases that do not require further definitions.’ ” Woodford v. Illinois Central Gulf R.R. Co., 518 S.W.2d 712, 716 (Mo.App.1974). See also Rule 70.01(e). Plaintiff’s verdict director is manifestly dissonant with the foregoing rubric. The term “operated” as used in the instruction has more than one meaning. It can be construed to refer solely to the fact that the road grader was operating in the northbound lane, that is, the jury could find for plaintiff merely because the defendant’s road grader was performing construction work on the highway. Yet, plaintiff acknowledges that such fact does not form a sufficient basis for a liability, and under such an instruction no act of negligence is hypothesized. The other alternative available to the jury would be to improperly speculate as to what conditions or circumstances made the road grader’s operations somehow negligent. The fact that an accident occurred does not establish negligence. Powell v. Watson, 526 S.W.2d 318 (Mo.App.1975). Neither, as plaintiff admits, did the sole fact of defendant’s operating the road grader on the highway constitute negligence. We must therefore reverse and remand the case for a new trial.
We now dispose of the other points of alleged error raised by the defendant. Since we have held that the plaintiff’s verdict directing instruction was improper we need not reach the defendant’s second point relating to that instruction — that the theory submitted in the instruction was not within the plaintiff’s pleadings.
The defendant also contends that the plaintiff was contributorily negligent as a matter of law because she failed to keep a lookout, drove at an excessive speed and failed to take evasive action. This exact contention was raised in the first appeal of this case to the Missouri Supreme Court. Based on the same material facts as present in the record before us, the Supreme Court
An additional point raised by the defendant on this appeal concerns the trial court’s refusal to submit to the jury a proposed instruction offered by the defendant that would have provided the defendant with the protection of governmental immunity if the jury were to find that the defendant performed the construction work on the shoulder in compliance with the Missouri State Highway Commission’s plans and specifications. This point was specifically dealt with and denied by the Supreme Court in the defendant’s first appeal, Bounds v. Scott Construction Co., supra at 768, and we are bound by that ruling. See also Best v. Fred Weber Construction Co., 525 S.W.2d 102 (Mo.App.1975), holding that a road contractor may not hide behind a contract with a public authority to escape liability for tortious conduct.
The defendant asserts that the trial court erred in failing to grant the defendant’s motion for a directed verdict.
“In reviewing the action of a trial court in ruling on defendant’s motion for a directed verdict . . the reviewing court must determine whether plaintiff made a submissible case, and in so doing, the plaintiff is entitled to the most favorable view of all the evidence and must be given the benefit of all favorable inferences to be drawn therefrom.” Boyle v. Colonial Life Ins. Co., 525 S.W.2d 811, 815 (Mo.App.1975).
Viewing the evidence as commanded by the foregoing maxim, we conclude that a sub-missible case was made. From the evidence and the reasonable inferences drawn therefrom, the jury could have found that the defendant failed to adequately warn a northbound motorist that a road grader was working in that lane. Testimony of the plaintiff and her witnesses was to the effect that no flagmen were present and that whatever warning signs were present were not sufficient to alert a motorist to the fact that the northbound lane would be blocked. Furthermore, the jury could have found that there was between one quarter and four inches of dirt and pea gravel left on the road by the defendant immediately south of the scene of the accident. Such facts could be sufficient to demonstrate the defendant’s negligence, and the trial court properly denied the defendant’s motion for a directed verdict. See Morris v. Israel Brothers, Inc., 510 S.W.2d 437 (Mo.1974); Best v. Fred Weber Construction Co., supra.
The defendant asserts that since plaintiff’s petition did not specifically allege particular injuries the trial court erred in overruling motions to strike evidence relating to alleged brain damage, double and blurry vision, headaches and a shortening of a leg. The relevant portion of plaintiff’s petition states:
. . as a direct and proximate result of the carelessness and negligence of the defendant as aforesaid, the plaintiff sustained the following injuries, to wit: Plaintiff’s head, . . . body, legs, ankles . . were bruised, contused, wrenched, torn, misplaced, cut, lacerated, broken, wounded, sprained, diseased, scarred and disfigured, and the bones, muscles, ligaments, tendons and nerves in plaintiff’s head, . . legs, ankles were severely shocked, misplaced, torn loose, bruised, mangled, diseased, scarred and disfigured and rendered useless. Plaintiff states that she suffered a concussion of the brain and the function of this plaintiff’s entire nervous system was shocked and her head, . . . limbs . . . and the . nerves, tendons and ligaments thereof were bruised, contused and impaired . . .
The trial court correctly overruled defendant’s objection to plaintiff’s evidence of impaired vision and hearing, headaches and shortened leg and found that such injuries were a consequence of the accident as pleaded. Although Rule 55.19 requires items of special damage to be specifically
Finally, defendant asserts that the trial court erred in allowing plaintiff’s counsel to comment in closing argument on the failure of a State trooper called as a defense witness to testify regarding the existence of warning signs, as the trooper was equally available to plaintiff. Since this point is not likely to reoccur on the retrial of the case we need make no finding as to whether such comment was error vel non.
Due to the prejudicial error of submitting plaintiff’s verdict directing instruction we reverse the judgment and remand for new trial.
. Plaintiff has married since the first trial, hence the change in the style of the case.
. The testimony of the parties was in sharp conflict as to the amount of dirt and gravel on the road. The plaintiff presented evidence that there was between one quarter inch and four inches of dirt and gravel on the northbound lane to the point of impact. A State trooper testified that there was dirt and gravel one quarter inch thick, and defendant’s construction superintendent testified that there was only a little dust and gravel on the road. We leave it to the jury to resolve such conflicts.