Kearbey v. Wichita Southeast Kansas

• Decision Date: 06 November 2007
• Docket Number: No. WD 65207.,No. WD 65170.,WD 65170.,WD 65207.
• Citation: 240 S.W.3d 175
• Parties: Jeff and Amy KEARBEY, Appellant-Respondents, v. WICHITA SOUTHEAST KANSAS, Respondent-Appellant.
• Court: Missouri Court of Appeals

240 S.W.3d 175

Jeff and Amy KEARBEY, Appellant-Respondents, v. WICHITA SOUTHEAST KANSAS, Respondent-Appellant.

No. WD 65170.

No. WD 65207.

Missouri Court of Appeals, Western District.

November 6, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 18, 2007.

Scott S. Bethune, John M. Cusick, Co-Counsel, Kansas City, for Appellant-Respondent.

Bradley S. Russell, Overland Park, KS, for Respondent-Appellant.

Before LOWENSTEIN, P.J., ELLIS, and HARDWICK, JJ.

HAROLD L. LOWENSTEIN, Judge.

FACTUAL BACKGROUND:

This case stems from an automobile collision in Shannon County, Missouri, in 2000. On the night of October 13th of that year, appellant Jeff Kearbey was driving an extended-cab pickup truck eastbound on U.S. Highway 60, returning to his home after picking up his step-daughter Cassie Foster. The distance between Kearbey's home in Ellsinore, Missouri, and Mountain View, Missouri, where Cassie was living was about sixty miles. Having left Ellsinore at seven or seven thirty in the evening, Kearbey returned that same night with Cassie and his son Jaykota as passengers. Cassie was sleeping in the front passenger seat of the truck and Jaykota was seated on a bench seat in the back, extended-cab portion of the vehicle. Evidence was introduced at trial that Kearbey was fatigued from a lack of adequate sleep and that he told Cassie they might have to play a game called "try and keep dad awake."

Also traveling on U.S. Highway 60 that night was semi-truck driver and Wichita Southeast Kansas Transit (WSKT) employee Mark Vail. Vail was driving a tractor-trailer rig westbound, pulling two trailers in tandem. At approximately 10:00 p.m., Vail's tractor-trailer and Kearbey's truck met on the highway and collided. There was conflicting testimony at trial over where the vehicles were located immediately prior to the collision, with some witnesses claiming that Kearbey's truck entered the westbound lane just before the vehicles impacted and others claiming that Vail's tractor-trailer crossed into the eastbound lane. Regardless, the resulting accident caused significant damage to the vehicles and injuries to Kearbey including broken ribs, a deep laceration of his left shoulder, and trauma to his lungs.

THE TRIAL:

In July of 2002, Kearbey filed a suit for damages against Mark Vail and WSKT alleging negligence on the part of Vail with regard to the collision and vicarious liability on the part of WSKT. Amy Kearbey, Jeff Kearbey's wife, joined the suit with a loss of consortium claim. The case was heard by a jury in a two-week trial starting in October of 2004. At trial, each side attempted to prove that the accident was the result of the other's vehicle being partially in the wrong lane of traffic. Experts testified for each side and two police officers who responded to the scene of the accident were called and examined by the defendant with respect to the circumstances of the collision. The jury's verdict was for the defendants, finding Kearbey one-hundred percent at fault. Kearbey raises five points of error relating to jury instructions and evidentiary issues.

POINT I: JURY INSTRUCTION NUMBER EIGHT

Kearbey asserts error in instruction number eight, specifically the portion which reads: "In your verdict you must access a percentage of fault to plaintiff Jeff Kearbey, whether or not defendant was partly at fault, if you believe: First, plaintiff's motor vehicle was on the wrong side of the road or plaintiff failed to keep a careful lookout." Kearbey claims that the instruction on failure to keep a careful lookout was not supported by substantial evidence.

When reviewing claimed instructional error, this court views the evidence most favorably to the instruction, disregards contrary evidence, and reverses where the party challenging the instruction shows that the instruction misdirected, misled, or confused the jury, and there is a substantial indication of prejudice. Twin Chimneys Homeowners Ass'n v. J.E. Jones Constr. Co., 168 S.W.3d 488, 498 (Mo.App.2005). An appellant is entitled to a new trial only if the instructions contain "`defects of substance with substantial potential for prejudicial effect.'" Mal Spinrad of St. Louis, Inc. v. Karman, Inc., 690 S.W.2d 460, 463 (Mo.App.1985). Any instruction given to the jury must be supported by substantial evidence in the record. Griffin v. Kansas City S. Ry. Co., 965 S.W.2d 458, 462 (Mo.App.1998). If an instruction is submitted in the disjunctive, "all submissions must be supported by substantial evidence." Messina v. Prather, 42 S.W.3d 753, 759 (Mo.App.2001). "Substantial evidence is competent evidence from which a trier of fact can reasonably decide the case." Mathis v. Jones Store Co., 952 S.W.2d 360, 366 (Mo.App. 1997). In determining whether there is substantial evidence to support the instruction, this court views the evidence and all reasonable inferences therefrom from the standpoint most favorable to the party offering the instruction, here the defendant. Corbin v. Wennerberg, 459 S.W.2d 505, 507 (Mo.App.1970).

"[T]he alleged negligent failure to keep a careful lookout is not to be submitted to the jury unless there is substantial evidence from which the jury could find that in the exercise of the highest degree of care, the allegedly negligent party, had he kept a careful lookout, could have seen the other vehicle in time thereafter to have taken precautionary action." Hill v. Barton, 579 S.W.2d 121, 128 (Mo. App.1979). Where failure to keep a careful lookout forms the basis of a comparative negligence defense, additional evidence is necessary from which the jury could find that plaintiff's failure to keep a careful lookout was a proximate cause of the collision. See Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo. banc 1970). Merely looking does not fulfill one's duty to keep a careful lookout. Hill, 579 S.W.2d at 128. "A person is required to look in such an observant manner as to enable him to see what one in the exercise of the highest degree of care could and should have seen." Id. A failure to keep a lookout submission contains two inherent components, the ability to see and the ability, including time and means, to avoid the accident. See Heberer, 449 S.W.2d at 563. "Generally, it is impossible for a party to produce direct evidence that the other party was not looking." Finninger v. Johnson, 692 S.W.2d 390, 393 (Mo.App.1985). "Thus, proof can be made circumstantially." Id.

At trial, WSKT presented testimonial evidence by several persons that tended to show a failure by the plaintiff, Kearbey, to keep a careful lookout. As to Kearbey's ability to see the tractor-trailer before impact, WSKT introduced deposition testimony of Kearbey's son Jaykota that, after Jaykota noticed the headlights from Vail's tractor-trailer shining on the back seat of Kearbey's truck, Jaykota had time to turn and look out the front windshield and notice the location of Vail's tires with respect to the center line. It is evident from the record that Jaykota was sitting in the back seat of the truck and directly behind his sister Cassie who was seated in the front passenger seat. So seated, the boy would have had to lean to the middle of the truck and look through the two front seats to see out the front windshield.

WSKT also produced several forms of evidence that tended to show Kearbey had fallen asleep at the time of the accident. The jury heard testimony from the highway patrol's Sergeant Inman, who had spoken with Cassie Foster during his investigation of the accident. According to Inman, Cassie said she had asked her father whether they could play a game in the car as they traveled that night and he responded that the only game they would be playing would be "try and keep dad awake." Evidence of Kearbey's fatigue was introduced through the testimony of Lashawn Loveall, Kearbey's sister-in-law. Loveall admitted that, to her knowledge, Kearbey had slept only six hours the night before the accident.

Along with this testimony as to the fatigued condition of Kearbey on the night of the accident, WSKT also presented evidence regarding the scene of the accident that the jury could have taken as proof that Kearbey had driven in the wrong lane and had done so because he had fallen asleep at the wheel. Mark Vail testified that Kearbey entered Vail's lane immediately before the accident and that Kearbey did not take any evasive action to prevent the collision. Sergeant Inman testified that the tire marks left by Vail's tractor-trailer were contained in the westbound lane in which Vail had been traveling. WSKT introduced pictures showing the same. Sergeant Inman also testified that there were no tire marks made by Kearbey's truck until after the point of impact. Dr. Bruno Schmidt, an accident reconstruction expert, testified that the collision occurred in Vail's lane of traffic. Dr Schmidt also read to the jury, from a manual on accident reconstruction, the following: "The best refutation of speculation that a driver fell asleep is some sign on the road or observed vehicle behavior indicating [that] before leaving the roadway or striking another vehicle, the driver applied brakes or steered abruptly. One does not do either of these if he is really asleep." When asked if there was any evidence on the road of brake application or abrupt steering by Kearbey, Dr. Schmidt stated that there was none. Also, Sergeant Inman testified that there were no tire marks left by Kearbey's truck until after the point of impact.

The evidence noted above is to be viewed in a light most favorable to WSKT, the proponent of the instruction. From the testimony of Jaykota, the jury could have found that Kearbey had the ability to see the approaching tractor-trailer and the time to react. Jaykota's account suggests that he had time, after noticing the reflection of the tractor-trailer's headlights on the seat next to him, to turn, lean over to the center of the truck, look out the...