Ensor v. Hodgeson, 41534

• Decision Date: 10 March 1981
• Docket Number: No. 41534,41534
• Citation: 615 S.W.2d 519
• Parties: George ENSOR and Katherine Ensor, Plaintiffs-Appellants, v. Penneye HODGESON, Cycle City Engineering Corp. and Kawasaki Motors Corp., U. S. A., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 519

615 S.W.2d 519

George ENSOR and Katherine Ensor, Plaintiffs-Appellants, v. Penneye HODGESON, Cycle City Engineering Corp. and Kawasaki Motors Corp., U. S. A., Defendants-Respondents.

No. 41534.

Missouri Court of Appeals, Eastern District, Division Two.

March 10, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 24, 1981.

Joseph B. Dickerson, Jr., St. Louis, for plaintiffs-appellants.

Paul S. Brown, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for defendant-respondent Penneye Hodgeson.

Godfrey, Vandover & Burns, Inc., Samuel T. Vandover, St. Louis, for defendant-respondent Cycle City.

GUNN, Judge.

Plaintiffs, parents of deceased Christopher Ensor, appeal from a jury verdict for all defendants in this wrongful death action. Plaintiffs' minor son was operating a Kawasaki motorcycle purchased from defendant Cycle City when he was struck from the rear by an automobile driven by defendant Hodgeson. Negligence was alleged against Hodgeson; recovery was sought against Cycle City and Kawasaki on strict liability grounds for a defect in the motorcycle. We reverse the judgment for Hodgeson, and affirm the verdicts in favor of Cycle City and Kawasaki.

The accident occurred on April 27, 1972, at about 6 p. m., in the northbound lanes of Interstate 55 near the Carondelet Boulevard exit in the City of St. Louis. I-55 is a divided highway with three lanes for northbound traffic at that point. Chris Ensor was operating his Kawasaki motorcycle in the middle lane of the northbound lanes. Mrs. Hodgeson recalled that Ensor passed her automobile about two miles south of where the accident occurred; she was then in the right hand lane and Ensor was in the middle lane as he passed. Ensor proceeded out of her view. Mrs. Hodgeson subsequently changed lanes to the middle lane to pass slower traffic. The next time she recalled seeing Ensor was when she was about 150 feet behind him. The motorcycle appeared to be moving and the rider was leaning forward over the bike. However, she realized that the bike seemed to be stopped, although she at no time observed a brake light and did not recall Ensor having his feet on the ground. She applied her brakes and attempted to swerve to the left but skidded into the back of the motorcycle, knocking Ensor over the handlebars. The road was dry, visibility was good, and Mrs. Hodgeson testified that there was nothing obstructing her view. I-55 is straight and flat for a distance considerably greater than 150 feet prior to the point of impact.

Arthur E. Bush was the only other witness to the accident to testify. He stated that he was driving northbound in the right hand lane and that Ensor's motorcycle passed him in the center lane. He further testified that as it passed, the motorcycle engine was "purring" smoothly but when Ensor was about 500 to 700 feet in front of Bush, he heard the engine "cut out". Bush saw Ensor attempt to kick start the motorcycle while it continued to coast along. He said the motorcycle slowed to a very slow speed, but no brake light came on. As Bush, who had also slowed down, got closer to the motorcycle, he heard an automobile approaching from behind in the center lane. He heard the screeching of tires as the automobile Mrs. Hodgeson's vehicle came along side him and then struck the rear of the motorcycle. The collision occurred about ten feet in front of Bush to his left, and he testified that the motorcycle was still rolling slowly just before impact. He further testified that there were no vehicles in the far left lane to prevent Mrs. Hodgeson from steering or swerving into that lane to avoid Ensor.

Plaintiffs testified that their son had informed them just before his departure from home shortly before the accident that a problem with his motorcycle had been solved by Cycle City. He told them that his cycle had been "cutting out" but that Cycle City believed it was caused by his heavy key ring turning the ignition switch to the "off" position; that removing keys was the solution.

Plaintiffs' petition against Kawasaki and Cycle City alleged that paint had chipped off the inside of the motorcycle's gas tank and had clogged the fuel system, causing the motorcycle to "cut out" and that the paint chipping was a result of a defective design.

Jury verdict was in favor of all defendants.

Plaintiffs allege numerous instances of error. They argue that the court erred in defining "negligence" with regard to the minor decedent as failure to use the highest care, instead of giving MAI 11.04, defining the negligence of a minor. They complain of various flaws with Instruction Number 10 submitted by defendant Hodgeson on decedent's contributory negligence. They assert the trial court erred when it sustained Hodgeson's counsel's objection to a certain portion of plaintiffs' closing argument. Plaintiffs argue that there was insufficient evidence to support the contributory fault instruction submitted by Kawasaki and Cycle City. Further error is charged in the admission into evidence of certain photographs of decedent's motorcycle. And finally, plaintiffs insist they should receive a new trial because of an allegedly prejudicial remark made by counsel for Cycle City while questioning one of plaintiffs' witnesses.

The trial court properly gave MAI 11.03 with regard to the negligence of the minor decedent instead of MAI 11.04, which defines a minor's standard of care. Although the decedent was only sixteen years old at the time of the occurrence, he is held to the "highest degree of care" standard imposed on all motor vehicle operators. § 304.010, RSMo 1978; Hewitt v. Masters, 386 S.W.2d 9 (Mo.1964).

Defendant Hodgeson submitted the issue of decedent's contributory negligence by Instruction Number 10 as follows:

Your verdict must be for the Defendant, Penneye Hodgeson on Plaintiffs' claim for damages against her if you believe:

First, either:

Chris Ensor failed to keep a careful lookout, or

Chris Ensor stopped his motorcycle in a lane reserved for moving traffic, or

Chris Ensor suddenly slowed his motorcycle on the highway without giving an adequate and timely warning of his intention to slow, or

Chris Ensor allowed his stalled motorcycle to remain on the traveled portion of the highway and

Second, Chris Ensor, in any one or more of the respects submitted in the paragraph First, was thereby negligent, and

Third, such negligence of Chris Ensor directly caused or directly contributed to cause any damage plaintiffs may have sustained.

Plaintiffs contend that there was insufficient evidence to support three of the four disjunctive submissions of contributory negligence. The only submission plaintiffs do not challenge is "failed to keep a careful lookout". In determining whether there was evidence to support each of the submissions of contributory negligence, we view the evidence in the light most favorable to defendant Hodgeson unless it conflicts with her own. Butler v. Hicks, 554 S.W.2d 449 (Mo.App.1977).

In asserting that the motorcycle was not stopped, plaintiffs cite Mr. Bush's testimony that it was rolling at time of impact. They argue that the only evidence of stopping came from defendant Hodgeson and that her testimony was so equivocal in that regard as to be insufficient to support the stopping instruction.

Plaintiffs isolate one of Hodgeson's answers during cross-examination to illustrate that she was uncertain whether she thought the motorcycle was stopped:

Q. What I'm trying to find out is what is it that you saw that made you think it was stopped.

A. I really don't know. I just there was nothing there. It seemed like he was stopped. When I realized that, I did what I said previously.

The foregoing answer would indicate uncertainty as to whether the motorcycle had stopped. However, this testimony viewed in a favorable light and with Mrs. Hodgeson's other testimony reflecting a firm belief that the motorcycle had stopped provided sufficient evidentiary basis to submit "Chris Ensor stopped his motorcycle in a lane reserved for moving traffic."

Plaintiffs contend that the evidence was insufficient to submit the proposition that "Chris Ensor suddenly slowed his motorcycle on the highway without giving adequate and timely warning of his intention to slow." Plaintiffs are correct in this contention. There was no evidence that the motorcycle suddenly slowed. Mr. Bush testified that after its engine "cut out", the motorcycle continued to coast along. At no time did anyone see a brake light come on. Neither did Mrs. Hodgeson give any indication that there had been a sudden slowing of the motorcycle. She testified that though her view was unobstructed she did not consider the motorcycle until she saw it stopped about 150 feet from her toolate for her to avoid the collision. The record is destitute of evidence that the motorcycle suddenly slowed.

It is a fundamental precept that when an 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. Miller v. Scholl, 594 S.W.2d 324 (Mo.App.1980); Bunch v. McMillian, 568 S.W.2d 809, 811 (Mo.App.1978). The word "suddenly" is the key word in this disjunctive clause, taken from MAI 17.11, see Koehler v. Schott, 426 S.W.2d 677, 680 (Mo.App.1968), and submitting it to the jury without factual basis in the record was prejudicial error requiring reversal as to defendant Hodgeson.

We will discuss the remainder of the points raised by plaintiffs relating to defendant Hodgeson, as they may recur upon retrial.

Plaintiffs complain of the final disjunctive submission "Chris Ensor allowed his stalled motorcycle to remain in the traveled portion of the Highway." They argue that there is no evidence for this submission, that it leaves out the word "standing" that appeared in the instruction approved in Hofstra v. Schriber, 475 S.W.2d 44 (Mo.1972), and that...