Morrow v. Greyhound Lines, Inc., s. 75-1758

Citation541 F.2d 713
Decision Date01 September 1976
Docket Number75-1703,Nos. 75-1758,s. 75-1758
PartiesSusan E. MORROW, an incompetent, et al., Appellees, v. GREYHOUND LINES, INC., a corporation, Appellant. Susan E. MORROW, an incompetent, et al., Appellees, v. Douglas H. HUBER, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Martin E. Juncker, Clayton, Mo., for Huber.

George J. Miller, Miller & Sarkisian, St. Louis, Mo., for Greyhound; Thomas B. Hayes, Jr., St. Louis, Mo., on the brief.

John C. Shepherd, argued, John S. Sandberg and John R. McFarland, St. Louis, Mo., for appellees.

Before VOGEL, Senior Circuit Judge, and HEANEY and HENLEY, Circuit Judges.

VOGEL, Senior Circuit Judge.

Appellants Greyhound and Huber appeal from a final judgment against all defendants in the amount of $1,813,000 for damages arising out of a multi-vehicle collision which occurred March 23, 1974, in Montgomery County, Missouri. Appellant Greyhound asserts the district court erred by:

I. Denying appellant's motion for directed verdict, which claimed no act of Greyhound was a proximate cause of appellee's injures;

II. Failing to grant appellant's motion for new trial based on excessive jury award;

III. Admitting expert testimony on the rate of future inflation; and

IV. Instructing the jury improperly.

Appellant Huber also asserts a lack of proximate causation of appellee's injuries and challenges the court's instruction as to excessive speed.

Appellee's claim arose out of a multi-vehicle collision in the westbound traffic lanes of Interstate 70 at about 9:30 A.M., March 23, 1974. Suit was filed by appellees Eugene M. and Delores J. Morrow, actual parents and legal guardian for the person and estate of Susan Morrow, an incompetent.

I-70 is a four-lane divided limited access highway. On the morning of March 23, 1974, snowfall was heavy, resulting in slippery road conditions and a visibility of about 660 feet. At about 9:00 A.M., at a location along I-70 known as Mineola Hill a vehicle driven by a Mrs. Shelburne slid off the westbound lanes and came to a stop against the embankment on the north side of the road. The Missouri State Highway Patrol was summoned and Officer Gary E. Lutes arrived shortly thereafter, parking his vehicle on the north paved shoulder of the highway. Neither the Shelburne nor the Highway Patrol vehicle was in the lanes of traffic. About 20 minutes thereafter another westbound vehicle went off the road on Mineola Hill and came to rest in the median. A few minutes later a wrecker arrived and parked in the median and partially on the median shoulder. Officer Lutes went over to the wrecker in the median and saw two tractor-trailers approaching in the westbound lanes side by side. The passing lane was occupied by the tractor-trailer of defendant Johnson Trucking Company (not a party to this appeal), a United States mail contract carrier. The Johnson driver saw Officer Lutes on the left shoulder, and, believing that Officer Lutes wanted him to stop, applied his brakes, finally bringing his vehicle to a halt just east of the wrecker and sitting in the passing lane. Before Officer Lutes could get the Johnson truck moved, defendant-appellant Douglas Huber approached, observed the Johnson vehicle, and began to brake. Huber finally skidded to a rest at a 90-degree angle in the right lane of traffic just east of the Johnson vehicle, thus now blocking both lanes of traffic. Appellant's Greyhound bus then approached in the right lane. Orville James, the Greyhound driver, observed from about 300 to 375 feet away that both the passing and right lanes were blocked and began to brake. James maneuvered towards the right shoulder, but struck the Huber vehicle in the area of its right front wheel. The impact pushed the Huber vehicle off the road and into the median, while the bus came to rest at an angle about 30 degrees with the road, in approximately the same location previously occupied by the Huber vehicle. Within a matter of seconds thereafter a vehicle driven by defendant John Webb (not a party to this appeal), in which appellee Susan Morrow was a passenger, approached in the right lane, braked, and then collided with the bus. As a result of this collision Susan Morrow suffered extensive and tragic injuries, including brain damage, spasticity, and paralysis in several areas of her body.

On November 26, 1974, Susan was adjudged incompetent by a North Carolina court, appointing her father, Eugene M. Morrow, trustee of her estate, and her mother, Delores J. Morrow, as personal custodian.

Appellees brought this action for negligence against Johnson, Huber, Greyhound and Webb. Only defendants Greyhound and Huber pursue this appeal.

At trial, appellees' expert medical testimony indicated that the brain damage caused by the collision resulted in extreme mental impairment, with Susan registering a post-accident IQ of 72, placing her in the "borderline defective" level of intelligence. Her "effectiveness" is estimated to be that of a ten-year-old and she requires constant care and supervision. Partial paralysis of the left side remains and spasticity continues to be severe. Speech is limited and monotoned. Susan experiences balance problems and as a result has difficulty sitting up. Susan's doctors testified at trial that her injuries are of a type which are generally fixed and thus she has already approached her maximum level of improvement. Physical, occupational and speech therapy is planned on a permanent basis, however, to prevent any regression in her condition. While Susan is able to live at home now, nursing care is nonetheless required the majority of each day, and in the future it may be necessary to transfer Susan to a nursing care facility.

Testimony for appellees showed damages which totaled $1,813,965.09. Appellees' prayer for $1,750,000 was subsequently amended to $1,813,000. The jury returned a verdict in favor of appellees and awarded damages of $1,813,000.

I. PROXIMATE CAUSE

Appellant Greyhound's first argument is that the district court erred in overruling Greyhound's motions for a directed verdict because there was no evidence that any negligent act of Greyhound was a proximate cause of appellee's injuries. The district court submitted the issue to the jury under the following instruction:

In order for Plaintiff to recover against Defendant Greyhound Lines, Inc., you must believe that Greyhound was negligent and that such negligence directly caused or directly contributed to cause damage to the Plaintiff.

Therefore, Plaintiff is entitled to a verdict against Defendant Greyhound Lines, Inc. if Greyhound was negligent in one or more of the following respects:

(a) Driving at an excessive speed; or

(b) Defendant 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, swerved, or slackened its speed and swerved but Defendant failed to do so

and as a result of such negligence Greyhound either directly caused or directly contributed to cause damage to the Plaintiff.

First, Greyhound argues that the evidence establishes that a collision would inevitably have occurred either between Greyhound's bus and the Webb vehicle, or between the Huber vehicle and the Webb vehicle, and that appellee would have sustained her injuries anyway, with or without Greyhound's negligence. Second, Greyhound argues that Webb's negligent inattentiveness in failing to avoid collision with the Greyhound bus was an intervening cause of appellee's injuries, thus effectively negating any causal link to appellee's injuries of any Greyhound negligence.

It is well settled under Missouri law that the causal connection between negligence and harm may be established by circumstantial evidence from which the connection may reasonably be inferred. Phillips v. Stockman, 351 S.W.2d 464, 473 (Mo.App.1961); Steele v. Woods, 327 S.W.2d 187, 195 (Mo.1959); Fireman's Fund Ins. Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179, 184 (8th Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35, L.Ed.2d 592 (1973). To establish proximate cause, it is sufficient if there is substantial evidence which shows that the injury is a natural and probable consequence of the negligent act or omission. Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820, 824 (1956); Steele v. Woods,supra, at 195. It is enough that appellant's negligence was a "substantial factor" in producing appellee's injuries, Ricketts v. Kansas City Stockyards Co., 484 S.W.2d 216, 221-22 (Mo. en banc 1972), and appellant Greyhound's negligence need not be the sole proximate cause. Cluck v. Snodgrass, 381 S.W.2d 544, 548 (Mo.App.1964); Gaines v. Property Servicing Co., 276 S.W.2d 169, 173-74 (Mo.1955). 1

The question thus presented is whether the evidence, viewed in a light most favorable to appellees, was sufficient for the jury to reasonably conclude that appellant Greyhound, by either (a) traveling at an excessive speed or (b) negligently failing to stop or swerve to avoid collision with Huber, was a substantial factor in causing appellee's injuries.

Greyhound does not challenge the sufficiency of evidence of excessive speed or whether as a result of that excessive speed Greyhound collided with appellant Huber, but rather whether its collision with Huber substantially caused the collision with the Webb vehicle in which appellee received her injuries. We find sufficient evidence from which the jury could infer that it did.

First, the evidence most favorable to appellee indicated that appellant Huber's vehicle blocked primarily the right lane of the highway, leaving room to pass on the right 10-foot paved shoulder and 8-foot unpaved shoulder. When the bus came to rest, however, it blocked the right lane, and, in addition, the paved and unpaved shoulders of the north side of the road. It was a factual question for the...

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