Crane v. Drake
Decision Date | 03 February 1998 |
Docket Number | Nos. WD,s. WD |
Citation | 961 S.W.2d 897 |
Parties | Robin CRANE, Appellant, v. Robert DRAKE, Defendant Ad Litem for Bobby C. Allinson, Deceased, et al., Respondents. 54023, WD 54024. |
Court | Missouri Court of Appeals |
J. Kirk Rahm, Warrensburg, for Appellant.
James E. Baldwin, Lebanon, for Defendant Ad Litem/Respondent.
John Edmund Turner, Kansas City, Terry M. Evans, Trenton, for Respondent Crane.
Before SPINDEN, P.J., and LAURA DENVIR STITH and EDWIN H. SMITH, JJ.
Robin Crane appeals the circuit court's judgment directing verdicts against her on her personal injury claims against her husband, Ronald K. Crane, and the defendant ad litem (the DAL) appointed for Bobby C. Allinson (the decedent). In addition, Mr. Crane appeals the circuit court's judgment directing a verdict against him on his cross- claim for personal injuries against the DAL. The appeals have been consolidated pursuant to Rule 66.01.
Mrs. Crane advances two points on appeal. She claims that the trial court erred: (1) in granting the DAL's motion for a directed verdict on her personal injury claim against him because she made a submissible case of negligence; and (2) in granting Mr. Crane's motion for a directed verdict on her personal injury claim against him because she made a submissible case of negligence. In his sole point on appeal, Mr. Crane claims that the trial court erred in granting the DAL's motion for a directed verdict on his personal injury claim against him because he made a submissible case of negligence.
We reverse and remand.
The evidence viewed in a light most favorable to the Cranes is as follows. Mathis v. Jones Store Co., 952 S.W.2d 360, 365 (Mo.App.1997). In the early evening hours of November 24, 1993, a collision occurred on Missouri Highway 83 on the Big Pomme Bridge over Truman Lake just south of Warsaw in Benton County, Missouri. The collision involved a 1990 Ford Aerostar van operated by Ronald K. Crane and a disabled and stationary 1991 Ford Aerostar which had been operated by decedent, Bobby C. Allinson. Mrs. Crane was a passenger in the vehicle driven by Mr. Crane. Prior to the collision, the decedent and Mr. Crane had both been driving northbound on Highway 83. It was very cold, windy, and was misting. There was evidence that the decedent was aware that the conditions were right for the formation of ice, and that ice tended to form on bridges before it formed on other sections of the highway. The bridge was icy, and no gravel, salt or any other substance had been spread.
Prior to the collision between the vehicles of the decedent and Mr. Crane, the decedent had lost control of his van which skidded, leaving forty-eight feet of skidmarks, and struck the concrete guardrails on both sides of the bridge before coming to rest primarily in the southbound lane of traffic, blocking both lanes of traffic, where it remained until the collision with Mr. Crane's vehicle.
As Mr. Crane approached the south end of the bridge, but before his van actually entered onto the bridge, Mrs. Crane observed that there had been an accident on the bridge and mentioned it to him. Mr. Crane, who had been traveling about 55-60 miles per hour slowed down as he entered the bridge. As he approached, Mr. Crane saw the decedent's van stopped in the southbound lane and protruding a few feet into the northbound lane, with a couple of people standing nearby. There were no lights or flashers operating on the decedent's vehicle at this time.
After traveling a few hundred feet on the bridge, Mr. Crane applied his brakes, lost control of his van, crossed into the southbound lane of traffic, attempted to pump his brakes to regain control and then struck the left or west concrete guardrail and the back of the decedent's van. In doing so, Mr. Crane's vehicle left 150 feet of skidmarks. Because of the location of the decedent's van, there was insufficient room in the northbound lane for Mr. Crane to drive around it to avoid the collision. As a result of the collision between the two vehicles, although it is unclear how it occurred, the decedent was found dead in Truman Lake. Mr. Crane suffered a laceration to his eyelid and fractured three ribs on his left side, and Mrs. Crane suffered injuries to her neck, chest, ribs, shoulders, and wrists.
On August 17, 1994, Mrs. Crane filed a two-count petition to recover for the injuries she sustained in the collision between her husband's and the decedent's vehicles, wherein she alleged that her injuries were caused by the negligence of the decedent and Mr. Crane respectively. On November 28, 1994, Mr. Crane filed his answer to Mrs. Crane's petition wherein he denied that he caused her injuries. On November 30, 1994, the DAL filed his answer, wherein he denied that the decedent caused Mrs. Crane's injuries. He also filed a cross-claim against Mr. Crane which prayed for indemnification from Mr. Crane in the event judgment was entered against him on Mrs. Crane's claim. On the same day, Mr. Crane filed a cross-claim against the DAL, which prayed for indemnification in the event judgment was entered against him for a percentage equal to decedent's relative fault. On December 7, 1994, Mr. Crane filed an answer to the DAL's cross-claim wherein he denied that he negligently operated his vehicle, and thus should not be made to indemnify the DAL. Mr. Crane also filed a second cross-claim against the DAL to recover for the injuries he sustained in the accident, wherein he alleged that the decedent caused his injuries by operating his vehicle in a negligent manner. On December 9, 1994, the DAL filed an answer to Mr. Crane's cross-claim for indemnification, wherein he stated he was without knowledge of the truth or falsity of Mr. Crane's allegations. On May 30, 1995, the DAL filed a reply to Mr. Crane's cross-claim for personal injuries wherein he denied that he was negligent in operating his vehicle on November 24, 1993.
On May 2, 1996, the case went to trial. At the close of Mrs. Crane's evidence, the DAL and Mr. Crane made motions for directed verdicts which the court sustained. Mr. Crane then introduced evidence on his cross-claim for personal injuries against the DAL. At the close of Mr. Crane's evidence, the DAL made a motion for a directed verdict as to Mr. Crane's cross-claim for personal injuries, which the court also sustained. The record reflects that neither Mr. or Mrs. Crane filed a motion for a new trial.
This appeal follows.
Rule 78.07 requires that where a directed verdict is granted in a jury-tried case, any contention that the verdict was erroneously directed must be raised in a motion for new trial to be preserved for appellate review. R.E. Denton, Inc. v. Spelman Memorial Hosp., 784 S.W.2d 810, 813 (Mo.App.1990); Brouk v. Brueggeate, 849 S.W.2d 699, 702 (Mo.App.1993). Because the record here reflects that neither Mr. or Mrs. Crane filed a motion for new trial, their claims that the trial court erred in directing verdicts against them were not preserved for appeal. However, Rule 84.13(c) provides that
[p]lain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.
Thus, we review here for plain error only.
In an appeal challenging a directed verdict in favor of a defendant, we review to determine whether a submissible case was made by the plaintiff. Mathis, 952 S.W.2d at 365. In determining whether a submissible case is made, we view the evidence and all reasonable inferences therefrom in the light most favorable to the claimant's case and disregard all evidence to the contrary. Id. Each and every element essential to establish the liability of a defendant must be supported by substantial evidence. Id. at 366. In this regard, substantial evidence is competent evidence from which a trier of fact can reasonably decide the case. Id. "Liability cannot rest upon guesswork, conjecture, or speculation beyond inferences that can reasonably decide the case." Id. (quoting Garrett v. Overland Garage & Parts, Inc., 882 S.W.2d 188, 191 (Mo.App.1994)). And, if one or more of the elements of a cause of action are not supported by substantial evidence, a directed verdict is proper. Id. However, a directed verdict is a drastic action and should only be granted if reasonable persons could not differ as to the outcome of the case. Gamble v. Bost, 901 S.W.2d 182, 185 (Mo.App.1995). If a claimant makes a submissible case on any theory pleaded, it would be plain error affecting substantial rights resulting in a manifest injustice or a miscarriage of justice for the court to direct a verdict against him or her. Trimble v. Sipes, 506 S.W.2d 353, 356 (Mo.banc 1974); R.E. Denton, Inc., 784 S.W.2d at 813; Meyer v. Thornhill, 879 S.W.2d 786, 787 (Mo.App.1994).
In her first point, Mrs. Crane alleges that the trial court erred in granting the DAL's motion for a directed verdict on her personal injury claim against him because she made a submissible case of negligence. For her personal injury claim against the DAL, Mrs. Crane alleged in her petition that the decedent was negligent in four respects: (1) that his vehicle was on the wrong side of the road; (2) that his vehicle was stopped in a lane reserved for moving traffic; (3) that he drove his vehicle at a speed too fast for conditions; and (4) that he failed to adequately warn Mr. Crane or others that his vehicle was stopped on and was obstructing the highway. Thus, the issue for us to decide is whether Mrs. Crane made a submissible case of negligence against the DAL on any of the four bases asserted in her petition. Meyer, 879 S.W.2d at 787.
In order to have made a submissible case of negligence as to the DAL, Mrs. Crane must have established with substantial evidence that: (1)...
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