Lear v. Norfolk and Western Ry. Co.

• Decision Date: 02 July 1991
• Docket Number: No. WD,WD
• Citation: 815 S.W.2d 12
• Parties: Ben Ellis LEAR and Linda J. Lear, Appellants/Cross-Respondents, v. NORFOLK AND WESTERN RAILWAY COMPANY, et al., Respondents/Cross-Appellants. 43876.
• Court: Missouri Court of Appeals

Page 12

815 S.W.2d 12

Ben Ellis LEAR and Linda J. Lear, Appellants/Cross-Respondents, v. NORFOLK AND WESTERN RAILWAY COMPANY, et al Respondents/Cross-Appellants.

No. WD 43876.

Missouri Court of Appeals,

Western District.

July 2, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Aug. 27, 1991.

Application to Transfer Denied Oct. 16, 1991.

Cathleen Anne Shine, Harrisonville, for appellants/cross respondents.

Richard E. McLeod, Kansas City, for respondents/cross appellants.

Before LOWENSTEIN, P.J., and TURNAGE and FENNER, JJ.

FENNER, Judge.

This action arises from the claims of Ben Lear and his wife, Linda Lear against Norfolk and Western Railway Company (Norfolk and Western) and Service Cartage Company (Service Cartage). Ben Lear alleged at trial that he was injured while inspecting a trailer belonging to Norfolk and Western. Linda Lear's claim was for loss of consortium.

Ben Lear was an employee of Contract Trailer Service, Inc. (Contract Trailer). Contract Trailer was a trailer repair business that had an arrangement with Norfolk and Western whereby Ben Lear was stationed at the Norfolk and Western Railroad yards in North Kansas City to bid jobs for trailer repair on trailers owned by Norfolk and Western.

Service Cartage moved trailers belonging to Norfolk and Western by use of tractors belonging to Service Cartage. The tractors were driven by Service Cartage employees.

On July 19, 1984, a driver for Service Cartage brought a damaged Norfolk and Western trailer to the driveway next to the railroad's office building to have the necessary paper work on the trailer filled out. Ron Nelson, an employee of Norfolk and Western, inspected the trailer observing that it had a hole in the roof. While the trailer was still parked next to the office, Ron Nelson asked Ben Lear to make a bid to repair the trailer.

When Ben Lear was asked to make a bid on the trailer, the tractor was still attached to it with the engine running while the paperwork was being completed. Ben Lear went out to the trailer and climbed on top to inspect the damage. While Ben Lear was on top of the trailer the Service Cartage driver came out of the office and began to drive away having been instructed by Ron Nelson on where the trailer should be parked. As the trailer began to move Ben Lear jumped from the top of the trailer to the office roof and was injured in the process.

APPEAL OF BEN AND LINDA LEAR

After trial by jury, Ben Lear was awarded $80,000 against Norfolk and Western, reduced by 70% contributory fault assessed against him. Service Cartage was found not to be at fault. Additionally, judgment was against Linda Lear on her claim for loss of consortium. Ben and Linda Lear appeal and Norfolk and Western cross-appeals.

In their first point on appeal, the Lears argue that the trial court erred in entering judgment against Linda Lear on her claim for loss of consortium since Ben Lear received judgment and it was undisputed that he was hospitalized for his injuries. The Lears argue that Linda Lear was entitled to judgment for at least nominal damages.

A cause of action for loss of consortium is separate and distinct from the party's spouse suffering personal injury. The spouse seeking compensation for loss of consortium must show that he or she suffered damages arising out of the other's injuries. Anderson v. Mutert, 619 S.W.2d 941, 945 (Mo.App.1981). It does not follow automatically from one spouse's injuries that the other spouse suffered loss of services. Weisbach v. Vargas, 656 S.W.2d 797, 802 (Mo.App.1983). A jury is free to believe all or none of the testimony of any witness. Anderson v. Mutert, 619 S.W.2d at 945-46. In passing upon oral evidence a jury may find against a party even on the party's own unimpeached and uncontradicted evidence. Ferguson v. Boyd, 448 S.W.2d 901, 903 (Mo.1970).

Linda Lear was not entitled to judgment on her claim for loss of consortium merely because Ben Lear was found to have been injured. Furthermore, a wife's claim for loss of services is derivative only and she may not recover any damages as a matter of law on a claim for loss of services if her husband has no valid claim for his personal injuries. Burrow v. Moyer, 519 S.W.2d 568, 572 (Mo.App.1975). Judgment was in favor of Service Cartage on Ben Lear's claim and therefore, for this additional reason Linda Lear was not entitled to judgment against Service Cartage.

Appellants' first point is denied.

In their second point, the Lears argue that the trial court erred in giving Instruction Number 9 because: 1) it contained prohibited judicial comment on the evidence; 2) it improperly submitted "positional" negligence; 3) it constituted a roving commission; 4) it failed to hypothesize danger; 5) it failed to identify its source; and 6) it assumed an essential fact.

Instruction Number 9 submitted the issue of Ben Lear's comparative fault. It was submitted by the defendants at trial based upon MAI 37.02 [1986 New] as modified by the defendants. Instruction Number 9 read as follows:

In your verdict you must assess a percentage of fault to plaintiff Ben Lear if you believe:

First, either

Ben Lear failed to wait to inspect the trailer until it had been parked and the tractor removed, or

Ben Lear failed to provide a warning to anyone who might operate the tractor/trailer rig that he was on top of the trailer, and

Second, in any one or more of the respects submitted in paragraph First, Ben Lear was thereby negligent, and

Third, such negligence directly caused or directly contributed to cause any damage which Ben Lear may have sustained.

Reversal of a judgment rendered at trial due to an inappropriate jury instruction is warranted only when the defects in the instruction are of such a nature that there is substantial potential for a prejudicial effect. Gaffney v. Community Federal Savings and Loan Association, 706 S.W.2d 530, 536 (Mo.App.1986). Giving an alleged erroneous instruction is not grounds for reversal when the facts show the instruction could not have prejudiced the party appealing. Id. The prejudicial effect of an erroneous instruction must be judicially determined. Rule 70.02(c). When the burden of proof is greater than necessary as a result of an erroneous instruction, and a verdict is nevertheless reached in favor of the party bearing that burden, the error is harmless. Gaffney, 706 S.W.2d at 536.

Prohibited Judicial Comment

The appellants argue here that it was error for the court to instruct that a percentage of fault was to be assessed to Ben Lear if the jury found that "Ben Lear failed to wait to inspect the trailer until it had been parked and the tractor removed." Appellants argue that it was a conceded fact that Ben Lear commenced to inspect the trailer before the tractor was detached and that inclusion of this conceded fact in the instruction constituted a prohibited comment on the evidence.

In a negligence case, where there is evidence from which a jury could find that the plaintiff's conduct was a contributing cause of his damages, use of the instructions for comparative fault are appropriate. Earll v. Consolidated Aluminum Corp., 714 S.W.2d 932, 937 (Mo.App.1986). Under the doctrine of comparative fault the jury has the responsibility of assessing the relative fault of the parties in tort actions. Kramer v. Chase Resorts, Inc., 777 S.W.2d 647, 651 (Mo.App.1989).

Regardless of whether given conduct is conceded or not, the jury must still assess the relative fault of the parties considering their conduct. Furthermore, the plaintiff generally suffers no prejudice when the jury is required to find an issue that the plaintiff concedes. See e.g., Young v. Kansas City Power & Light Co., 773 S.W.2d 120, 125 (Mo.App.1989); Wadlow by Wadlow v. Lindner Homes, Inc., 722 S.W.2d 621, 630 (Mo.App.1986); Reed v. Sale Memorial Hosp. & Clinic, 698 S.W.2d 931, 939 (Mo.App.1985); and Terry v. Sweeney, 420 S.W.2d 368, 376 (Mo.App.1967).

Appellants' claim of error for the submission of an allegedly conceded fact is denied. "Positional" Negligence

The appellants next argue that Instruction Number 9 was improper because it allowed the jury to find that the "mere position" of Ben Lear on top of the trailer was an act of negligence. Appellants once again reference the first paragraph of the first element of the instruction which directed a percentage of fault to be assessed if the jury believed "Ben Lear failed to wait to inspect the trailer until it had been parked and the tractor removed."

Appellants cite Ballew v. Schlotzhauer, 492 S.W.2d 774 (Mo.1973) in support of this argument. In Ballew, the plaintiff was dressed as Santa Claus, riding on the back of a flat bed truck in a parade. It was understood that the vehicle would be moving at very slow speeds in a closely controlled situation. The court held that under the evidence of the case it could not be said that reasonable people could conclude that the mere act of riding on the flat bed truck, without more, was negligent. Id. at 777.

Appellants' interpretation of the Instruction Number 9 in the case at bar is erroneous. The instruction did not allow the jury to find that Ben Lear's mere position on top of the trailer was negligence. As submitted by the paragraph of the instruction in question, Ben Lear's negligence was in being on top of the trailer before it was parked with the tractor removed. In other words, Ben Lear was negligent in light of the conditions existing at the time he climbed to the top of the truck. The conditions in the case at bar were thus distinguishable from those presented in Ballew.

Appellants' claim of error for submitting alleged "positional" negligence is denied.

Conflict and Roving Commission

The appellants also claim here that the language in the second paragraph of the first element on Instruction Number 9 should have required a finding that Ben Lear failed to provide a warning to the particular driver of the truck rather than...