George v. Howard Const. Co.

• Decision Date: 02 September 1980
• Docket Number: No. KCD 30499.,KCD 30499.
• Parties: William GEORGE, Kristna George and Amanda George, Plaintiffs-Respondents, v. HOWARD CONSTRUCTION COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

604 S.W.2d 685

William GEORGE, Kristna George and Amanda George, Plaintiffs-Respondents, v. HOWARD CONSTRUCTION COMPANY, Defendant-Appellant.

No. KCD 30499.

Missouri Court of Appeals, Western District.

August 4, 1980.

Motion for Rehearing and/or Transfer Denied September 2, 1980.

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COPYRIGHT MATERIAL OMITTED

Roy A. Larson, Thomas R. Larson, Morris, Larson, King, Stamper & Bold, Kansas City, for defendant-appellant.

William J. Cason, Michael X. Edgett, Fred R. Bunch, Clinton, for plaintiffs-respondents.

Before CLARK, P. J., and SOMERVILLE and TURNAGE, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 2, 1980.

SOMERVILLE, Judge.

William George, joined by the surviving minor children born of his marriage to Barbara Frances George (decedent), filed suit against Howard Construction Company (Howard) for the wrongful death of the wife and mother who was killed on May 20, 1977, in a head-on collision with an oncoming automobile on Missouri State Highway 52 at a point approximately a mile and a half east of Calhoun, Missouri.

Trial of the case commenced on June 12, 1978, and on June 13, 1978, nine jurors returned a verdict in favor of plaintiffs and against Howard and assessed damages in the amount of $125,000.00. Judgment was entered accordingly and Howard appealed after an unsuccessful motion for judgment in accordance with its motion for a directed verdict at the close of all the evidence or, in the alternative, for a new trial.

A wide ranging array of issues has been raised by Howard on appeal: (1) the trial court erred in failing to sustain Howard's motion for a directed verdict at the close of all the evidence because as a matter of law its alleged failure to warn decedent that a "soft and low" shoulder adjacent to her side of the traveled portion of the highway exposed her to danger was not the proximate cause of her fatal injuries; (2) the trial court erred in failing to sustain Howard's motion for a directed verdict at the close of all the evidence because as a matter of law it had no duty to warn decedent since she knew and was aware of the alleged dangerous condition charged; (3) the trial court erred in failing to sustain Howard's motion for a directed verdict at the close of all the evidence because decedent was guilty of contributory negligence as a matter of law; (4) the trial court erred in giving Instruction No. II, plaintiffs' verdict director, because said instruction was prejudicially erroneous in that it deviated from an applicable MAI instruction by interpolating the word "adequately" between the words "to warn", and, furthermore, because the "tail" negating Howard's instruction submitting decedent's contributory negligence instruction was not set off in a separate paragraph; (5) the trial court abused its discretion in permitting plaintiffs' counsel on voir dire to inquire as to whether any members of the jury panel were policyholders of Howard's insurance carrier since it was a stock company; and (6) the trial court's refusal to declare a mistrial by reason of plaintiffs' counsel's reference on voir dire to Howard's insurance carrier as a "liability insurance company", and an untimely approach to the bench by plaintiffs' counsel, constituted an abuse of discretion.

The facts will be set forth in conformity with certain basic principles brought into play by reason of the tenor of points (1), (2) and (3). First, appellate review of the trial court's denial of Howard's motion for a directed verdict at the close of all the evidence requires looking at all the evidence, and all reasonable inferences therefrom, in the light most favorable to plaintiffs, giving them the benefit of all favorable evidence which is not contrary to their own testimony, and disregarding any unfavorable evidence of Howard. Willis v. Wabash Railroad Company, 284 S.W.2d 503, 506 (Mo.1955); and Carter v. Boys' Club of Greater Kansas City, 552 S.W.2d 327, 329 (Mo.App.1977). Second, as clearly put in Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 95 (banc 1941), appellate review parallels the charge or charges of negligence finally submitted to the jury, notwithstanding the fact that others may have been pleaded and evidence existed to justify their submission: "When the defendant in his motion for new trial and on appeal renews his exceptions to the overruling of his demurrer to the evidence, it must be understood by everyone that the complaint is directed to the assignments still in the case. Whether the others were supported by substantial evidence has become a moot question. The plaintiff has waived his rights under them. Appellate courts should not be required to search the whole record to find out whether the demurrer was properly overruled because there was evidence sustaining some assignment afterwards discarded. Neither should they be compelled to affirm the judgment on such purely technical grounds when there is no evidence to support it." In conjunction herewith, Instruction No. II, plaintiffs' verdict director, more about which will be said later, reads as follows:

"INSTRUCTION NO. II

Your verdict must be for plaintiffs if you believe:

First, plaintiff William George was the lawful husband of Barbara Frances George at the time of her death and that Kristina George and Amanda George were her only children at the time of her death, and

Second, defendant created a soft and low shoulder of the highway close to the highway, and

Third, that such soft and low shoulder of the highway was so close to the public highway that persons using the highway in the exercise of the highest degree of care were exposed to a danger of driving into the soft and low shoulder, and

Fourth, defendant knew or should have known of such danger, and

Fifth, defendant failed to use ordinary care to adequately warn of it, and

Sixth, as a direct result of such failure Barbara Frances George died, unless you believe plaintiffs are not entitled to recover by reason of Instruction Number V."

Third, appellate determination of whether decedent was guilty of contributory negligence as a matter of law as charged by Howard entails looking at the evidence in the same context it is looked at in conjunction with points (1) and (2). Zumault v. Wabash Railroad Company, 302 S.W.2d 861, 863 (Mo.1957); and Carter v. Boys' Club of Greater Kansas City supra.

With the above perspective of the evidence in mind, the following statement of facts is justified. Between April 5, 1977, and July 20, 1977, Howard, pursuant to a contract with the State of Missouri, was engaged in repairing Missouri State Highway 52 between Clinton and Windsor, Missouri. Calhoun, Missouri, is located between the two. The project consisted of applying an asphalt overlay over the old road surface and stabilizing and shaping the shoulders. The construction proceeded in sequential stages throughout various station points. First, a road grader was used to scrape the grass and some of the dirt from the shoulders adjacent to the traveled portion of the highway; second, an asphalt overlay was then applied to the old road surface; third, a motor grader back filled the loose dirt on the shoulder along the edges of the road surface and compacted it with one of its rear wheels; and fourth, a motor grader regraded the shoulders and gravel was placed on them to build them up to the level of the new road surface.

On Wednesday, May 18, 1977, two days before the fatal accident, the first three stages of construction had been completed by Howard in the general area east of Calhoun, Missouri. However, the fourth and final stage had not been undertaken and Howard had moved its men and equipment to another station point west of Calhoun, Missouri.

The fatal accident occurred at approximately 7:45 A.M. on Friday, May 20, 1977. In the area where the accident occurred, Missouri State Highway 52, with reference to traffic proceeding in an easterly direction as was the decedent, curves rather sharply to the left. It is a "banked" curve and the right shoulder is on the high side of the curve. On Monday, May 16, 1977, four days before the fatal accident, it rained causing a "clay wash" to seep across the traveled portion of the highway in the area of the curve. It also rained at approximately 5:00 A.M. on the morning of the fatal accident, again causing a "clay wash" to seep across the traveled portion of the highway in the area of the curve. The "clay washes" which seeped across the traveled portion of the highway on the occasions mentioned occurred after the right shoulder had been disrupted and torn up by Howard during the construction process. The color of the "clay washes" was such that they were virtually indiscernible to the naked eye and the drivers of motor vehicles first became aware of them after they got onto them. Upon doing so, they could be "felt" because they were "slippery".

On the morning in question the right shoulder on the curve, with reference to the level of the traveled portion of the highway as built up by the asphalt overlay, varied in depth immediately adjacent to the traveled portion of the highway from approximately six inches to one and a half inches. The right shoulder was also "very soft" at the time. The real extent and nature of the low, soft condition of the right shoulder in the area of the curve was not readily discernible to persons driving along in an automobile. Its true condition was ascertainable by persons on foot at the site. Howard's asphalt plant and field headquarters were situated approximately one hundred and fifty yards from the curve and complaints had been made to Howard's supervisory personnel about the lack of warning signs and the fact that dirt was not being pulled up to prevent low shoulders.

On the day of the fatal accident there were no signs of any kind posted on Missouri State Highway 52 in the area or vicinity of the curve. More particularly there were no signs of any kind...