Hacker v. Quinn Concrete Co., Inc.

• Decision Date: 25 May 1993
• Docket Number: No. WD,WD
• Citation: 857 S.W.2d 402
• Parties: Gary Dean HACKER, Respondent, v. QUINN CONCRETE CO., INC., Cleo L. Chadwrick and Joseph A. Ellebracht, Appellants, v. Juanita TRUSSELL, Mark Nuelle and Dale Hilgedick, Respondents. 45676.
• Court: Missouri Court of Appeals

Page 402

857 S.W.2d 402

Gary Dean HACKER, Respondent, v. QUINN CONCRETE CO., INC., Cleo L. Chadwrick and Joseph A.

Ellebracht, Appellants, v. Juanita TRUSSELL, Mark Nuelle and Dale Hilgedick, Respondents.

No. WD 45676.

Missouri Court of Appeals Western District.

May 25, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 29, 1993.

Application to Transfer Denied Aug. 17, 1993.

Eric T. Swanson, Theresa S. Hall, Kansas City, for appellants.

G. Michael Fatall, Kansas City, for respondents.

Before KENNEDY, P.J., and BERREY and SPINDEN, JJ.

BERREY, Judge.

This lawsuit arose from an automobile accident that occurred at approximately 1:00 p.m. on January 26, 1990, near the intersection of U.S. Highway 65 and Route WW. This is a "T" intersection commonly known as the Tina junction. Route WW goes east ¹ from Highway 65, which runs north and south, to the town of Tina, approximately two miles from the junction. Tina junction sits in a low spot half way between the crests of two hills. The distance from the junction to each crest is 330 feet, as measured by the highway patrol officer who investigated the accident.

Prior to the accident, appellant Cleo Chadwrick, an employee of appellant Quinn Concrete Company, Inc. ("Quinn"), was driving a tractor-trailer truck northbound on Highway 65 when a rock struck and shattered the windshield. Unable to see through the windshield, Chadwrick pulled onto the shoulder in front of a Conoco station just south of Tina junction. From the station, Chadwrick telephoned his employer and asked him to send a different tractor. Appellant Joseph Ellebracht brought the replacement tractor and he and Chadwrick traded tractors. In order to make the switch, the men moved the truck onto Route WW and parked it across the road, parallel to Highway 65, completely blocking Route WW. Chadwrick was hauling concrete forms and, therefore, to make the switch, the trailer needed to be on firm footing. Because of recent weather, the shoulder was soft and Chadwrick and Ellebracht determined the "dolly," used to support the trailer while they made the switch, might sink into the shoulder preventing the new tractor from backing under the trailer or, worse, causing the trailer to topple and spill the load.

According to testimony of witnesses, the truck was parked anywhere from four feet to twelve or fifteen feet east of Highway 65 and was there about fifteen minutes. Chadwrick and Ellebracht estimated the switch would take about five minutes. They activated the flashers on their tractors but did not place any warning devices on the roadway, either on Highway 65 or on Route WW. Both men testified that when the trailer is unhooked from the tractor, the trailer's flashers do not operate.

Melba and Lester Lee were in the first vehicle that attempted to turn onto Route WW. The Lees were northbound on Highway 65 and, as they approached the junction, determined that there was insufficient room on Route WW for them to get by the truck. They pulled their vehicle onto the shoulder of Highway 65 approximately 60 to 80 feet south of Route WW to wait. The Lees had been waiting between five and ten minutes when Juanita Trussell, also northbound on Highway 65, approached the intersection and attempted to turn onto Route WW.

As she approached the intersection, Trussell noticed the Lee vehicle and the tractor-trailer. The Lee vehicle was partially obstructing her view and Trussell was unaware that Route WW was completely blocked. She attempted to turn onto Route WW but was unable to complete the turn. When she came to a stop, one half of her automobile was on Route WW and the other half was on the traveled portion of Highway 65.

While driving north on Highway 65, Trussell had noticed two cars behind her. The car closest to her, which was being driven by Gary Hacker, was about one-fourth mile behind her. Within seconds of coming to a stop at the intersection, Trussell heard the squealing of tires from the Hacker vehicle behind her.

William Gutshall was in the car behind Hacker. Both men were going to their homes from college in Warrensburg. Gutshall had been following Hacker for several miles. Gutshall lost sight of Hacker as Hacker passed over the crest of the hill just south of the junction. When Gutshall cleared the crest, he saw that Hacker had hit his brakes and Hacker's car had begun to slide sideways down the hill in the northbound lane of Highway 65. Then Hacker's car suddenly crossed the center line and collided with a tractor-trailer driven by Mr. Nuelle, which was traveling south on Highway 65. Nuelle was hauling 70,000 to 80,000 pounds of seed corn for his employer Dale Hilgedick. Nuelle's truck was in the southbound lane at the time of the collision.

Hacker was ejected from his car upon impact. The impact then pushed his empty car back into the northbound lane where it collided with Gutshall's car. Both cars skidded several feet together down Highway 65, coming into contact with the Lees' vehicle. Gutshall received a cut but the Lees were not injured. Following the accident, Hacker was flown by helicopter to Research Medical Center in Kansas City. He sustained severe injuries to his head and the lower portion of his body. Although the seriousness and extent of Hacker's injuries are not part of this appeal we note that he spent 110 days in the hospital and underwent some 18 surgeries, multiple skin grafts, and rehabilitation and that his injuries were extremely painful and permanent in nature.

Hacker filed a lawsuit against Chadwrick, Ellebracht and Quinn. They in turn filed a third party petition against Trussell, Gutshall, Nuelle and Hilgedick. Gutshall was dismissed from the lawsuit prior to trial.

The cause was tried to a jury in the Carroll County Circuit Court, commencing on October 28, 1991. The plaintiff presented evidence for three days and rested. None of the defendants or third-party defendants called any witnesses. At the close of the evidence, defendants Chadwrick, Ellebracht and Quinn moved for directed verdict, which motion was denied. The trial court also denied third-party defendant Trussell's motion for directed verdict. It sustained third-party defendants Nuelle's and Hilgedick's motions for directed verdict.

The trial court then recessed from October 30, 1991, until November 13, 1991, at which time the trial resumed. At that time, the court read the instructions and the parties made their closing arguments to the jury. The jury returned a verdict that same day in which it assessed Hacker's damages at $2 million and apportioned fault at 90% to the defendants and 10% to Hacker. On the defendants' third-party claim against Trussell, the jury found in favor of Trussell. The defendants' motion for new trial was overruled and this appeal followed.

I.

As their first point on appeal, Chadwrick, Ellebracht and Quinn, appellants herein, allege that the trial court erred in directing a verdict in favor of third-party defendants Nuelle and Hilgedick because, viewing the evidence in the light most favorable to appellants, a question of fact remained for the jury to decide. Appellants assert that sufficient evidence existed from which the jury could have found that Nuelle failed to maintain a careful lookout and that his actions, under the conditions present, were negligent.

A directed verdict is appropriate only if, considering the facts most favorably to the non-moving party, reasonable minds could only find in favor of the moving party. Duvall v. Brenizer, 818 S.W.2d 332, 335 (Mo.App.1991). In its consideration of a motion for directed verdict, the trial court may consider reasonable inferences to be drawn from the facts presented. Id. A case should not, however, be submitted to a jury unless "each and every fact essential to liability is predicated on legal and substantial evidence." Id. (quoting Owens v. Union Elec. Co., 729 S.W.2d 248, 250 (Mo.App.1987)). A case may not be submitted to the jury unless substantial evidence exists tending to prove every element of the non-moving party's case and, in the final analysis, submissibility is a question of law. Bandag of Springfield, Inc. v. Bandag, Inc., 662 S.W.2d 546, 550 (Mo.App.1983). In reviewing a directed verdict, this court must also consider the evidence, and all reasonable inferences therefrom, in the light most favorable to the non-moving party in order to determine whether the non-moving party made a submissible case against the movant. Rustici v. Weidemeyer, 673 S.W.2d 762, 765 (Mo. banc 1984).

Appellants claim that Nuelle was negligent in failing to maintain a careful lookout.

The obligation of a driver to maintain a careful lookout imposes the "continuous and inescapable duty to maintain a vigilant lookout ahead and laterally ... in such observant manner as to enable him to see what one in the exercise of the highest degree of care for the safety of himself and others could and should have seen under similar circumstances." Graham v. Conner, 412 S.W.2d 193, 200-201 (Mo.App.1967); Braun v. Hoffmeister, 366 S.W.2d 406, 408 (Mo.1963); Section 304.010, RSMo (1986). The driver is also under a duty to take effective precautionary action "when a person, in the exercise of the highest degree of care, would have reason to anticipate danger." Thomas v. Wade, 361 S.W.2d 671, 674 (Mo. banc 1962); Section 304.010, RSMo (1986).

Foster v. Farmers Ins. Co., 775 S.W.2d 143, 144 (Mo. banc 1989).

Appellants had the burden of showing a causal connection between Nuelle's alleged negligence, failure to keep a lookout, and Hacker's injury. Pringle v. State Highway Comm'n, 831 S.W.2d 735, 737 (Mo.App.1992). They fail to meet their burden if the evidence leaves "the element of causal connection in the nebulous twilight of speculation, conjecture and surmise." Id. (quoting Shelton v. Bruner, 449 S.W.2d 673, 680 (Mo.App.1969)). Failure to keep a lookout contains two inherent components: (1) the ability to see, and (2) the...