Large v. Carr
| Decision Date | 20 March 1984 |
| Docket Number | 47049,Nos. 47012,s. 47012 |
| Citation | 670 S.W.2d 71 |
| Parties | Allen Lee LARGE, Respondent and Cross-Appellant, v. Gary L. CARR, Appellant and Cross-Respondent. |
| Court | Missouri Court of Appeals |
Marion F. Wasinger, Hannibal, for appellant and cross-respondent.
Branson L. Wood, III, William B. Spaun, Hannibal, for respondent and cross-appellant.
Defendant appeals from the trial court's grant of a new trial in an action where plaintiff sought to recover for injuries he sustained in avoiding a highway collision with defendant. We affirm the trial court's order granting a new trial.
On August 21, 1980, plaintiff was riding his motorcycle in a southerly direction. The day was clear and the roads were dry. Plaintiff estimated his speed at 50 to 60 miles per hour when he entered a right turning curve in the highway. Defendant, driving a pick-up truck northbound, entered the other end of the curve at between 30 and 55 miles per hour.
What next occurred was sharply contested at trial. Plaintiff claimed he was in his proper lane until he discovered defendant approaching wholly on the wrong side of the two lane highway. Defendant stated he was in the correct lane when he discovered plaintiff approaching in the middle of the road. Plaintiff testified he swerved to the left to avoid defendant's truck. Defendant said plaintiff was looking down at the road as the two vehicles approached; when plaintiff looked up and realized he was in the center of the road faced with an on-coming pick-up truck, he lost control of the motorcycle and crossed in front of defendant. Although no collision took place, plaintiff sustained injuries when the motorcycle left the east side of the roadway.
The jury found the issues presented in favor of defendant motorist and against plaintiff motorcyclist. The contributory negligence instruction offered by defendant and given by the trial court required a finding for defendant if the jury believed plaintiff: (1) drove at an excessive speed, or (2) failed to keep a careful lookout, or (3) drove on the wrong side of the road, or (4) drove at a speed making it impossible to stop his motorcycle within the range of his visibility, or (5) failed to stop, swerve or slacken his speed. The trial court, in ruling on plaintiff's post-trial motion, found insufficient evidence for submitting all five situations to the jury and awarded plaintiff a new trial.
When a trial court is allowed to exercise its discretion in granting a new trial, the order will be sustained on appeal unless an abuse of that discretion is clearly shown. In re Marriage of Hill, 650 S.W.2d 726 (Mo.App.1983). Instructional error may provide a basis for the trial court to grant a new trial. Clevinger v. Walters, 419 S.W.2d 102, 105 (Mo.banc 1967). Cf. Medical West Bldg. Corp. v. E.L. Zoernig & Co., 440 S.W.2d 744 (Mo.1969). When a new trial is granted by a trial court, appellate courts are more liberal in upholding that action than when a motion for new trial is denied. Cook v. Cox, 478 S.W.2d 678, 682 (Mo.1972).
Defendant's appeal urges the liberality given a trial court's grant of a new trial should not be accorded plaintiff because he failed to make a submissible case due to his own negligence contributing to his loss. See Nance v. Kimbrow, 476 S.W.2d 560 (Mo.1972). In determining whether plaintiff was contributorily negligent, we consider all plaintiff's evidence as true as well as all reasonable inferences therefrom. If, based on such evidence, reasonable minds could differ as to whether plaintiff exercised the highest degree of care in operating his motorcycle, the issue of contributory negligence is a matter of the jury. Davenport v. Wabash R.R. Co., 435 S.W.2d 641, 646 (Mo. banc 1968). Based on the evidence above favorable to plaintiff, we conclude his own negligence is a question for the jury as well as the negligence, if any, of defendant.
The trial court properly granted a new trial for submitting defendant's contributory negligence instruction, a modification of MAI 17.04. The following is the portion of defendant's instruction warranting reversal:
Plaintiff knew or by the use of the highest degree of care could have known that...
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...liberal in upholding a trial court's decision to grant a new trial than it will be if the trial court denies a new trial. Large v. Carr, 670 S.W.2d 71, 72 (Mo.App.1984). However, a trial court's authority to grant a new trial is discretionary only as to questions of fact, not matters of law......
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