Cowan v. Perryman, 14869

• Decision Date: 02 October 1987
• Docket Number: No. 14869,14869
• Citation: 740 S.W.2d 303
• Parties: Everett Doyle COWAN, Jr., et ux., Plaintiffs-Appellants, v. Dennis Woodrow PERRYMAN, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 303

740 S.W.2d 303

Everett Doyle COWAN, Jr., et ux., Plaintiffs-Appellants, v. Dennis Woodrow PERRYMAN, Defendant-Respondent.

No. 14869.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 2, 1987.

Motion for Rehearing or Transfer

Denied Oct. 20, 1987.

Application to Transfer Denied Dec. 15, 1987.

Bob J. Keeter, Wear, Keeter, Karchmer, Nelms, Kirby & Johnson, Loren R. Honecker, Sherwood, Honecker & Bender, Springfield, for plaintiffs-appellants.

David Donnelly, James E. Baldwin, G. Stanley Moore, Donnelly, Baldwin and Wilhite, Lebanon, for defendant-respondent.

FLANIGAN, Judge.

This personal injury action, brought by plaintiffs Everett Cowan, Jr. and his wife Carol Cowan against defendant Dennis Perryman, arose out of an automobile collision which occurred on Missouri Route J in Laclede County, involving a 1977 Dodge Colt operated by Cowan and a 1979 Mercury driven by defendant. The claim of Carol Cowan was based on her alleged loss of the services and consortium of Cowan.

The verdict of the jury, returned with respect to the claim of plaintiff Cowan, assessed percentages of fault as follows: "Defendant Dennis Perryman--75 percent; plaintiff Everett Doyle Cowan, Jr.--25 percent." The jury also found the total amount of Cowan's damages "disregarding any fault on the part of [Cowan]," to be $1,000. By separate verdict the jury found the total of plaintiff Carol Cowan's damages to be "$0." Pursuant to the verdicts, the trial court entered judgment awarding plaintiff Everett Cowan $750 on his claim and denied plaintiff Carol Cowan recovery on her claim. Plaintiffs appeal.

Plaintiffs' first point is that the trial court erred in submitting, at defendant's request, Instruction 9 which applied to the claim of Cowan. Instruction 9, based on MAI 17.12 and MAI 37.02 [1986 New], reads:

"INSTRUCTION NO. 9

In your verdict you must assess a percentage of fault to plaintiff if you believe:

First, plaintiff suddenly stopped his automobile on the highway without first giving adequate and timely warning of his intention to stop, and

Second, plaintiff was thereby negligent, and

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

Plaintiffs contend that Instruction 9 "was not supported by substantial evidence in that the record contains no evidence that Cowan stopped his automobile 'suddenly' or that his failure to signal directly caused or contributed to cause any of the ensuing damage."

It is error to give an instruction where there is no substantial evidence to support the issues submitted. Brassfield v. Sears, 421 S.W.2d 321, 323 (Mo.1967); Buus v. Stocker Oil Co., 625 S.W.2d 236, 237 (Mo.App.1981). Defendant, as the party offering Instruction 9, had the burden of showing a causal connection between the alleged negligent conduct of Cowan and the injuries sustained. Lewis v. State Sec. Ins. Co., 718 S.W.2d 539, 541 (Mo.App.1986); Bunch v. McMillian, 568 S.W.2d 809, 811 (Mo.App.1978). If the evidence presented "leaves the causal connection in the nebulous twilight of speculation, conjecture and surmise," the burden is not met and the instruction should not have been given. Id.

Missouri has adopted comparative negligence by court decision. Comparative negligence has no application where the negligence of one party is the sole proximate cause of an accident and the other party is not guilty of negligence. Finninger v. Johnson, 692 S.W.2d 390, 393 (Mo.App.1985). To determine whether Instruction 9 was supported by substantial evidence this court must view the evidence and inferences in the light most favorable to defendant and disregard all contrary evidence and inferences. Allen v. Perry, 722 S.W.2d 98, 100 (Mo.App.1986). Defendant is entitled to the benefit of plaintiffs' evidence favorable to defendant and not contradicted by defendant's evidence or defendant's theory of the case. Certa v. Associated Bldg. Center, Inc., 560 S.W.2d 593, 597 (Mo.App.1977).

Section 304.019 ¹ reads, in pertinent part:

"No person shall stop or suddenly decrease the speed of or turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided herein.

(1) An operator or driver when stopping, or when checking the speed of his vehicle, if the movement of other vehicles may reasonably be affected by such checking of speed, shall extend his arm at an angle below horizontal so that the same may be seen in the rear of his vehicle;

* * *

(4) The signals herein required shall be given either by means of the hand and arm or by a signal light or signal device in good mechanical condition of a type approved by the state highway patrol...."

The collision occurred at approximately 2:00 p.m. on June 30, 1983, a clear day. Immediately prior to the collision three vehicles were proceeding west on Route J, an asphalt two-lane state highway. The lead vehicle was driven by a Mrs. Bohannon, the second vehicle was the Dodge operated by Cowan, and the third vehicle was the Mercury operated by defendant. The posted speed limit was 35 miles per hour.

Plaintiff Cowan testified that he left the parking lot of a bank located about .2 of a mile east of the accident scene and proceeded west on Route J at a speed of 25 to 30. Cowan testified: "There was a car in front of me with a left turn signal on. I started slowing down until I got right behind her [the Bohannon car] and I stopped. I came to a complete stop. Mrs. Bohannon could not make a left hand turn [into a driveway] because there was a vehicle coming from the other direction. As I was slowing to stop behind her, I saw, in my rear-view mirror, a red Mercury coming up from behind me. I couldn't tell what [Perryman's] speed was. It was coming fast. The Perryman car was back somewhere in the neighborhood of the bank, just this side of it, when I first saw it. I came to a stop behind the Bohannon car, almost to a stop, at about a 10-foot distance. I rolled up a little closer like within six feet and when I did I looked back up in the mirror. By this time the Perryman car was close enough that I could detect pretty much what speed he was going and he was going 50. It looked like I was going to be hit so I started to shove the car in gear and turn my wheels. I was going to try to go around the lady. I did not take my foot off the brake before Perryman hit me. I did not move any before Perryman struck me. The Perryman car hit the rear end of my car and damaged the trunk area and back end. I don't remember whether it broke out the right tail light but there was more damage to the right side than to the left. The impact slung me backward and it broke off the back of my seat and then it knocked me into the Bohannon car and threw me forward and broke a mirror off and I hit the windshield and cracked and knocked the top out of it."

On cross-examination Cowan testified that he could not recall the distance the Mercury was behind him the second time he looked. Cowan said: "I don't know whether or not my brake lights or tail lights were working at the time. I did not give an arm signal to indicate I was slowing or stopping."

Highway patrolman Larry Henson, a witness for the plaintiffs, investigated the accident. He testified that he saw skidmarks left by sliding tires. They were all in the westbound lane and they led up to Cowan's car. They were 22 or 24 feet long. "I determined that Perryman's car made those skidmarks." He said the damage to the front end of the Cowan car was "very minor" and that he did not check the lights on the Cowan car. There was damage to the rear of the Cowan car, the trunk area and the bumper. He estimated the speed of the Perryman vehicle at 30 miles per hour.

Testifying in his own behalf, defendant Perryman said that he was driving his Mercury Marquis west on Highway J behind the Cowan car. Larry Dill was riding with him. Perryman said that he stopped at the intersection of "CC and J" where the bank is located and turned left and proceeded west on Route J. The accident occurred about .2 of a mile west of the intersection of CC and J.

Perryman said, "As I went that .2 of a mile I was following about 100 feet behind Cowan's car, 100 feet between the front of my car and the rear of the Cowan car. As I was following the Cowan car, going 30 miles an hour, the next thing I noticed was that Cowan stopped or nearly stopped without any signal. Cowan was approximately 60 feet in front of me when he stopped or nearly stopped without any signal.

"When I noticed Cowan stopped or nearly stopped on the highway, I immediately applied my brakes and swerved to the right. My wheels locked up and slid. I left some tire marks on the pavement because of that. I then slid into the back of Cowan's car. Cowan had not given a hand signal before he stopped. I was able to slow down before the impact. At the time of the impact my speed was around 15. I was able to apply my brakes immediately when I noticed Cowan sitting there. The impact moved the Cowan car two to two and one-half feet.

"After the collision Cowan's car was still on the highway with one wheel off the highway. My car ended up still on the highway in the right hand lane. I was looking ahead. I never took my eyes off the road as I was going from the intersection of CC down to where the accident happened. At the time I saw Cowan stopped on the pavement, traffic was coming toward me and I could not veer to the left because of that traffic. On the right hand side was a ditch. I had the Cowan car in view at all times.

"The trooper gave me a ticket for following too close and I paid it. I told Trooper Henson about the brake lights not showing up on Cowan's car. The front end of my car was damaged, the parking lights were knocked out on the right hand side and there was minor damage to the grill and hood....