First Nat. Bank of Fort Smith v. Kansas City Southern Ry. Co.

• Decision Date: 21 September 1993
• Docket Number: Nos. WD,s. WD
• Citation: 865 S.W.2d 719
• Parties: FIRST NATIONAL BANK OF FORT SMITH, Conservator of the Estate of Arthur Santos Felix, Respondent-Appellant, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant-Respondent. 46969, WD 46986.
• Court: Missouri Court of Appeals

Page 719

865 S.W.2d 719

FIRST NATIONAL BANK OF FORT SMITH, Conservator of the Estate of Arthur Santos Felix, Respondent-Appellant, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant-Respondent.

Nos. WD 46969, WD 46986.

Missouri Court of Appeals Western District.

Sept. 21, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 2, 1993.

Application to Transfer Denied Dec. 21, 1993.

Steven B. Garner, Springfield, for respondent-appellant.

Harlan D. Burkhead, Kansas City, for appellant-respondent.

Before FENNER, P.J., and SPINDEN and SMART, JJ.

SPINDEN, Judge.

Arthur Santos Felix ¹ sued Kansas City Southern Railway Company (KCS) for the injuries he suffered when a KCS vehicle ran over him on KCS tracks near Joplin. A jury found that Felix suffered $4.5 million in damages but assessed him with 15 percent of the fault. KCS appeals. Felix cross-appeals, claiming that the trial court erred in directing a verdict against him on his claim for punitive damages against KCS. We reverse and remand for a new trial.

The accident happened on February 26, 1989, while Felix and his girlfriend's two children were looking for pennies. They had put the pennies on railroad tracks the previous day hoping that a train would flatten them. While Felix looked to the south, a hy-rail truck ² driven by KCS employee Gary Helton ³ came from the north and hit Felix. Helton was not watching the tracks at the time.

The accident occurred just north of Joplin about one-fourth of a mile south of a public crossing known as the VFW crossing and about one-fourth of a mile north of the Turkey Creek trestle. K-Wood Trailer Park was east of the railroad tracks. Other residences were in the immediate vicinity. The hy-rail hit Felix just south of a foot path which ran east-west across the tracks parallel to power lines.

Helton was inspecting tracks and right-of-ways for defects. As he drove down the tracks into a curve at 25 to 30 miles an hour, he looked down to write an entry in the records he was making. While Helton wrote, the hy-rail traveled through the curve and went an additional 518 feet before hitting Felix. Had Helton been watching, he could have seen Felix approximately 500 feet--about 12 seconds--before hitting him.

Felix was treated for 47 days in a hospital for multiple, severe injuries. He presented evidence of lasting after-effects from the accident. His medical expenses through commencement of the trial totalled $139,842.30.

I. PUNITIVE DAMAGES

Felix's only point on appeal is that the trial court erred in directing a verdict against him on his claim for punitive damages against KCS. He asserts that he presented substantial evidence from which a reasonable juror could have found that Helton's conduct ⁴ showed complete indifference to, or conscious disregard for, the safety of others. We agree.

A. Preservation of the Punitive Damages Issue

KCS contends that because Felix did not object to its motion for directed verdict, he did not preserve it for our review. "It is well settled that under Rules 78.07 and 78.09 to preserve an issue for appellate review of any ruling of the trial court, the objecting party must make definite objections either at the trial or ⁵ in the motion for a new trial." Ingle v. Illinois Central Gulf Railroad Company, 608 S.W.2d 76, 79 (Mo.App.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341 (1981). Felix objected to the directed verdict in his motion for new trial. He preserved the issue for our review.

KCS also contends that Felix waived his right to appellate review by not asking the trial court to reconsider its decision at the close of all the evidence. We disagree. As this court's Eastern District stated, in Koerber v. Alendo Building Company, 846 S.W.2d 729, 730 (Mo.App.1992) (citations omitted):

No Missouri Supreme Court Rule sanctions the use of a motion for reconsideration.... [A] "motion for reconsideration [has] no legal effect as no Missouri rule provides for such a motion." ... However, in order that an appellant not be denied substantive review of an appeal, this district and other districts have treated a motion for reconsideration as a motion for new trial if timely filed.

B. The Standard for Review

Granting a motion for directed verdict is a drastic action, and a trial court should do so only " 'when all the evidence and the reasonable inferences to be drawn therefrom are so strongly against the plaintiff that there is no room for reasonable minds to differ.' " Schroeder v. Lester E. Cox Medical Center, Inc., 833 S.W.2d 411, 414 (Mo.App.1992) (quoting Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698, 700 (Mo.1969)) (emphasis omitted). In reviewing whether Felix made a submissible case on punitive damages, we view the evidence in the light most favorable to him and give him the benefit of all reasonable inferences to be drawn from the evidence and disregard all contrary inferences. Bostic v. Bill Dillard Shows, Inc., 828 S.W.2d 922, 925 (Mo.App.1992).

The standard for determining whether Felix made a submissible punitive damages claim is whether a reasonable juror could have found that KCS' conduct showed complete indifference to or a conscious disregard for the safety of others. Sharp v. Robberson, 495 S.W.2d 394 (Mo. banc 1973). " '[T]he person doing the act or failing to act must be conscious of his conduct, and, though having no specific intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury.' " Id. at 397 (quoting Reel v. Consolidated Investment Company, 236 S.W. 43 (Mo.1921)). The court has defined conscious disregard:

"The actor's conduct is in reckless disregard for the safety of another if he intentionally does an act or fails to do an act which it is his duty to the others to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the others, but also involves a high degree of probability that substantial harm will result to him."

Id. at 398 (citations omitted).

C. Basis for Felix's Claim for Punitive Damages

Felix contends that Helton's conduct showed complete indifference to, or a conscious disregard for, the safety of others. He points to these indicators:

Helton knowingly violated a KCS safety rule requiring that he keep a constant lookout for and be prepared to stop for people who may be on the track.

Helton knowingly violated a written KCS speed rule requiring him to drive at a speed that would allow him to stop for obstructions, but in no case more than 20 miles per hour.

Helton knowingly violated KCS' safety rules designed to warn the public of the hy-rail's approach by not turning on the truck's headlights and warning lights.

Notwithstanding the rules violations, Helton did not watch where he was going although he was moving through a residential area with heavy pedestrian traffic.

KCS responds first by arguing either that (1) Felix did not present sufficient evidence to prove the matters or (2) the trial court excluded the evidence and Felix has not preserved the issue for our review. Alternatively, KCS argues that the matters, even if proven, were not sufficient to make a submissible case.

D. Specific Points Preserved

In reviewing Felix's claim for punitive damages, we must restrict our consideration to the theories pleaded and preserved in Felix's motion for new trial. Plumlee v. Ramsay Dry Goods Company, 451 S.W.2d 603, 605-06 (Mo.App.1970). Felix's motion for new trial asserted that the basis for punitive damages was Helton's violation of rules requiring a careful lookout and being prepared to stop for obstructions, his violation of speed rules, and his failure to watch where he was going although he was aware of heavy pedestrian traffic in the area.

1. Headlights and Warning Lights Rules

Felix asserts that he preserved the issue of the headlights and warning lights rule by proffering the deposition testimony of Kenneth Smith, KCS' superintendent of rules, concerning the rule. "It is settled law that where a trial judge has erroneously excluded evidence but the same is preserved in the record by proffer and thereafter a verdict is directed for the defendant, this court on appeal may consider the entire record including the evidence erroneously excluded[.]" Look v. French, 346 Mo. 972, 981, 144 S.W.2d 128, 132 (1940). We find no offer of proof or ruling by the trial court on the matter. Felix did not claim in his motion for new trial that the trial court erred in excluding evidence of the rule. Felix directs us to the supplemental legal file and transcript pages, but those references did not concern an offer of proof regarding Smith's testimony about the rule. A document entitled "Plaintiff's Offers From the Deposition of Kenneth G. Smith" is in the supplemental legal file. It contains page and line references to Smith's deposition. Following this document are pages from Smith's deposition stamped "TESTIMONY OFFERED, BUT REFUSED." We cannot find, however, a ruling or order of the court refusing this testimony either in the transcript or legal file; nor do we find any objection in the record or in Felix's motion for new trial that the trial court erroneously excluded the evidence or an offer of proof by Felix. Providing us a complete record is the party's responsibility. Rule 81.12. We conclude that Felix did not preserve the issue for our review.

2. Pedestrian Traffic

Concerning pedestrian traffic, Felix's motion said, "Gary Helton admitted having actual knowledge of pedestrian activity two to three times per week within a quarter of a mile of the accident site, but knowingly operated his vehicle without looking ahead[.]" KCS asserts that by focusing in his motion on Helton's testimony concerning his actual knowledge of pedestrian traffic a quarter of a mile from the accident...