Labbee v. Roadway Express, Inc.

• Decision Date: 09 November 1972
• Docket Number: No. 72-1165.,72-1165.
• Citation: Labbee v. Roadway Express, Inc., 469 F.2d 169 (8th Cir. 1972)
• Parties: Joyce LABBEE, by Pearl Labbee, Next Friend, Appellant, v. ROADWAY EXPRESS, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

469 F.2d 169 (1972)

Joyce LABBEE, by Pearl Labbee, Next Friend, Appellant, v.ROADWAY EXPRESS, INC., Appellee.

No. 72-1165.

United States Court of Appeals, Eighth Circuit.

Submitted September 12, 1972.

Decided November 9, 1972.

Jack Appelquist, Springfield, Mo., for appellant.

Buell F. Weathers, Springfield, Mo., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, MEHAFFY, Circuit Judge, and DENNEY, District Judge.^*

DENNEY, District Judge.

This is a suit for damages for personal injuries brought by Joyce Labbee, a minor, through Pearl Labbee, her mother and next friend.The suit was originally filed in the Circuit Court of Texas County, Missouri, at Houston, Missouri, and subsequently removed by the defendant to the United States District Court.

Jurisdiction based upon diversity of citizenship and the requisite amount is established.The case was tried to a jury who found for the defendant, Roadway Express, Inc.Plaintiff's motion for new trial was overruled by the trial court.This timely appeal followed.

At trial, the evidence showed that Joyce Labbee had been riding in an automobile driven by Pearl Labbee on February 6, 1971.The automobile was being driven in a westerly direction on an asphalt highway near rural Dunn, Missouri.It was snowing and the road was snow covered.Being driven in an easterly direction was a tractor trailer truck owned by the defendant.The driver of the truck was Glenn Pannell and it was not disputed that he was operating the vehicle within the scope of his employment.The Labbee vehicle was traveling at approximately 30 m.p.h. when it slipped off the highway as it came out of a curve.It got back on the highway and then skidded across the center line.The truck at this point was between 50 feet-175 yards away, depending on the witness, and travelling at 40 to 50 m.p.h. Pannell jerked his truck to the right, but did not leave the pavement, apply his brakes or sound his horn.The left rear of the automobile and the left front bumper of the truck collided.

The jury returned a verdict for the defendant.

VIOLATION OF STATUTE

Plaintiff alleges that the trial court erred in refusing to give two instructions regarding the effect of a safety provision of the United States Department of Transportation, Federal Highway Administration, which is set out in 49 C.F.R. § 392.14.The Court refused the instructions upon the grounds that there was no evidence of violation of the safety provision upon which the jury could base its verdict and moreover, even assuming that the violation was proven, then there was no causal connection proved between the violation and the collision.

§ 392.14 provides:

Extreme caution in the operation of a motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust or smoke, adversely affect visibility or traction.Speed shall be reduced when such conditions exist.If conditions become sufficiently dangerous, the operation of the vehicle shall be discontinued and shall not be resumed until the vehicle can be safely operated.Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the motor vehicle may be operated to the nearest point at which the safety of passengers is assured.

This Court is of the opinion that the trial court was correct in its ruling on the instructions both for the reasons given and for a more basic one as well.

Missouri is one of those states where violation of a statute of this kind is evidence of negligence in a civil action.State ex rel. Wells v. Mayfield, 365 Mo. 238, 281 S.W.2d 91955.However, before such a violation may be evidence of negligence, it must be shown that the statute was intended to protect against the sort of harm that occurred.Mansfield v. Wagner Electric Mfg. Co., 294 Mo. 235, 242 S.W. 4001922. Regulations of this nature are designed to protect against the possibility that as conditions become hazardous the truck driver will be more prone to lose control of his vehicle and cause an accident.Here, there was no evidence but that Pannell was in complete control of his truck at the time it was struck by the automobile.Thus, even if it could be shown that the statute in question was violated, its violation could not be used as evidence of negligence.Mansfield v. Wagner Electric Mfg. Co., supra.The trial court properly refused to give the requested instructions regarding violation of § 392.14.

VOIR DIRE

The plaintiff also asserts that the trial court committed reversal error in conducting the voir dire examination.Specifically, plaintiff alleges that the trial court did not adequately determine whether or not any prospective jurors had a connection with an insurance company which had an interest in the lawsuit.

During the voir dire, the trial court asked individual questions of the prospective jurors regarding their occupations and families.Part way through the voir dire, counsel approached...