Bushong v. Marathon Elec. Mfg. Corp.

• Decision Date: 15 September 1986
• Docket Number: No. 14219,14219
• Citation: Bushong v. Marathon Elec. Mfg. Corp., 719 S.W.2d 828 (Mo. App. 1986)
• Parties: Timothy BUSHONG, Plaintiff-Appellant, v. MARATHON ELECTRIC MANUFACTURING CORPORATION, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 828

719 S.W.2d 828

Timothy BUSHONG, Plaintiff-Appellant, v.MARATHON ELECTRIC MANUFACTURING CORPORATION, Defendant-Respondent.

No. 14219.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 15, 1986.

Motion for Rehearing or to Transfer Denied Oct. 7, 1986.

Application to Transfer Denied Dec. 16, 1986.

Daniel P. Wade, Wade & Haden, Rodney E. Loomer, M. Sean McGinnis, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, for plaintiff-appellant.

Jeffrey H. Harrison, David A. Geisler, Springfield, for defendant-respondent.

FLANIGAN, Judge.

PlaintiffTimothy Bushong brought this action against defendantMarathon Electric Manufacturing Corporation for personal injuries allegedly sustained by plaintiff as a result of a collision involving a Mustang operated by plaintiff and a tractor trailer unit operated by defendant's employee, Orval Barks.At the conclusion of the five-day trial the jury returned a verdict in favor of defendant.Plaintiff appeals from the judgment entered on the verdict.

Plaintiff's first point is that the trial court erred in giving InstructionNo. 7 at the request of defendant.InstructionNo. 7 reads:

"INSTRUCTIONNO. 7

You must assess a percentage of fault to plaintiff, Timothy Bushong, if you believe:

First,

plaintiff, Timothy Bushong, failed to keep a careful lookout, or

plaintiff, Timothy Bushong, drove at an excessive speed, or

plaintiff, Timothy Bushong's automobile was on the wrong side of the road, and

Second,

plaintiff, Timothy Bushong, in any one or more of the respects submitted in paragraph First, was thereby negligent, and

Third,

such negligence of plaintiff, Timothy Bushong, directly caused or directly contributed to cause any damage plaintiff, Timothy Bushong, may have sustained."

Plaintiff's criticism of InstructionNo. 7 is that there was insufficient evidence to submit those portions of paragraph First permitting the alternate findings that plaintiff"failed to keep a careful lookout" or "drove at an excessive speed," and that neither should have been submitted as an assignment of comparative fault.Further, with respect to each of those submissions, plaintiff claims that the evidence was insufficient to support the findings required by paragraph Third.

Seeking to uphold the giving of InstructionNo. 7, defendant makes these alternative arguments: (a) the evidence was sufficient to support InstructionNo. 7, and (b) even if the evidence was not sufficient, the error was not prejudicial.

The collision occurred on Highway 5 approximately one mile south of Hartville at approximately 9:30 p.m., July 8, 1982.Prior to the collision plaintiff Bushong was driving his Mustang generally north on the two-lane highway and defendant's tractor trailer unit, operated by Orval Barks, was proceeding generally south.

Bushong testified that he was traveling at approximately 40 miles per hour; as he proceeded into a right hand curve he observed the headlights of defendant's unit approaching from the north; defendant's unit was approximately half way into the curve with the left side of the tractor and trailer wheels located in the northbound lane; the truck was "just astraddle" of the center line; Bushong immediately applied his brakes and his car started sliding "in a straight direction for a ways"; the road was wet; after his car slid straight for a distance, "my car just turned across the center line"; Bushong's last recollection before the impact was that his vehicle was then approximately one car length from the tractor trailer unit.

Orval Barks testified that he was driving a tractor trailer unit, "an 18-wheeler," between 40 and 45 miles per hour."I came into a curve which went to my right and then as I encountered the second curve the road turned to my left.The accident happened in the second curve.It was not raining but the road was damp.I was more than half way through the curve with the front of my truck when I first saw the Bushong vehicle.I was headed uphill.The Bushong vehicle was on its side of the road when I first saw its lights.When I first saw the Bushong vehicle it was 50 to 75 feet from me.From the time I first saw the Bushong vehicle lights until the two vehicles collided, approximately one second elapsed.I have no way to judge the speed of the Bushong vehicle.I saw Bushong's headlights, there was nothing unusual happening, I lost his headlights, I heard tires squealing, I saw tail lights coming at me.When I saw the tail lights they were in my lane.At that time the right rear corner of the Bushong vehicle was closest to me.The tail lights were about five feet from me when they appeared in my lane.When I saw the tail lights I applied my brakes as hard as I could.My truck was in the right hand lane.The pavement was about 20 feet wide.At no time was I in the wrong lane.I was still in my own lane when the vehicles slowed and came to a stop."

Highway Patrolman Nielsen, who investigated the accident, testified that the impact occurred in the southbound lane and that Bushong's skidmarks commenced in the northbound lane but turned into the southbound lane prior to the impact.

When a verdict directing instruction submits in the disjunctive two or more assignments of negligence, the instruction is erroneous unless the evidence is sufficient to support all of the assignments.Shelton v. Bruner, 449 S.W.2d 673, 676(Mo.App.1969).For the reasons which follow, this court holds that the trial court erred in giving InstructionNo. 7 because the evidence was insufficient to support a finding that plaintiff failed to keep a careful lookout.It is unnecessary to consider whether the evidence was sufficient to support the alternate finding that plaintiff drove at an excessive speed.

In Bunch v. McMillian, 568 S.W.2d 809, 811[3-5](Mo.App.1978), the court said:

"Negligence consisting of a driver's failure to keep a careful lookout is not to be submitted to the jury unless there is substantial evidence from which the jury could find that the driver, in the exercise of the highest degree of care to keep a careful lookout, could have seen the other vehicle or person in time thereafter to have taken 'effective precautionary action.'... A lookout instruction submits failure to see and failure to avoid injury 'by "any means supported by the evidence." '... Although a lookout instruction need not hypothesize the means by which the driver, charged with failing to keep a careful lookout, could have avoided the collision, the evidence must support a finding that he possessed and failed to use such means....

'Having the means and ability to avoid a collision means not only the mechanical appliances, such as steering apparatus with which to swerve, signalling equipment with which to warn, or braking appliances with which to slow down or stop, but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged [with failure to keep a careful lookout] to take effective action in avoidance.' "(Citing authorities.)

Defendant had the burden of showing a causal connection between the submitted negligence, that is Bushong's failure to keep a lookout, and the injuries sustained and if the evidence leaves "the element of causal connection in the nebulous twilight of speculation, conjecture and surmise,"Shelton, supra, 449 S.W.2d at 680, the burden was not met.

"The object and purpose of the strict requirement that persons operating motor vehicles keep a proper lookout upon public streets and highways is that they may acquire knowledge of the presence of other persons and objects on such streets and highways, and an awareness of dangerous situations and conditions.It is only because of that knowledge and awareness that the operators of motor vehicles may take appropriate precautionary measures to avoid injury to themselves and other persons within an existing area of peril."

Miller v. St. Louis Public Service Co., 389 S.W.2d 769, 771(Mo.1965.)(Emphasis added.)

The duty to keep a careful lookout and the concomitant duty to take effective precautionary action do not arise at precisely the same moment.Thomas v. Wade, 361 S.W.2d 671, 674(Mo. banc 1962);Graham v. Conner, 412 S.W.2d 193, 202(Mo.App.1967)."The question then is, when does the duty to act arise?It is not necessarily at the exact time there was a duty to see....[T]he duty to act when one does or should see arises at the time that a person, in the exercise of the highest degree of care, knew or should have known that there was danger, that is, a likelihood of injury."Thomas v. Wade, supra, 361 S.W.2d at 674.(Emphasis added.)

Other cases are in accord."[T]he purpose of the lookout duty is to apprise the operator of danger."Page v. Baxter, 503 S.W.2d 32, 34(Mo.App.1973).(Emphasis added.)"It is necessary that in order to authorize the giving of an instruction on failure to keep a careful lookout, that substantial evidence be produced showing that the person charged with that negligence, in the exercise of proper care, could and should have seen the danger of injury in time thereafter to have taken available and effective precautionary action.Zalle v. Underwood, Mo., 372 S.W.2d 98, 102;Allen v. Bi-State Development Agency, Mo.App.452 S.W.2d 288."Young v. Grotsky, 459 S.W.2d 306, 309(Mo.1970)(Emphasis added)."In order to warrant or justify the submission of the failure to keep a proper lookout, it must be shown by one party that the other party could have seen the danger of collision in time to have taken evasive action."Finninger v. Johnson, 692 S.W.2d 390, 393-94(Mo.App.1985).

Defendant's evidence was that at all times the tractor trailer unit was in its proper lane.Defendant adduced no evidence that the tractor trailer unit moved toward the center lane or toward its improper lane.Under defendant's evidence, the movements of the tractor trailer unit did not present a dangerous situation.

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