969 S.W.2d 825 | Mo. Ct. App. | 1998
Defendant United Express appeals from that part of the judgment granting plaintiff Leslie Lewis’s
On May 17, 1994 defendant Ray Wright was driving a tractor trailer east on Highway 40 in St. Louis County. At the same time, plaintiff and two passengers were also traveling east on Highway 40 in a pick-up truck, with another pick-up truck in tow. Wright’s tractor trailer and plaintiffs pick-up truck collided.
Plaintiff filed a negligence action against Wright and United Express seeking damages for personal injury.
For its sole point on appeal, United Express contends that the trial court’s judgment granting a new trial was erroneous because any error in the comparative fault instruction was moot as a result of the jury’s verdict in United Express’s favor. We agree.
The verdict directing instruction, No. 10, read:
In your verdict you must assess a percentage of fault to defendant United Express, Inc. whether or not plaintiff Leslie Lewis was partly at fault, if you believe:
First, driver Ray Wright was operating the motor vehicle within the scope and course of his agency with United Express, Inc. at the time of the collision, and Second, Ray Wright’s automobile came into collision with the rear of the automobile being towed, and
Third, Ray Wright was thereby negligent, and
Fourth, such negligence directly caused or directly contributed to cause damage to plaintiff Leslie Lewis.
Under this instruction the jury found that United Express was not responsible for any fault attributed to Wright.
The case is remanded with directions to set aside the order granting a new trial on plaintiff’s claim against United Express and to reinstate the verdict on that claim.
. Leslie Lewis is the only plaintiff in this appeal and is referred to herein as "plaintiff.”
. Three other persons, Henry Green, Charles Johnson, and Shirley King, also filed actions against Ray Wright and United Express for claims arising out of the May, 1994 automobile accident. The trial court consolidated the cases for trial. These persons are not parties to this appeal.
.Wright filed a counterclaim against plaintiff for damages to his tractor trailer and wages lost while the truck was being repaired. The jury returned a verdict in Wright’s favor on the counterclaim. The trial court granted plaintiff s motion for new trial on the counterclaim. Wright’s claim of error with respect to this order has not been briefed on appeal and is therefore abandoned.