Burke v. Moyer, WD31956

• Decision Date: 04 August 1981
• Docket Number: No. WD31956,WD31956
• Citation: 621 S.W.2d 75
• Parties: Leona Mae BURKE, Appellant, v. Joy K. MOYER, Respondent.
• Court: Missouri Court of Appeals

Page 75

621 S.W.2d 75

Leona Mae BURKE, Appellant, v. Joy K. MOYER, Respondent.

No. WD31956.

Missouri Court of Appeals, Western District.

Aug. 4, 1981.

Paul R. Mudd, Independence, for appellant.

William L. Turner, Myron S. Silverman, Kansas City, for respondent.

Before PRITCHARD, P. J., and TURNAGE and CLARK, JJ.

CLARK, Judge.

An intersectional automobile collision resulted in this suit for damages by appellant Burke, the operator of one vehicle, against respondent Moyer, the other driver. After a jury verdict for Burke, the trial court, on the after-trial motion of Moyer, entered judgment for Moyer notwithstanding the verdict and, in the alternative, ordered a new trial should the judgment for Moyer be overturned. Burke appeals seeking reinstatement of the original result.

The accident occurred at midday on April 7, 1976, at the intersection of U.S. Highway 24 and North Cottage Street in Independence near the site of the Truman Library. Highway 24, a non-divided, four-lane, through route, running east and west to the south of the library, affords access to this memorial by four ramps and an underpass which permit both westbound and eastbound vehicles to exit from and re-enter upon the highway without crossing opposing traffic lanes. North Cottage intersects the highway immediately to the west of the ramps by which westbound motorists re-enter the highway and eastbound motorists exit. Cottage, however, only intrudes from the north, thus presenting a "T" configuration with the ramps joining at approximate angles of 45o .

The only traffic controls present at the intersection are a stop sign for vehicles approaching the highway southbound on Cottage and a yield sign for vehicles coming up the access ramp and entering the highway headed west. The accident here occurred when the Moyer car coming up the access ramp struck the right rear of the Burke car which had been eastbound on the highway and had turned left for the purpose of proceeding north on Cottage.

The details of the occurrence were virtually undisputed, the issue being which driver had the preferential right-of-way. The Burke car, eastbound on 24 Highway, stopped waiting for westbound traffic to clear and then made a turn onto Cottage very nearly clearing the intersection before the collision. The Moyer car had proceeded up the ramp at moderate speed with the driver's attention apparently directed to westbound highway traffic with which she was to merge when the sudden appearance of the Burke car at the juncture of the ramp, the entry into Cottage and the highway, precluded effective evasive action. Both drivers were aware of the other vehicle well in advance of the collision, but each assumed the other would yield.

Burke's theory of liability was predicated in part on § 304.351.4(1)(b), RSMo 1978, ¹ which states:

"The driver of a vehicle approaching a yield sign shall in obedience to the sign slow down to a speed reasonable to the exiting conditions and, if required for safety to stop, shall stop at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway. After slowing or stopping the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another highway so closely as to constitute an immediate hazard during the time such traffic is moving across or within the intersection."

Because the evidence bearing on the movements and relative positions of the vehicles as well as the physical features present at the location was virtually undisputed, it is unnecessary to accord Burke any preferences or intendments to which the jury verdict would otherwise entitle her. Beyond doubt, the Moyer car neither slackened speed nor stopped in response to the ramp approach yield sign, the Burke vehicle was first to enter the intersection, ² and some reduction in the speed of the Moyer car at the yield sign would have permitted the Burke car to clear the intersection without mishap.

While Burke did rely on a statutory duty for vehicle operation imposed on motorists by the yield sign, her cause was not submitted on a per se claim that violation of the yield sign was negligence. Rather, Burke's verdict directing and definition instructions left to the jury the decision of whether Moyer's vehicle was negligently driven. ³ Burke's instructions, here material, were as follows:

Instruction No. 4

Your verdict must be for plaintiff if you believe: First, defendant failed to yield the right of way, and Second, defendant was thereby negligent, and Third, as a direct result of such negligence, plaintiff sustained damage, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 6.

Instruction No. 5

The phrase "yield the right of way" as used in Instruction No. 4 means a driver is required to yield at the yield sign if the other vehicle is within the intersection or is so close to the intersection that it is an immediate hazard.

Burke thus relied on § 304.351 to support a general definition of a motorist's duty under certain conditions to grant preference to other vehicles when a yield sign is present. She did not, however, employ the statute for purposes of appraising the adverse driver's fault, but instead left it to the jury to decide whether the failure of Moyer to slow or stop in response to the yield sign was negligent under the conditions at hand. The jury's guide in this determination was furnished by a standard instruction, MAI 11.02, defining negligence.

Moyer's defense, presented in jury instructions which will be discussed subsequently, was twofold. She first contended that the yield sign at the subject intersection gave no preference to eastbound or oncoming traffic and that Burke could therefore claim no benefit of a right-of-way by reason of the sign. Secondly, Moyer asserted that left-turning vehicles are required to yield to approaching traffic as provided in § 304.351.3 and that Burke was therefore precluded from recovery by her failure to await passage of the Moyer car before making the turn. The judgment of the trial court expressly accepts these latter contentions and holds, as a matter of law, that Burke could make no case. It is this conclusion which Burke challenges in her first point on this appeal.

It is elementary that an act or omission of a motor vehicle operator is negligent only when the law casts some duty on the operator which the evidence shows the operator failed to perform. George v. Wheeler, 404 S.W.2d 426, 431 (Mo.App.1966); Vanacek v. St. Louis Public Service Co., 358 S.W.2d 808, 811 (Mo. banc 1962), cert. denied, 371 U.S. 920, 83 S.Ct. 287, 9 L.Ed.2d 229 (1962). A common law action for negligence may be based on allegation and proof that violation of a statutory duty constituted the negligent act of the defendant. Gaffner v. Alexander, 331 S.W.2d 662, 626 (Mo.1962). A submissible case is made when the plaintiff shows (1) a duty on the part of the defendant to protect the plaintiff from the injury of which he complains, (2) failure of the defendant to perform that duty, and (3) proximate causation of plaintiff's injury by defendant's failure to perform the duty. Dix v. Motor Market, Inc., 540 S.W.2d 927, 932 (Mo.App.1976); Nichols v. Blake, 418 S.W.2d 188 (Mo.1967).

On appeal from an order of the trial court setting aside a jury verdict and entering judgment for the defendant, the reviewing court considers only the evidence most favorable to the plaintiff and the reasonable inferences to be drawn therefrom and disregards the defendant's evidence unless it aids the plaintiff's case. ⁴ Bennett v. North Brighton Townhouses, Inc., 588 S.W.2d 100, 103 (Mo.App.1979). The case may not be taken from the jury unless there is no room for reasonable minds to differ on the proper disposition of the issues in the exercise of fair and impartial judgment. Johnston v. Sel-Mor Garment Co., 571 S.W.2d 691, 693 (Mo.App.1978); Gregory v. Robinson, 338 S.W.2d 88, 91 (Mo. banc 1960). Where fairminded men would draw different conclusions from the facts, the question is not one of law but of fact for the jury to settle. Ogden v. Toth, 542 S.W.2d 17, 19 (Mo.App.1976).

In the present case, the duty imposed on Moyer by the yield sign derives from the statute which instructs drivers to slow or stop for the benefit of other vehicles in the intersection or closely approaching. There was here no doubt and there could indeed be no argument but that vehicles upon the ramp approaching 24 Highway and the intersection with Cottage Street were obligated by the sign to yield the right-of-way to some other traffic and that Moyer neither slowed nor stopped. Under the negligence submission framed in plaintiff's verdict directing instruction, it was for the jury to decide whether Moyer used the care of a very careful and prudent person when she did not slow or stop to yield the right-of-way to the Burke vehicle. Bearing on that decision were the relevant facts including the nature and location of traffic signs, the content of traffic regulation statutes and the relative positions and movements of the vehicles.

The order of the trial court setting aside the jury verdict and entering judgment for Moyer was couched in language indicating that Burke's cause was found deficient as a matter of law. That result could arguably be upheld were plaintiff's theory of recovery to have been predicated on per se liability attributable only to the violation of the yield sign. As noted above, however, the theory of submission was not one of per se liability but required the decision of the jury as to whether, in the exercise of care and prudence taking into account the physical features of the intersecting roadways and the positions of the vehicles, defendant Moyer should have observed the restriction of the yield sign and was negligent in not doing so. The issue was one of fact to be resolved by the jury....