Lewis v. State Sec. Ins. Co., 50558

• Decision Date: 12 August 1986
• Docket Number: No. 50558,50558
• Citation: 718 S.W.2d 539
• Parties: William LEWIS, Jr., Respondent, v. STATE SECURITY INSURANCE COMPANY, Appellant.
• Court: Missouri Court of Appeals

Page 539

718 S.W.2d 539

William LEWIS, Jr., Respondent, v. STATE SECURITY INSURANCE COMPANY, Appellant.

No. 50558.

Missouri Court of Appeals,

Eastern District,

Division One.

Aug. 12, 1986.

Motion for Rehearing and/or Transfer

to Supreme Court

Denied Sept. 24, 1986.

Application to Transfer Denied Nov. 18, 1986.

James M. Daly, Stephen G. Bell, St. Louis, for appellant.

Ray E. White, III, St. Louis, for respondent.

SNYDER, Chief Judge.

State Security Insurance Company appeals from a judgment awarding respondent William Lewis, Jr. money damages for injuries he sustained as a result of being struck by a hit-and-run automobile as he walked across St. Charles Rock Road. Respondent sued State Security under the uninsured motorist provision of a policy it issued to respondent's brother with whom respondent lived.

Appellant alleges the trial court erred in submitting the case to the jury on a "failure to keep a proper lookout" instruction because respondent failed to make a submissible case on this issue. This court agrees. The judgment is reversed.

On June 19, 1982, at about 11:30 p.m. respondent was struck by a hit-and-run automobile as he walked across the eastbound lanes of St. Charles Rock Road at its intersection with Coles Avenue. The intersection of St. Charles Rock Road and Coles Avenue is a "T" intersection with Coles intersecting from the south and not continuing past St. Charles Rock Road to the north. A raised median separates the westbound and eastbound lanes of St. Charles Rock Road.

One could see eastbound traffic on St. Charles Rock Road for about three blocks west of the place of the accident. The scene of the accident is level and straight, with no hills or curves. The intersection of Coles and St. Charles Rock Road was well lighted by a street light and lights from adjacent business establishments. There were no parked cars along the eastbound curb lane at the time of the accident. Eastbound traffic on St. Charles Rock Road was visible for three long blocks west of the place of the accident and there were no other eastbound vehicles, other than the hit and run automobile, in those three blocks. There were cars stopped at a traffic signal located three blocks west of Coles Avenue.

Respondent was crossing St. Charles Rock Road from north to south at the Coles intersection. He was going from the El Rancho Lounge on the north side of St. Charles Rock Road to the Rainbow Lounge on the south side.

On the night of the accident he drank 3 or 4 beers at the El Rancho Lounge and had drunk an additional 3 or 4 beers prior to that at an anniversary party. Medical records showed respondent's alcohol level to be .414 on his admission to the hospital following the accident.

Respondent crossed the two westbound lanes of St. Charles Rock Road without difficulty, walking normally without staggering, passed through the median after looking for traffic and saw only the cars three blocks to the west at the stop light. He was struck in the middle eastbound lane. There was no sound of brakes or a horn before the collision, but there was the sound of brakes immediately after the collision. The hit-and-run driver did not stop, but instead accelerated and continued traveling east on St. Charles Rock Road.

It should be pointed out that the only other witness, Alice Bagwell, testified that respondent was walking south to north and that he was struck in the left hand eastbound lane. Bagwell did not see the actual impact. She heard "a loud thump", turned around and saw respondent in the air above the car. She did not see the hit-and-run vehicle before the accident, had no idea where it came from, and did not see the vehicle's license plate number, being concerned, as she said, with the respondent's condition.

Respondent filed suit relying on the uninsured motorist provisions of his brother's insurance policy with appellant. The case was submitted to the jury on the theory that the operator of the hit-and-run vehicle failed to keep a careful lookout. The jury found for respondent and against appellant and awarded respondent damages of $75,000.00. The trial court ordered this sum reduced to $25,000.00, the limits of the applicable insurance policy.

In its sole point relied on, appellant charges the trial court erred in submitting to the jury the instruction on failure to keep a careful lookout because respondent failed to make a submissible case. Appellant's point is well taken.

In considering whether a submissible case was made to support the failure to keep a careful lookout instruction, this court must construe the evidence in a light most favorable to respondent, the party offering the instruction. Commerford v. Kreitler, 462 S.W.2d 726, 728 (Mo.1971); Finninger v. Johnson, 692 S.W.2d 390, 394 (Mo.App.1985).

Submission of a jury instruction on failure to keep a careful lookout must be supported by substantial evidence "from which the jury could find that, in the exercise of the highest degree of care, the allegedly negligent party, had he kept a careful lookout, could have seen the other vehicle or person in time thereafter to have taken effective precautionary action." (citations omitted) Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo. banc 1970); Zalle v. Underwood, 372 S.W.2d 98, 102[1-3] (Mo.1963).

The party offering the instruction has the burden of showing a causal connection between the alleged failure to keep a proper lookout and the injury sustained. Bunch v. McMillian, 568 S.W.2d 809, 811 (Mo.App.1978). If the evidence presented "leaves the causal connection in the nebulous twilight of speculation, conjecture and surmise," the burden is not met and the jury should not be instructed on the failure to keep a careful...