Charles v. Ryan

• Decision Date: 02 June 1981
• Docket Number: No. WD,WD
• Citation: 618 S.W.2d 220
• Parties: Frederick H. CHARLES, Plaintiff-Respondent, v. Margie L. RYAN, Defendant-Appellant. 31185.
• Court: Missouri Court of Appeals

Page 220

618 S.W.2d 220

Frederick H. CHARLES, Plaintiff-Respondent, v. Margie L. RYAN, Defendant-Appellant.

No. WD 31185.

Missouri Court of Appeals, Western District.

June 2, 1981.

Max Von Erdmannsdorff, Kansas City, for defendant-appellant.

Rubins, Kase & Rubins, Arthur J. Kase, Morris & Foust, Max W. Foust, Lloyd L Messick, Kansas City, for plaintiff-respondent.

Before KENNEDY, P. J., and SHANGLER and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Plaintiff Frederick H. Charles (Charles), operator of a 1971 Ford Mustang, was involved in an intersection collision with a 1974 Chevrolet Vega operated by defendant Margie L. Ryan (Ryan).

Charles filed suit against Ryan for damages for personal injuries and property damage. In answering Charles' petition, Ryan pleaded general denial coupled with the affirmative defense of contributory negligence. Ryan also filed a counterclaim against Charles for damages for personal injuries.

At the close of all the evidence Charles filed separate motions for (1) a directed verdict in his favor and against Ryan on the issue of liability and for (2) a directed verdict in his favor and against Ryan on her counterclaim. Although the trial court overruled Charles' motion for a directed verdict on the issue of liability, it sustained his motion for a directed verdict on Ryan's counterclaim without stating any grounds or reasons for doing so. Charles' cause of action was then submitted to the jury on one ground of primary negligence Ryan's failure to keep a "careful lookout". A ten man verdict was returned which found the issues in favor of Charles and assessed his damages in the lump sum amount of $18,500.00. Judgment was entered in favor of Charles in accordance with the jury's verdict.

Ryan appealed following an unsuccessful motion for new trial. The first of the following four points raised by Ryan is primarily dispositive of this appeal: (1) the trial court erred in not giving MAI 11.02(II) defining the terms "negligence" and "negligent" used in Charles' verdict director submitting failure to keep a "careful lookout" ¹ ; (2) the trial court erred in not providing the jury with a verdict form in compliance with Rule 71.06, to wit, MAI 36.02, as Charles sought damages for both personal injuries and property damage; (3) the trial court erred in failing to give Ryan's requested instructions on contributory negligence; and (4) the trial court erred in directing a verdict in favor of Charles on Ryan's counterclaim.

The trial court's failure to give an instruction defining "negligent" and "negligence" is the focal point of Ryan's first point. The verdict directing instruction submitting Ryan's purported failure to keep a careful lookout employed both terms. The 1977 revised "Notes on Use" appended to MAI 11.02 categorically state that "(w)hen the term 'negligent' or 'negligence' is used it must be defined." Prior to the 1977 revision cases went in different directions with respect to whether failure to define "negligent" and "negligence" constituted reversible error. The revision obviously responded to a recurring problem and was intended to eliminate the state of fluxion in the case law regarding when a failure to define "negligent" and "negligence" constituted reversible error. As this case was tried subsequent to the effective date of the aforementioned revision, failure of the trial court to define "negligence" and "negligent" used in Charles' verdict directing instruction constituted reversible error. Moreover, Rakestraw v. Norris, 478 S.W.2d 409 (Mo.App.1972), decided prior to the revision just noted, held that it was reversible error not to define "negligent" and "negligence" in a case submitted on failure to keep a careful lookout as the latter term was one of variable meaning and did not in itself denote a specific standard of care.

Charles vainly strives to hold his verdict by arguing that failure to define "negligent" and "negligence" for the jury in the instant case was harmless error because Ryan was guilty of failure to keep a careful lookout as a matter of law hence, the only issue for the jury was the amount of damages. This argument is an outgrowth of Charles' proffered but denied motion for a directed verdict on the issue of liability made at the close of all the evidence. Instances of granting a directed verdict in favor of a plaintiff on the issue of liability in a jury tried negligence action at the close of all the evidence, and, its natural counterpart, a determination on appellate review that a defendant was guilty of negligence as a matter of law, are exceedingly rare in the annals of Missouri case law. The paucity of cases reflects a zealously guarded effort to preserve the integrity of the jury as the ultimate fact finder in jury tried cases. Accordingly, when confronted with a claim such as that presently urged by Charles, the evidence, and all reasonable inferences to be drawn therefrom, are to be viewed in the light most favorable to Ryan, and all unfavorable evidence and inferences are to be disregarded. Alaska Federal Savings & Loan Assn. v. Hoffman, 485 S.W.2d 118, 120 (Mo.App.1972).

The evidence, viewed in conformity with the above, lends itself to being stated as follows. On the morning of March 25, 1976, Charles was driving a 1971 Ford Mustang in a westerly direction on 118th Street Terrace approaching the intersection of 118th Street Terrace and Delmar Street in Kansas City, Missouri. He was en route to work at the time, was traveling at a speed of 35 to 40 miles per hour, and never reduced his speed prior to impact. The posted speed limit on 118th Street Terrace was 25 miles per hour. Ryan was driving a 1974 Chevrolet Vega in a southerly direction on Delmar Street and approaching the intersection at a speed of approximately 20 miles per hour. There were "yield" signs north and south of the intersection on Delmar Street, and 118th Street Terrace was a "through" street. Ryan reduced the speed of her automobile an indeterminate amount as she approached the "yield" sign posted north of the intersection. There was no evidence as to the location of this "yield" sign with respect to the north edge of the intersection or any other fixed point. As Ryan approached the "yield" sign she first looked to her left (east), then to her right (west), and, seeing nothing, proceeded into the intersection. It was raining at the time and there was an evergreen tree in the northeast corner of the intersection. Charles saw the Ryan automobile "coming from the right as he was on top of the intersection and swerved." The front end of Ryan's automobile struck the right side of the Charles' automobile. The extent to which Charles swerved and the speed of Ryan's automobile as it entered the intersection are unknown. The respective positions of the automobiles before and at the time of impact were never described with any degree of specificity or in relation to any ascertainable fixed point. In many salient respects the evidence is more noteworthy for what it does not show than for what it does show.

An integral component of actionable negligence for failure to keep a careful lookout is that one charged with such negligence, in the exercise of the highest degree of care, could have seen the other vehicle involved in time thereafter to have taken "effective precautionary action". Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo.banc 1970). The means and ability to avoid a collision are requisite evidentiary considerations when failure to keep a careful lookout is submitted. Zalle v. Underwood, 372 S.W.2d 98, 102 (Mo.1963). As discussed at greater length in Zalle, "(h)aving the means and ability to avoid a collision means not only the mechanical appliances ... 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." It is also well established that the operator of a motor vehicle is under no duty to maintain a constant lookout in a particular direction, and whether he is negligent in failing to keep a lookout in a particular direction is usually a jury question. Slaughter v. Myers, 335 S.W.2d 50, 54 (Mo.1960).

When the principles mentioned above are collectively superimposed upon the evidence in proper perspective, Ryan's purported failure to keep a careful lookout was a jury question. This court reaffirms that the trial court committed reversible error in not...