King v. Morgan, WD

• Decision Date: 08 March 1994
• Docket Number: No. WD,WD
• Citation: 873 S.W.2d 272
• Parties: Tom KING, Appellant, v. Edward H. MORGAN, Respondent. 47896.
• Court: Missouri Court of Appeals

Page 272

873 S.W.2d 272

Tom KING, Appellant, v. Edward H. MORGAN, Respondent.

No. WD 47896.

Missouri Court of Appeals Western District.

March 8, 1994.

J. Kirk Rahm, Warrensburg, for appellant.

Robert G. Russell and J. Christopher Spangler, Sedalia, for respondent.

Before BERREY, C.J., P.J., and KENNEDY and ELLIS, JJ.

ELLIS, Judge.

On the morning of April 29, 1991, Tom King and his assistant Kent Bechhold were doing surveying work on the south shoulder of Missouri Highway 58 in Johnson County. That same morning, Edward Morgan was headed east on Highway 58 driving a tractor-trailer unit carrying a bulldozer with a blade some 12 feet wide. In order to keep the dozer blade from hanging over the center line, and to enable him to use the driver's side rear view mirror, earlier that morning Morgan had loaded the bulldozer in such a way that its blade extended some 29 1/2 inches over the right hand side of the tractor-trailer. As Morgan passed by at 40 miles per hour, King, who was facing away from Morgan's oncoming vehicle and looking through his surveyor's transit at a rod held by Bechhold, was struck in the head, left shoulder, and left arm by the protruding bulldozer blade. He suffered severe injuries requiring extensive surgery and hospitalization.

King filed suit against Morgan. In his answer, Morgan alleged that King was contributorily negligent for failing to keep a careful lookout, failing to give an adequate warning of his presence and purpose, and failing to walk upon the proper shoulder of the roadway. Prior to trial, the court granted Morgan's motion to dismiss Count I of King's petition, which alleged that Morgan was strictly liable for King's injuries. At trial, Morgan admitted that he saw King ahead of him a quarter of a mile away and never lost sight of him as he approached. He also testified that he realized that the dozer blade extended over the south shoulder of the highway. He further acknowledged that he never sounded his air horn, slowed down, or attempted to stop his vehicle as he got closer to King, explaining that his original plan to avoid King by moving over into the westbound lane was foiled by the sudden, unexpected appearance of an oncoming vehicle in that lane.

To support his contributory negligence defense, Morgan showed that although King had warning signs and traffic cones in his truck, he had not set them out on the roadway to warn oncoming motorists of his presence. King testified that he had not used the signs and cones that morning because he was working on the shoulder, not the highway itself. He also testified and Morgan did not deny that both he and Bechhold were wearing bright orange vests and hats at the time of the accident.

King proffered two jury instructions submitting negligence per se as a basis for recovery, both of which were refused by the trial court. King's claim was eventually submitted to the jury on a theory of "ordinary" or common law negligence and Morgan's defense of comparative fault. Nine of the twelve jurors returned a verdict assessing 100% of the fault to King. The trial court accepted the verdict and assessed costs against King. King's timely motion for a new trial, including his request for a new trial under Rule 78.01 on the ground that the jury's verdict was against the weight of the evidence, was overruled, and he appeals. We reverse and remand for a new trial.

King briefed four points on appeal. In his second point, King claims the trial court erred in not submitting either of his proffered jury instructions based on Morgan's per se negligence in violating § 304.170.1, RSMo Supp.1991. ¹ This statute says, in relevant part: "No vehicle operated upon the highways of this state shall have a width, including load, in excess of ninety-six inches...." However, "for good cause shown and when the public safety or public interest so justifies," § 304.200.1 authorizes the chief engineer of the Missouri Department of Highways and Transportation to issue special permits for "vehicles or equipment exceeding the limitations on width ... herein specified...." Section 304.200.3 provides that rules and regulations for the issuance of such permits shall be prescribed by the state Highways and Transportation Commission. Those rules have been promulgated and can be found at 7 CSR 10-2.010. ²

Since § 304.240, RSMo 1986, makes any violation of § 304.170 a misdemeanor punishable by a fine of not less than five dollars, confinement in the county jail for not more than a year, or both, § 304.170.1 is a penal statute. In paragraph 2(i) of Count II of his petition, King pleaded § 304.170.1 as a standard of care. A penal statute may be pleaded as a standard of care in a negligence action if (1) The injured party is in the class of persons for whose protection the statute was enacted; and (2) The statute was enacted to protect persons or property, conserve public health, or promote public safety. Moore v. Riley, 487 S.W.2d 555, 558 (Mo.1972); State ex rel. Wells v. Mayfield, 365 Mo. 238, 246-47, 281 S.W.2d 9, 13 (banc 1955). If a penal statute meets these criteria, a violation of that statute, as in the case of a non-penal statute, constitutes actionable negligence per se if the following four elements are met: (1) There was, in fact, a violation of the statute; (2) The injured plaintiff was a member of the class of persons intended to be protected by the statute; (3) The injury complained of was of the kind the statute was designed to prevent; and (4) The violation of the statute was the proximate cause of the injury. Eckert v. Thole, 857 S.W.2d 543, 545 (Mo.App.1993).

We begin our inquiry by determining whether King properly pled § 304.170.1 as an applicable standard of care in his action for negligence.

Was King in the class of persons for whose protection § 304.170.1

was enacted?

Chapter 304, RSMo, is a smorgasbord of statutes regulating motor vehicle traffic. Interpreting various statutes now contained in Chapter 304, the Court in Bowman v. Kansas City, 361 Mo. 14, 28, 233 S.W.2d 26, 35 (banc 1950), observed: "The matter of the control of such motor vehicles when entering or leaving public highways, their movement on the highways, ... and the regulation and control of motor vehicle traffic generally is referable to the police power, as being directly connected with public safety and welfare." As a member of the general public, King was clearly within the class of persons for whose protection the General Assembly enacted § 304.170.1.

Was § 304.170.1

enacted to protect persons or property, conserve

public health, or promote public safety?

In light of Bowman, this is somewhat obvious. Furthermore, in Park Transp. Co. v. Missouri State Highway Comm'n, 332 Mo. 592, 60 S.W.2d 388 (banc 1933), our Supreme Court upheld the constitutionality of § 7787, RSMo 1929 (as amended in 1931), which subsequently became § 304.170. In so doing, it noted: "The State has the right to regulate and control the movements of motor vehicles over its highways, and may exercise it in the interest of public convenience and safety...." 332 Mo. at 599, 60 S.W.2d at 390; see also Dinger v. Burnham, 360 Mo. 465, 469, 228 S.W.2d 696, 699 (1950) (the purpose of statutes regulating vehicular traffic on state highways is to promote public safety).

Having established that King properly pled § 304.170.1 as an applicable standard of care, we now determine whether he proved actionable negligence based on Morgan's violation of that statute.

Did Morgan violate § 304.170.1?

The jury, not the trial court, should determine the existence of operative facts showing the defendant's violation of the statute. Beezley v. Spiva, 313 S.W.2d 691, 695-97 (Mo.1958). However, in deciding whether a negligence per se instruction is proper, the trial court is authorized to make a threshold determination as to the sufficiency of the plaintiff's proof that a violation has occurred. See Monteer v. Prospectors Lounge, Inc., 821 S.W.2d 898, 900-01 (Mo.App.1992). "To determine whether plaintiff[ ] made a submissible case, we review the evidence and sensible inferences in the light most favorable to plaintiff[ ]." Bentley v. Crews, 630 S.W.2d 99, 101 (Mo.App.1981).

The trial testimony conclusively established that Morgan's vehicle, including load, was at least 11 feet (or 132 inches) wide. However, Morgan argues he was not in violation of § 304.170.1 because the bulldozer being transported was used for agricultural and road building purposes. He cites § 304.170.9(1) (now § 304.170.12(1), RSMo Supp. 1993), which says: "Except as hereinafter provided, these restrictions shall not apply ... to vehicles temporarily transporting agricultural implements or implements of husbandry or roadmaking machinery...." Morgan reasons that since he falls under this exception, he did not violate § 304.170.1 and the trial judge correctly refused King's proffered negligence per se instructions.

In a negligence per se case, the applicability of the statute said to be violated by the defendant is a matter of law for the court. Derboven v. Stockton, 490 S.W.2d 301, 315 (Mo.App.1972). We reject Morgan's claim that he was exempt from complying with § 304.170.1 by virtue of § 304.170.9(1) because Morgan's tractor-trailer unit was not "temporarily transporting" the bulldozer at the time of the accident.

In the Park case cited earlier, the Court also elucidated the meaning of § 7787 (now § 304.170), which exempted " 'vehicles temporarily transporting agricultural implements or roadmaking machinery' " from the length limitations established therein. 332 Mo. at 597, 60 S.W.2d at 390 (quoting Laws of Mo.1931, p. 265). Interpreting the phrase "temporarily transporting," the Court said:

The expression 'temporarily transporting' as used in the statute is a definition, a term of legal signification, to be interpreted as a matter of law.... [It] refers to the use made of the highways, and implies that the use in any particular instance is of...