Finninger v. Johnson, 49053

• Decision Date: 04 June 1985
• Docket Number: No. 49053,49053
• Citation: Finninger v. Johnson, 692 S.W.2d 390 (Mo. App. 1985)
• Parties: Cleo FINNINGER and Charles Finninger, Appellants, v. Jake M. JOHNSON, Respondent.
• Court: Missouri Court of Appeals

Page 390

692 S.W.2d 390

Cleo FINNINGER and Charles Finninger, Appellants, v.Jake M. JOHNSON, Respondent.

No. 49053.

Missouri Court of Appeals,

Eastern District,

Division Five.

June 4, 1985.

Neil J. Bruntrager, St. Louis, for appellants.

Joan M. Tanner, Clayton, for respondent.

DONALD L. MANFORD, Special Judge.

This is a civil action seeking recovery of damages for personal injury arising from the alleged negligent operation of a motor vehicle.The judgment is reversed and the cause remanded.

A sole point is presented, which in summary charges that the trial court erred in the submission of two instructions because neither was supported by the evidence, and said instructions therefore erroneously placed the issue of comparative fault before the jury.

There being no challenge to the sufficiency of the evidence, a summary recital of the pertinent facts suffices.

On April 9, 1977, Cleo Finninger(now appellant, plaintiff at trial) was operating her motor vehicle westbound on Chambers Road in St. Louis County.She stopped her vehicle for a stoplight at the intersection of Chambers Road and New Halls Ferry, but some eight or nine car lengths from the intersection.Her vehicle was in the inside or left turn lane.Respondent, Jake Johnson(defendant at trial) stopped his motor vehicle directly behind appellant's vehicle.On the southside of Chambers Road, across from appellant's vehicle, was the driveway to a fruit stand.Respondent backed his vehicle and proceeded to make a left turn, across the double center line of Chambers Road.At the same moment, appellant commenced to turn her vehicle left.The vehicles collided, with respondent's vehicle striking the front bumper of appellant's vehicle.Respondent's vehicle continued to accelerate, pushing appellant's vehicle forward.

AppellantCleo Finninger sought medical attention relative to soreness involving her back and shoulders.In January, 1978, she complained to her doctor of pain in her right hip.Subsequent diagnosis was that she had bursitis in her hips.The deposition of her doctor was read to the jury and her doctor stated that her bursitis was caused by the previous collision.Dr. Raymond Frederick, on behalf of respondent, examined Cleo Finninger and testified that her bursitis was not caused by the collision.

Appellant, Charles Finninger, husband of Cleo Finninger, sought damages for loss of consortium.

Respondent submitted two instructions (set forth infra) on the issue of contributory negligence of appellantCleo Finninger, which alleged her failure to keep a lookout.The jury returned its verdict, finding in favor of Cleo Finninger in the sum of $2,250.00.The jury assessed 10% of the fault against appellantCleo Finninger.The jury also found in favor of appellantCharles Finninger on his consortium claim, but awarded him zero damages.

The now challenged instructions read as follows:

INSTRUCTIONNO. 9

You must assess a percentage of fault to plaintiffCleo Finninger if you believe:

First, plaintiffCleo Finninger failed to keep a careful lookout,

and

Second, plaintiffCleo Finninger was thereby negligent, and

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

M.A.I. 32.01 Modified/17.05--submitted by defendant and given.

INSTRUCTIONNO. 14

If you have assessed a percentage of fault to plaintiffCleo Finninger, you must assess the same percentage to plaintiffCharles Finninger, if you believe:

First, plaintiffCleo Finninger failed to keep a careful lookout,

and

Second, plaintiffCleo Finninger was thereby negligent,

and

Third, such negligence of plaintiffCleo Finninger directly caused or directly contributed to cause any damage plaintiffCharles Finninger may have sustained.

M.A.I. 32.01 Modified/17.05--submitted by defendant and given.

On this appeal, appellants ask the question: Is the jury to be instructed on comparative negligence in every negligence suit?This question, being one of first impression in Missouri causes this court to also include consideration of decisions from other jurisdictions in deriving an answer.It has been held that comparative negligence statutes have 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.James v. South Central Stages, 160 F.Supp. 288(W.D.Ark.1958).See alsoWagner v. International Harvester Co., 611 F.2d 224, 232(8th Cir.1979).It must follow that the same rule applies in Missouri which has adopted comparative negligence by court decision, and the answer to appellants' question is no.

Under our own law, it is prejudicial error to submit an instruction on contributory negligence where there is no substantial evidence to support it.Herberer v. Duncan, 449 S.W.2d 561, 564(Mo. banc 1970).That same rule has been applied with respect to the negligence of a plaintiff in a comparative negligence context.Chrysler Corp. v. Todorovich, 580 P.2d 1123, 1135(Wyo.1978).

In response, respondent continues his charge, against appellantCleo Finninger, of contributory negligence for failure to keep a proper lookout.¹

Appellants charge that respondent must have shown conclusively that appellant's (Cleo's) failure to keep a proper lookout was the proximate cause of the accident.This is not a correct assertion.The duty of a defendant is proof of the failure to keep a proper lookout by a preponderance of the evidence.There must be substantial evidence and a mere scintilla of evidence, or speculative deductions and conclusions will not suffice.61 C.J.S.Motor Vehicles§ 520(1), p. 734(1970).

Generally, it is impossible for a party to produce direct evidence that the other party was not looking.Watterson v. Portas, 466 S.W.2d 129, 131(Mo.App.1971).Thus, proof can be made circumstantially.In order to warrant or justify the submission of the failure to keep a proper lookout, it must be shown by one party that the other party could have seen the danger of collision in time to have taken evasive action.Watterson, supra.

In determining whether instructions that are submitted were supported by sufficient evidence, the evidence must be viewed in a light most favorable to the party offering the instruction.Commerford v. Kreitler, 462 S.W.2d 726(Mo.1971).

It is respondent's position herein that the following facts establish sufficient evidence for the submission of his contributory negligence instruction.Respondent was stopped behind appellant's vehicle.Respondent proceeded to make a left turn and appellant pulled to her left and appellant's vehicle struck respondent's vehicle.Respondent saw appellant by looking over his shoulder, and respondent could see appellant's vehicle when the two vehicles made contact.Respondent then concludes that if appellant had looked, appellant could have refrained from making a left turn.

In review of the evidence by this court, it must be concluded, even in reviewing the evidence most favorable to respondent, that respondent did not adduce sufficient evidence to support the submission of the instruction.The evidence reveals that appellantCleo Finninger was stopped in the left turn lane facing west.She stated that she first saw respondent's vehicle when he was on her left.To the left of appellant's vehicle were two eastbound traffic lanes.Respondent testified that he saw appellant's vehicle before the collision.Respondent testified that...