Countryman v. Seymour R-II School Dist., R-II

• Court: Court of Appeal of Missouri (US)
• Citation: 823 S.W.2d 515
• Docket Number: R-II,17638,Nos. 17455,s. 17455
• Parties: 72 Ed. Law Rep. 1195 Sam COUNTRYMAN and Mary Countryman, Plaintiffs-Respondents-Appellants, v. SEYMOURSCHOOL DISTRICT and Eual Nichols, Defendants-Appellants, and Cameron Mutual Insurance Company, Garnishee-Respondent.
• Decision Date: 28 January 1992

Page 515

823 S.W.2d 515 72 Ed. Law Rep. 1195 Sam COUNTRYMAN and Mary Countryman, Plaintiffs-Respondents-Appellants,
v.
SEYMOUR R-II SCHOOL DISTRICT and Eual Nichols, Defendants-Appellants,
and
Cameron Mutual Insurance Company, Garnishee-Respondent. Nos. 17455, 17638. Missouri Court of Appeals,
Southern District,
Division One. Jan. 28, 1992.

Page 516

Thomas Strong, Douglas W. Greene, Steve Garner, Strong & Associates, P.C., Springfield, for plaintiffs-respondents-appellants.

Rodney E. Loomer, Sherry A. Rozell, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, for defendants-appellants.

JoAnne Spears Jackson, Bussell, O'Neal & Hall, Springfield, for garnishee-respondent.

Page 517

PREWITT, Presiding Judge.

This action is for the wrongful death of plaintiffs' seven-year-old daughter. She was struck by a school bus operated by defendant Eual Nichols. Following trial by jury, a verdict was returned in favor of plaintiffs and against both defendants for $350,000.

Judgment was entered for $100,000 against Seymore R-II School District, see § 537.610.2, RSMo 1986 (since amended, see RSMo Supp.1990), and against Eual Nichols for $350,000 plus pre-judgment interest. Defendants appeal from the judgment. Plaintiffs appeal from summary judgment in favor of garnishee. The appeals were consolidated.

On appeal, No. 17455, defendants contend that the trial court erred in finding that plaintiffs made a submissible case of negligence "for failure to keep a careful lookout (Paragraph "First" of Verdict Director) or failure to swerve (Paragraph "First" of Verdict Director)". Defendants state in their first point "that there was no evidence which established that Samantha Countryman was in a position of danger, that Nichols knew or should have known that she was in potential danger, or that he had time thereafter to have taken effective precautionary action."

If a submissible case was made on either lookout or swerve, then the trial court correctly denied defendant's motion for a directed verdict. If we determine a case was also made on failure to keep a careful lookout, it is not necessary to decide if a submissible case was made on the failure to swerve. ¹

In reviewing to determine if a submissible case was made, the evidence and reasonable inferences from it are viewed most favorable to plaintiffs. Wilson v. Missouri-Kansas-Texas Railroad Co., 595 S.W.2d 41, 44 (Mo.App.1980). The driver of a motor vehicle in Missouri is required to "exercise the highest degree of care." § 304.010.1, RSMo Supp.1990. This requirement is applicable to civil actions for damages as a result of the operation of a motor vehicle. See Kindle v. Keene, 676 S.W.2d 82, 84-85 (Mo.App.1984); MAI 11.01, 11.03.

Operators of motor vehicles have a duty to keep a vigilant lookout ahead and laterally. Goodloe v. Pink, 683 S.W.2d 653, 655 (Mo.App.1984). See also MAI 17.05, submitting the duty "to keep a careful lookout". To support a case on the theory of failure to keep a lookout, there must be evidence that defendant saw or could have seen plaintiff in time to have avoided the collision. Jenkins v. Jordan, 593 S.W.2d 236, 238 (Mo.App.1979). Circumstantial evidence may make a submissible case on failure to keep a lookout. Id.

The driver of a motor vehicle is under a duty to take effective precautionary action when a person, in the exercise of the highest degree of care, would anticipate danger. Foster v. Farmers Ins. Co., 775 S.W.2d 143, 144 (Mo. banc 1989). The driver's obligation to maintain a lookout extends to a pedestrian standing upon the shoulder or upon the traveled part of the roadway. Id. The driver is held to have seen what looking would have revealed and failure to do so is negligence as much as if he had not looked at all. Id. at 145.

The operator of a vehicle should recognize that a child of tender years on or near a roadway is almost entirely devoid of the appreciation of danger. Hildreth v. Key, 341 S.W.2d 601, 607 (Mo.App.1960). Thoughtless and impulsive acts of children are to be expected and should be guarded against. Id. See also Thomas v. Wade, 361 S.W.2d 671, 674 (Mo. banc 1962).

Upon leaving the grade school in Seymour, Missouri, on December 18, 1987, seven-year-old Samantha Countryman got on a school bus operated by defendant Eual Nichols. On certain days of the week she would ride the bus from school to near her baby sitter's house. The bus left the school traveling south on Commercial

Page 518

Street. It stopped at a stop sign at the corner of Commercial and Market where Samantha got off the bus.

At the intersection, the bus turned right and went west on Market Street, then stopped at the corner of Market and Frances Streets. No children were let off at this stop. The bus then turned right and headed north on Frances Street. Samantha walked along Market Street to the corner of Market and Frances and then turned north and went down the east side of Frances Street toward her babysitter's house. There was no paved sidewalk along Frances Street. It had snowed earlier in the week and road graders had pushed snow and ice to the gravel shoulders bordering the streets. As a result of the road graders removing snow and ice there was snow and ice along Frances Street. There was evidence that it was difficult to distinguish between the road surface and the shoulder.

Samantha was wearing a coat with a hood. She walked north down Frances Street ahead of the bus along the east edge of the roadway with her back to the bus and the hood of her coat around her head. She was skipping or jogging. Nichols testified that after Samantha left the school bus, he last observed her on Market Street. He drove five miles an hour or less along Frances Street. Samantha was struck by an outside rear dual tire of the bus 90 feet from the corner of Frances and Market. Her body was found part on the paved portion of the roadway and part on the gravel shoulder.

The operator of a motor vehicle who sees a child along the roadway has an obligation to watch the child so as to avoid striking her. Numerous occupants of the school bus had seen Samantha moving along Frances Street. Nichols said he did not. It is obvious that if he had seen her he should have continued to watch for her, particularly with snow and ice along the street that day. Had Nichols watched her, the jury could find that at the slow speed the bus was moving, he could have prevented the bus from coming upon and striking her. There was no evidence that Samantha went further toward the center of the roadway than she had been moving along Frances Street. At five miles an hour Nichols could have easily stopped or turned the bus or could have driven it further away from Samantha.

Failing to see Samantha indicates failure to keep a careful lookout. If he had seen her, Nichols could have slowed further, stopped or swerved to avoid striking her. There was sufficient evidence for the jury to find that Nichols failed to keep a careful lookout and that had he done so, the bus would not have struck Samantha. Point one is denied.

The second point presented by defendants asserts that "the trial court erred in denying appellants' request for a mistrial because respondents' comment on appellants' alleged failure to call other passengers as witnesses was improper in that these witnesses were equally available to both parties." Defendants cite as authority Kelly v. Jackson, 798 S.W.2d 699 (Mo. banc 1990); Leehy v. Supreme Express & Transfer Co., 646 S.W.2d 786 (Mo. banc 1983); Hill v. Boles, 583 S.W.2d 141 (Mo. banc 1979); and Routh v. St. John's Mercy Medical Center, 785 S.W.2d 744 (Mo.App.1990). The cases cited by defendants do not involve a situation, where, as here, the objection to the argument was sustained and the jury instructed to disregard the comment. Thereafter, counsel for defendants moved for a mistrial. That request was denied.

Assuming, without deciding, that the argument was improper, there was no prejudicial error. Granting a mistrial rests in the sound discretion of the trial court which, absent a manifest abuse of discretion, will not be disturbed on appeal. Pierce v. Platte-Clay Electric Co-op., 769 S.W.2d 769, 778 (Mo. banc 1989); Wild v. Consolidated Aluminum Corp. 752 S.W.2d 335, 338 (Mo.App.1988). "A mistrial is a drastic remedy which should only be granted where the incident is so grievous that the prejudicial effect can be removed in no other way." Wild, 752 S.W.2d at 338.

The trial court sustained the objection and told the jury to disregard the remark.

Page 519

Apparently the trial judge determined this was sufficient to remove any prejudice made by the comment. We cannot say that the statement, if improper, was so serious as to require the drastic remedy of a mistrial. The second point is denied.

Defendants ask this court in their third point to review a portion of plaintiffs' attorneys' closing argument as "plain error" under Rule 84.13. No objection was made to the comments complained of. Those are as follows:

You know, Mr. Loomer [defendants' attorney] mentioned the Persian Gulf war and as he was making his argument I kind of thought this is a lot like the Persian Gulf war. Because the issue there is whether a mad man can go into a peaceful country, kill innocent people, take their land, and remain there. That's the issue. But Saddam Hussein doesn't want people to focus on that issue. So he bombs Israel and says maybe there will be a holy war. And he lets oil go out into the environment and kill fish and he says maybe people will get distracted from the issue. And the issue in this case is whether that child was out in front of the bus where she could have been seen. That is the issue.

* * * * * *

There is a recent case in the news. The Mayor of Washington, D.C. was on television camera smoking crack cocaine with his mistress. He had a very crafty lawyer. And the mayor was black and the lawyer convinced the jury that the issue was a racial issue and...