Kinder v. Pursley
| Decision Date | 12 December 1972 |
| Docket Number | No. 34599,34599 |
| Parties | Jeanette KINDER and Joel Kinder, Plaintiffs-Appellants, v. Jeannine Rose PURSLEY and Boyd Contracting Company, Inc., Defendants-Respondents. . Louis District |
| Court | Missouri Court of Appeals |
Thomas J. Briegel, Union, for plaintiffs-appellants.
Murphy & Kortenhof, Ben Ely, Jr., Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Joseph H. Mueller, St. Klouis, for defendants-respondents.
Mrs. Jeanette Kinder (hereafter 'plaintiff') was the guest-passenger in defendant Jeannine Pursley's car when it ran off the unguarded end of a roadway being constructed by defendant Boyd Contracting Company. Plaintiff and her husband sued both Pursley and Boyd.
The jury returned a verdict in favor of host-driver Pursley but gave plaintiffs verdicts for $15,000 and $3,000 respectively against Boyd. The trial court granted Boyd's motion for a new trial on the ground it had erred by failing to define the words 'adequate warning' used in plaintiffs' verdict-directing instructions. Plaintiffs appeal from the judgment in favor of defendant Pursley and also from the order giving defendant Boyd a new trial.
On plaintiffs' appeal from the judgment against them in favor of defendant Pursley, they brief only one abstract point: that defendant Pursley was negligent as a matter of law, without pointing to any error allegedly committed by the trial court. We can only interpret this as a contention the trial court should have directed a verdict for plaintiffs against defendant Pursley. The short answer to this is that plaintiffs did not ask for that relief below and cannot now convict the trial court of error in failing to take action plaintiffs did not request. Stanziale v. Musick, Mo., 370 S.W.2d 261, 266(5).
Although the trial court granted Boyd's after-trial motion for a new trial, Boyd is entitled now to raise the more basic issue--alternatively raised in its after-trial motion--that plaintiffs did not make a submissible case. Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918(1).
The accident occurred on a newly-paved service road running along the south side of east-west Highway 44 near Sullivan in Franklin County. As concerns this case, the service road began with its westerly end at north-south Park Street, ran thence east for half a mile across Church Road and continued on east three-tenths of a mile to its uncompleted end. At that point the paving ended with a 25-foot declivity.
It was dark and raining on October 23, 1970 about 7:30 P.M. when defendant Pursley, the host-driver, drove north out of Sullivan on Park Street. When she reached the service road she turned right, drove east for half a mile, crossed Church Road and continued on for three-tenths of a mile. At that point her car fell off the end of the road into the declivity, seriously injuring plaintiff Jeanette Kinder. Neither the western end of the service road at Park Street nor the eastern end at the declivity were marked in any way.
Defendant Boyd at times put a heavy barricade and a 'Road Closed' sign across the service road at the eastern side of Church Road. On the night in question neither the intersection nor the barricade were lighted and plaintiff and Mrs. Pursley drove across Church Road without seeing the barricade. Plaintiffs' witness Brand, a police officer, called to the scence soon after the accident, said the barricade was not across the service road but was over on the south side generally parallel with the pavement. Brand said he had no trouble seeing the barricade because 'I knowled it was there.' A few minutes after the collision defendant Pursley's witness Weiskoph rode to the scene of the accident in the wrecker that towed the Pursley car. At that time the barricade was not across the service road and he did not notice it over on the shoulder.
Defendant Boyd's employees Alstat and Boyd testified for Boyd that the barricade had been removed during the day but was across the service road when they left work between 4:00 and 5:00 P.M.
In testing the submissibility of plaintiffs' case our review is based on the theory upon which plaintiffs grounded their recovery and we consider the evidence in the light most favorable to plaintiffs, disregarding defendant's evidence except where it aids plaintiffs' case. Kirks v. Waller, Mo., 341 S.W.2d 860(2).
Plaintiffs' submission against defendant Boyd was on the theory Boyd had negligently failed to give adequate warning of the dangerous condition ahead. As a road contractor working on a public road Boyd was duty-bound to exercise reasonable care for the safety of persons using the service road. Joshmer v. Fred Weber Contractors, Inc., Mo.App., 294 S.W.2d 576(2); Grab v. Davis Construction Company, 233 Mo.App. 819, 109 S.W.2d 882(4, 11). In Melican v. Whitlow Construction Company, Mo., 278 S.W. 361(2, 3), the court held: 'It was the duty of defendant (road contractor) to place and maintain, during the time of darkness, such lights or warning signals as would enable persons, exercising ordinary care, to discover the danger and pass in safety.'
Viewing the evidence favorable to plaintiffs the jury could have believed Boyd had failed to place a barricade across the service road at Church Road on the evening in question. The jury was not bound to believe Boyd's two employees' testimony that the barricade was replaced across the road when they left work two or three hours earlier. Boyd stresses the testimony of plaintiffs' witness Brand that he saw the barricade beside the road. That does not destroy plaintiffs' case. The jury may well have concluded that the barricade so placed on a dark, rainy night was not an adequate warning.
Defendant Boyd stresses two Missouri cases in the issue of submissibility. Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W.2d 54, concerned a motorist who collided with a utility pole outside an unlighted city street. In essence, the court held that was not a defect in defendant city's street and hence it had no duty to warn the motorist. At 10 S.W.2d l.c. 63, the court by admitted dicta said the city was entitled to notice that a street light had been extinguished. The case is not in point.
Defendant also cites DePung v. City of St. Louis, Mo.App., 425 S.W.2d 509, concerning the City's liability for the act of a third party in failing to adequately light a barricade. There the plaintiff's theory was that the city had timely notice of...
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