603 S.W.2d 674 | Mo. Ct. App. | 1980
Defendants appeal from a judgment entered as a result of a jury verdict in a personal injury case. Plaintiff Sterling Martin was awarded $20,000 for personal injuries and $1,260 for property damage (after a remittitur of $2990 on the property damage) and plaintiff Hattie Martin was awarded $5000 for loss of consortium.
The accident was a “rear-ender” in which Sterling Martin’s vehicle was struck in the rear by the truck owned by defendant Oliver and operated by his servant, Howd. Plaintiff’s evidence was that he stopped for a flagman at a highway construction site and was struck 15 to 30 seconds later by the truck. The defendants’ evidence was that Martin stopped suddenly, unnecessarily and without warning.
Defendants’ first three points relate to instructions. The first is that the court erred by utilizing a modified MAI 17.16
Defendants’ next point is that the trial court erred in modifying the damage instruction given on behalf of Hattie Martin on her consortium claim. The instruction utilized was MAI 4.01 which was modified to read “as a direct result of the injuries to E. Sterling Martin” instead of “as a direct result of the occurrence . . .”
Defendants’ remaining contention on instructions is that MAI 17.16 improperly submits the “rear end doctrine” because it fails to require a finding that “respondent’s movement and/or position prior to the collision was such as to give rise to appellants’ liability for striking respondents’ vehicle in the rear.” This issue was squarely addressed and resolved by the Supreme Court in Mueller v. Storbakken, 583 S.W.2d 179 (Mo. banc 1979). The court held that these questions are to be considered by the trial court in determining whether the “rear end doctrine” should be submitted to the jury as a matter of law, but that they are not properly included in the instructions to the jury. The court then upheld the validity of 17.16 as the proper verdict directing instruction in a rear-end collision case. We find no error.
Defendants’ remaining contention is that the trial court erred in allowing the “insurance question” because the insurance company was proceeding under a reservation of rights pending judicial determination of its liability under the policy. The matter, while raised prior to the voir dire examination of the jury, was not raised in the motion for new trial and has not been preserved for review. We do not find “plain error.”
Judgment affirmed.
. “MAI 17.16 Verdict Directing-Rear End Collision [1973 Revision]
Your verdict must be for plaintiff if you believe:
First, defendant’s automobile came into collision with the rear of plaintiffs automobile, and
Second, defendant was thereby negligent, and
Third, as a direct result of such collision, plaintiff sustained damage.”