Robinson v. Empiregas Inc. of Hartville, 19654

• Decision Date: 02 August 1995
• Docket Number: No. 19654,19654
• Parties: David L. ROBINSON, Respondent, v. EMPIREGAS INC. OF HARTVILLE, Appellant.
• Court: Missouri Court of Appeals

Page 829

906 S.W.2d 829

David L. ROBINSON, Respondent, v. EMPIREGAS INC. OF HARTVILLE, Appellant.

No. 19654.

Missouri Court of Appeals,

Southern District,

En Banc.

Aug. 2, 1995.

Motion for Rehearing or Transfer to

Supreme Court Denied Aug. 23, 1995.

Application to Transfer Denied

Oct. 24, 1995.

Steven G. Emerson, Thomas H. Davis, Watson & Marshall L.C., Kansas City, and Jack L. Miller, Lebanon, for appellant.

Steve Garner, Strong & Associates, P.C., Springfield, for respondent.

CROW, Judge.

On November 3, 1983, Plaintiff, David L. Robinson, was driving an automobile west on Route H in Wright County, approaching the intersection of Route TT. Robert M. Copus, an employee of Defendant, Empiregas Inc. of Hartville, was driving a two-ton truck south on Route TT, approaching the same intersection. Copus turned east onto Route H; the vehicles collided. Plaintiff was injured.

Plaintiff sought damages from Defendant, claiming Copus's negligence caused the collision. ¹ A jury assessed 100 percent of the fault against Defendant and found Plaintiff's damages to be $1,007,000. The trial court entered judgment per the verdict. ²

Defendant appeals, presenting five assignments of error. We begin with the third, which reads:

"The trial court erred in overruling Defendant's motion for new trial because the jury's allocation of 100% of the fault to Defendant was against the weight of the evidence and contrary to the physical facts in that Plaintiff, had he kept a careful lookout, could not have failed to avoid the accident."

Defendant's proclamation that the verdict allocating 100 percent of the fault to it was "against the weight of the evidence" is answered by Housing Authority of the City of Rolla v. Kimmel, 771 S.W.2d 932, 940 (Mo.App.S.D.1989):

"Whether a verdict is against the weight of the evidence is a question for the trial court alone, Wilcox v. Coons, 362 Mo. 381, 241 S.W.2d 907, 917 (1951), and a claim on appeal that the verdict is against the weight of the evidence presents nothing for review because the appellate court does not weigh the evidence in a case tried before a jury. Walters v. Maloney, 758 S.W.2d 489, 497 (Mo.App.1988), and authorities there cited."

Furthermore, a contention that a verdict is against the weight of the evidence implies there is some evidence to support the verdict. Robbins v. Robbins, 328 S.W.2d 552, 556 (Mo.1959). That is inconsistent with the second contention in the third point--that the allocation of 100 percent of the fault to Defendant was "contrary to the physical facts." As we understand the second contention, Defendant maintains there was no evidence to support the jury's allocation of fault. In the argument following the second contention, Defendant asserts that testimony contradicted by "undisputed physical facts" is not substantial evidence.

Despite the inconsistency between the second contention and the first contention, we shall address the second insofar as we are able to divine its import from the argument following it.

The statement of facts in Defendant's brief sets forth a version of the evidence favorable to Defendant. The statement of facts in Plaintiff's brief sets forth a version favorable to Plaintiff. ³ In narrating enough evidence to address the second contention in Defendant's third point, we are mindful that in determining whether there was sufficient evidence to support the judgment, we must consider the evidence in the light most favorable to the party who prevailed on the verdict. Seward v. Terminal Railroad Assn. of St. Louis, 854 S.W.2d 426, 427-28 (Mo. banc 1993). That party is Plaintiff.

Viewed favorably to Plaintiff, the evidence establishes that Trooper James Michael Stewart of the Missouri State Highway Patrol arrived at the collision site at 11:29 a.m., some 45 minutes after the collision. The surface of Routes H and TT is asphalt; Route H is 19 feet wide. Stewart saw no skid marks.

On his report, Stewart diagrammed the position of the vehicles at the time he arrived. The diagram shows Defendant's truck (which Stewart understood was approximately 25 feet long) headed southeast. A small portion of the right front corner of the truck extends south of the south edge of Route H; the left rear corner of the truck is six feet south of the north edge of Route H. The diagram shows Plaintiff's automobile (which Stewart understood was approximately 18 feet long and six and a half feet wide) headed southwest. The right rear corner of the automobile is four feet south of the north edge of Route H; the left front of the automobile extends across the center of Route H into the eastbound lane. Stewart found a gouge mark in the asphalt some three and a half feet south of the center of Route H, beneath the left front corner of the automobile. Stewart concluded the gouge mark was the point of impact.

Endeavoring to record how far the vehicles were from the intersection, Stewart "drew an imaginary line" projecting the east edge of Route TT south across Route H. From this line, he measured east to the right rear of the truck, recording the distance as 51 feet. He recorded the distance from the imaginary line to the right rear of the automobile as 78 feet. However, he testified at trial that he believed this was wrong, and that the 78 foot measurement was from the imaginary line to the front of the automobile. Then, this:

"Q Would that also be to the point of impact?

A It would be, yes, pretty close to the approximate point of impact."

Stewart recounted that the damage to the automobile was "primarily front and secondary left front"; the damage to the truck was "left front and left side but primarily left side." Photographs received in evidence confirm that testimony.

There is a stop sign for southbound vehicles on Route TT. As best we can determine from a "survey" received in evidence, the sign is approximately 55 feet north of the north edge of Route H projected across the intersection.

Stewart testified, "[I]f you stopped at the stop sign and looked and pulled out, you would really be taking a chance, in my opinion, so you're going to have to pull on up and look again...." As we fathom his testimony, Stewart meant that because of visual obstructions, a southbound vehicle on Route TT, after stopping at the sign, should stop again at the projected north edge of Route H and look east before turning onto Route H. Stewart explained there is a hillcrest on Route H some 600 feet east of the intersection, and that a westbound driver on Route H can see the intersection from the crest.

Plaintiff testified he was in his lane when he crested the hill. He saw the truck "back a ways" from the intersection. Plaintiff continued, "[The truck] was slowing down and I had the impression that he had seen me and he was going to come to a stop and let me go on by." However, said Plaintiff, when he (Plaintiff) was "close to the intersection," he realized the truck was not going to stop. Consequently, avowed Plaintiff:

"I slammed on my brakes and since he was coming from TT coming from my right, I turned my steering wheel to the left in an attempt to try to get in front of him or avoid it but when I slammed on my brakes I went into a skid and pretty much went straight but I slid over into the center part of the road.... I was neither on my side nor his side, I was dead center in the middle of the road at the time of the impact."

Defendant insists Plaintiff's account "is mathematically and physically impossible." Defendant cites the following passage from Black v. Kansas City Southern Railway Co., 436 S.W.2d 19, 29 (Mo. banc 1968):

"[W]here physical facts speak with a force which overcomes testimony to the contrary, reasonable minds must accept and follow the physical facts and therefore cannot differ. It has long been the rule in this jurisdiction that where testimony is, beyond any reasonable doubt, contrary to established physical facts or laws and facts of common knowledge, it cannot be accepted as substantial evidence. And if the testimony of a witness upon a material issue is inherently impossible, or is so opposed to all reasonable probability as to be manifestly false, the courts are not bound to accept it and will wholly disregard it."

As we comprehend Defendant's argument, its hypothesis is:

(1) the point of impact was 78 feet east of the projected east edge of Route TT;

(2) Copus was driving the truck in second gear, which had a maximum speed of approximately eight miles per hour (not quite 12 feet per second ⁴) (3) at eight miles per hour, it would have taken the truck 6.5 seconds to travel from the point where it entered Route H to the point of impact;

(4) Plaintiff was driving 50 miles per hour as he crested the hill ⁵;

(5) during the 6.5 seconds it took the truck to reach the point of impact, Plaintiff had to travel at least 480 feet because, at 50 miles per hour, a vehicle travels approximately 74 feet per second.

Consequently, reasons Defendant, because there was an unobstructed view of the intersection from a point 600 feet east of it, Plaintiff "must have seen the truck enter the roadway when he was still at least 480 feet from the intersection." Therefore, says Defendant, Plaintiff "unquestionably had time to slow or simply remain in his own lane of traffic in order to avoid the accident."

To buttress that conclusion, Defendant directs us to a segment of Plaintiff's testimony during cross-examination which can be construed as an admission that he began braking a second and a half to two seconds before impact, when he was 150 to 200 feet east of the point of impact. Defendant characterizes that testimony as "a tacit admission by the plaintiff that he failed to react for over 4 seconds after seeing the Empire truck 'roll through' the stop sign."

Defendant presented the above argument to the jury, which obviously found it unconvincing. The jury may have rejected the argument because of testimony by Copus regarding the position of the...