Buck v. Union Elec. Co., 63612

• Decision Date: 18 October 1994
• Docket Number: No. 63612,63612
• Citation: 887 S.W.2d 430
• Parties: Melvin Dean BUCK, Plaintiff/Appellant, v. UNION ELECTRIC CO., Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 430

887 S.W.2d 430

Melvin Dean BUCK, Plaintiff/Appellant, v. UNION ELECTRIC CO., Defendant/Respondent.

No. 63612.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 18, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 21, 1994.

Michael A. Gross, St. Louis, for appellant.

James F. Waltz, Oliver, Oliver & Waltz, P.C., Cape Girardeau, for respondent.

PUDLOWSKI, Judge.

Melvin Dean Buck appeals from a judgment non obstante veredicto. In a negligence action, Buck sued Union Electric for injuries sustained in a car crash with an oncoming vehicle which had entered his lane due to the partial obstruction of the roadway by Missouri Utilities ¹ and remained there until the collision. At trial, the jury rendered a verdict in favor of Buck. The trial court entered its judgment non obstante veredicto finding that Missouri Utilities' actions were not the proximate cause of Buck's injuries. We affirm.

On the morning of Friday, March 12, 1982, Missouri Utilities Company had a crew, comprised of Kelly Stroder and Curtis Coffey, working on Three Mile Road in Stoddard County. Three Mile Road is a two-lane open highway which runs north/south. It is approximately nineteen feet wide with no center dividing line and a very narrow shoulder. The particular stretch of Three Mile Road on which they were working was level for at least a quarter-mile to the north of the job site. To the south, the road went uphill and crested approximately two hundred and fifty to three hundred feet away.

On this particular morning, Stroder and Coffey were to clean up a previous job site and pack with blacktop a trench which the company had dug across the road two weeks earlier. In order to do so, the men would be using a backhoe on the east and west sides of the shoulder, at times partially blocking the northbound and southbound traffic lanes. Stroder and Coffey arrived at the site at approximately 8:30 a.m. In addition to other tools, they were equipped with the backhoe, a flag, and two square "MEN WORKING" signs which are yellow with black letters and stand approximately three feet high. Prior to beginning their work, Stroder and Coffey, in order to warn traffic that they were working in the road, placed one of the "MEN WORKING" signs fifty feet to the north of the backhoe and the other at the crest of the hill, south of the backhoe.

Around 11:30 a.m., the two men believed that they had completed their work. Therefore, they removed the "MEN WORKING" signs from either side of the backhoe. After taking down the signs, Coffey decided to straighten up the work site by cleaning up some extra blacktop which they had left on the ground. In addition, he wanted to retamp one final time the new asphalt on the shoulder of the southbound lane by running it over with the wheel of the backhoe. After finishing the work, Stroder and Coffey planned to turn the backhoe around in the northbound lane and return to their crew headquarters. Stroder decided he should flag oncoming northbound traffic at the crest of the hill and, therefore, began walking to the crest of the hill.

That morning, JoAnn Richards left work at 11:30 a.m. with her friend Lavonia Ann Green for their lunch break. Richards had lived off Three Mile Road for two years and had traveled it on a number of occasions. She was driving her 1979 Buick Regal southbound on Three Mile Road as she approached the backhoe which was partially on the shoulder and partially in the southbound lane of traffic. She had an unobstructed view of the backhoe. As she passed the backhoe in the northbound lane, Richards maintained her speed of approximately thirty miles an hour. After passing the backhoe, Richards continued to travel up the hill in the northbound lane of traffic. As she approached the crest of the hill, Richards remained in the northbound lane. Richards, at no point prior to the accident, considered getting back into her own lane of traffic. Richards never saw Coffey in the southbound lane of traffic as he walked to the crest of the hill.

At the same moment, Melvin Dean Buck, a resident of Dexter, Missouri, was approaching the crest of the hill from the opposite direction. He was driving his 1981 Mazda GLC station wagon northbound in his own lane of traffic. The vehicle was traveling at approximately forty to forty-five miles per hour. He had his son, Dennis, and daughter, Gina with him. They were on their way to drop the son off at his girlfriend's house. Immediately after Buck crested the hill, Richards collided with Buck. At the time of the accident, Richards was still completely in the northbound traffic lane.

Buck was injured and was hospitalized for approximately two weeks following the accident. He later required additional surgery on the injured shoulder.

The case was tried and a jury returned a verdict in favor of Buck. Subsequently, the trial court entered a judgment non obstante veredicto holding that "the evidence does not support a finding that defendant's conduct, either in location of its backhoe or its failure to warn other vehicles was the proximate cause of the collision between plaintiff's vehicle and the vehicle operated by JoAnn Richards." Buck appeals that judgment.

The standard of review for a judgment non obstante veredicto is whether viewing the evidence in a light most favorable to Buck reasonable minds could differ as to Missouri Utilities' negligence. Gregory v. Robinson, 338 S.W.2d 88, 91 (Mo. banc 1960); Smith v. R.B. Jones of St. Louis, Inc., 672 S.W.2d 185, 186 (Mo.App.E.D.1984); Goodenough v. Deaconess Hospital, 637 S.W.2d 123, 125 (Mo.App.E.D.1982); Fordyce v. Montgomery, 424 S.W.2d 746, 750 (Mo.App.1968). Buck is entitled to the evidence and inferences favorable to the jury verdict and the evidence of Missouri Utilities must be disregarded except in so far as it supports the verdict. Bayne v. Jenkins, 593 S.W.2d 519, 521 (Mo.1980); Gregory v. Robinson, 338 S.W.2d at 91; Cathey v. DeWeese, 289 S.W.2d 51, 52 (Mo.1956).

It is apparent from the facts of this case that Richards would never have entered the northbound lane if Missouri Utilities had not been operating the backhoe, thereby obstructing part or all of the southbound lane. It is also apparent that Stroder was going to the crest of the hill in order to flag the northbound traffic. Assuming the aforementioned facts are true, ² we find that its actions were not the proximate cause of the accident.

It is axiomatic that the mere fact that injury follows negligence does not necessarily create liability. Plaintiff must also prove the negligent conduct amounted to a violation of some duty owed to him and that the conduct was an efficient and proximate cause of his injury. Metzger v. Schermesser, 687 S.W.2d 671, 672 (Mo.App.E.D.1985).

In discussing "proximate cause" or "legal cause", it has been said "[t]here is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion." Metzger, 687 S.W.2d at 674 (quoting Prosser and Keeton on Torts § 41 (5th ed. 1984)). Determination of substantiality and proximity of the causal relationship between negligence and injury is dependent upon the particular facts of each case and it is seldom that one decision controls another. Georgescu v. K Mart, 813 S.W.2d 298, 301 (Mo. banc 1991); Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 710 (Mo. banc 1990); Metzger, 687 S.W.2d at 673; Price v. Seidler, 408 S.W.2d 815, 820 (Mo.1966); Strake v. R.J. Reynolds Tobacco Co., 539 S.W.2d 715, 718 (Mo.App.1976). Therefore, we will scrutinize the facts of this case applying the relevant principles of law.

Missouri courts have adopted the Restatement (Second) of Torts, § 431 which states that "[t]o be a legal cause of harm to another one's conduct must be a substantial factor in bringing about the harm." Metzger, 687 S.W.2d at 672-73 (citing Ricketts v. Kansas City Stock Yards Company of Maine 484 S.W.2d 216, 221-22 (Mo. banc 1972)). The test is whether, after the accident, the injury appears to be the natural and probable consequence, unbroken by any new cause, of the act or omission of the defendant, without which the accident would not have occurred. Krause, 787 S.W.2d at 710; Schaffer v. Bess, 822 S.W.2d 871, 877 (Mo.App.1991); Metzger, 687 S.W.2d at 674; Strake, 539 S.W.2d at 718; King v. Ellis, 359 S.W.2d 685, 688 (Mo.1962).

If two or more persons are guilty of consecutive acts of negligence closely related in time, there is a question as to whether one initial act of negligence was a proximate cause of the injury or whether there was an efficient intervening cause. Krause, 787 S.W.2d at 710; Schaffer, 822 S.W.2d at 877. Applied to the case at bar, the issue is whether the negligence of Richards was an efficient, intervening cause which rendered the conduct of Missouri Utilities remote and no longer the "proximate cause" of the accident.

An efficient, intervening cause is a new and independent force which so interrupts the chain of events that it becomes the responsible, direct, proximate and immediate cause of the injury, but it may not consist of merely an act of concurring or contributing negligence. Schaffer, 822 S.W.2d at 877; Metzger, 687 S.W.2d at 674. See also Strake, 539 S.W.2d at 718. Thus, Richards' negligence cannot be merely contributory but must be the sole efficient "proximate cause" of Buck's injuries. The issue is whether or not the intervening act by Richards so supersedes the earlier conduct of Missouri Utilities as to excuse its responsibility thereof. Metzger, 687 S.W.2d at 674 (citing Restatement (Second) of Torts, §§ 440-453). Richards' actions clearly caused the accident. After passing the backhoe which was operating in the southbound lane without slowing down, Richards remained in the northbound lane as she approached the crest of the hill. At the time of the accident, the Richards' vehicle was further in the northbound lane, the...