Lockwood v. Schreimann
| Decision Date | 24 September 1996 |
| Docket Number | No. WD,WD |
| Citation | 933 S.W.2d 856 |
| Parties | Dennis LOCKWOOD, Respondent, v. Duane S. SCHREIMANN, Defendant ad Litem for Robert S. Wilson, deceased, Appellant. 51865. |
| Court | Missouri Court of Appeals |
P. Pierre Dominique, Jefferson City and J. Christopher Spangler, Sedalia, for appellant.
Mark Turley, Rolla, for respondent.
Dennis Lockwood sued Robert S. Wilson for injuries he suffered when the pickup he was driving collided with a car driven by Wilson in Jefferson City. A jury awarded Lockwood $95,465.84 for his injuries, and Wilson 1 appeals.
Wilson charges the circuit court with five points of error: (1) refusing to give an excessive speed instruction to the jury, (2) prohibiting him from cross-examining Lockwood about his claim for worker's compensation for an injury that occurred after the automobile accident, (3) denying his motion to amend the judgment reflecting a credit against the judgment for the amount of the worker's compensation settlement Lockwood received, (4) prohibiting him from cross-examining Lockwood's economist as to whether the economist's calculations of Lockwood's past and future earnings loss took into account state and federal taxes, and (5) giving a modified damage instruction to the jury instead of M.A.I. 4.01. We affirm.
On June 18, 1990, at about 8:00 A.M., Lockwood was driving his pickup east on Southwest Boulevard in the right-hand through traffic lane 2 as it approached the intersection with Jefferson Street. A tractor-trailer rig had stopped in the left-hand through traffic lane. The traffic light was green for Southwest Boulevard traffic when Lockwood's pickup entered the intersection. Lockwood drove into the intersection at approximately 20 to 30 miles an hour. 3 Wilson's car, traveling west on Southwest Boulevard, turned left into the path of Lockwood's pickup, and Lockwood's pickup crashed into the side of Wilson's car on the passenger side. An investigating police officer cited Wilson with failing to yield the right-of-way. Wilson pleaded guilty to the charge.
In his first point on appeal, Wilson asserts that the circuit court erred in not giving this excessive speed instruction:
In your verdict you must assess a percentage of fault to plaintiff, whether or not defendant was partly at fault, if you believe:
First, plaintiff drove at an excessive speed, and
Second, plaintiff was thereby negligent, and
Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.
Wilson claims that substantial evidence existed from which a jury could conclude that Lockwood drove at an excessive speed under the circumstances. We disagree.
The instruction would have been proper only had the record indicated that Lockwood was driving at a speed which, under the circumstances, prevented him from avoiding a collision. Knox v. Simmons, 838 S.W.2d 21, 24 (Mo.App.1992). The evidence had to support a finding that Lockwood was driving at an excessive speed and that his vehicle's speed was a direct, contributing cause. Braniecki v. Mound City Yellow Cab Company, Inc., 861 S.W.2d 683, 685 (Mo.App.1993). Although the evidence indicated that Lockwood was driving within the posted speed limit, a jury could still have found him negligent if it determined that he drove at a speed which endangered persons and property under the existing conditions. Schneider v. Finley, 553 S.W.2d 727, 731 (Mo.App.1977). Lockwood was not entitled to rely solely on a favorable traffic signal; "the duty of care to be exercised remains commensurate with the circumstances, one of which is the green light." Braniecki, 861 S.W.2d at 685. Because left turns were permitted on a green light at the intersection, the possibility of an oncoming vehicle making a left turn was a circumstance to be considered. Id. Whether a particular speed is excessive depends on the conditions of the highway and surrounding circumstances. Schneider, 553 S.W.2d at 731. "Particular conditions and circumstances relevant to determining whether speed is excessive include the amount of traffic and road and weather conditions." Braniecki, 861 S.W.2d at 685. "Thus, a speed within the posted speed limit may be excessive when maintained on an arterial road, during rush hour, on wet streets, during rain showers at night." Id.
Wilson contends that the evidence established that Lockwood was very familiar with the intersection and knew that many vehicles traversed it at that time of day. 4 Lockwood admitted that he drove into the intersection at 20 to 30 miles an hour although a tractor-trailer rig stopped in the other through lane obscured his vision of traffic. Lockwood testified:
Q. And because that tractor-trailer was in the left lane, it obstructed your vision as to the intersection which would be coming from Jefferson Street.
A. Yes, it did.
Q. And you knew that before you came into the intersection, did you not?
A. That my vision was obstructed?
Q. Yes, sir.
A. Yes, I did know that.
Q. Okay. And when you observed that your vision was obstructed and you couldn't see what was coming, say, going south on Jefferson Street, did you slow down any?
A. I'm sure I did.
....
Q. [A]s you came in this intersection and this truck was in the left-hand lane which blocked your vision, you continued to travel at 20 to 30 miles an hour; isn't that correct?
A. Yes.
Wilson argues that this was substantial evidence supporting the excessive speed instruction. He contends that Lockwood had a duty to approach the intersection at a sufficiently reduced speed so that he could control his vehicle and avoid hitting a vehicle in the intersection. Wilson did not establish, however, that the speed at which Lockwood was driving was a direct, contributing cause of the collision. Roper v. Archibald, 680 S.W.2d 743, 748 (Mo.App.1984).
"Excessive speed is not the proximate cause of a motor vehicle collision unless it prevents the operator of the vehicle traveling at the excessive speed from avoiding the accident; hence it must be shown that the collision would not have occurred except for the excessive speed shown by the evidence." Id. The causal connection between excessive speed and the collision must be established by the evidence and cannot be left to mere speculation and conjecture. Id. "This rule, however, does not require that there must be direct proof of the fact itself; it is sufficient if the facts proved are of such a nature and are so connected and related to each other, that the conclusion therefrom may be fairly inferred." Id.
Wilson contends that the evidence established that Lockwood's excessive speed caused or contributed to cause this accident. He argues:
This court can take judicial notice of the fact that a vehicle travels approximately 1.5 feet per second for every mile per hour that the vehicle is traveling. Thus, had Lockwood simply slowed to 25 miles per hour two seconds preceding the impact, his vehicle would have been approximately 15 feet farther back west and there clearly would have been no collision. Had Lockwood slowed to 25 miles per hour one second prior to impact, that would have put his vehicle approximately 7 1/2 feet further west which would have allowed this collision to be avoided, particularly in conjunction with a minor evasive steering input to the left.
Lockwood testified, however, that he was going between 20 and 30 miles an hour. This means that he could have been traveling at Wilson's suggested 25 miles per hour. In light of the speculation about Lockwood's speed, we conclude that Wilson did not establish the causation factor necessary for giving an excessive speed instruction. Wilson improperly left causation to speculation and conjecture.
In his next point, Wilson contends that the circuit court erred in prohibiting him from cross-examining Lockwood about his claim for worker's compensation for a back injury which occurred on the job after the automobile accident. Wilson asserts that it was a hotly contested issue as to whether Lockwood's lumbar fusion surgery and medical expenses were a result of the automobile accident or the result of a job-related injury occurring when Lockwood was pushing a car.
The automobile crash injured Lockwood's lower back. He continued working, however, as an auto service manager for a major retail store and sometimes pushed cars into and around the service area. On October 4, 1991, he pushed a car into the service center. The next day, while making a car trip to Cape Girardeau, he experienced increased levels of pain in his right leg to the point that he had difficulty getting out of the car.
Wilson wanted to introduce evidence that Lockwood had prosecuted successfully a worker's compensation claim against his employer. The circuit court refused to permit the evidence pursuant to the collateral source rule. Wilson responded by making this offer of proof:
[Wilson's attorney, P. Pierre Dominique:] Mr. Lockwood, I'm going to ask you whether or not after the October 4th, 1991, accident and injury you filed a claim--
A. Yes, I did.
Q. --for that injury?
A. Yes, I did.
Q. And after you had filed a claim for that injury, did you receive any payment for your injuries in that particular accident?
A. Yes, I did.
MR. DOMINIQUE: And, your Honor, I would like to offer into evidence, which has been admitted by the Plaintiff, a copy of the claim for compensation and a copy of the stipulation for compromised settlement which shows that Mr. Lockwood was paid temporary total compensation in the amount of $8,533.12 and that he received as a permanent partial disability payment $21,357 and that the employer/insurer paid medical expenses in the amount of $37,009.31.
....
Q. Mr. Lockwood, since you have filed this suit...
To continue reading
Request your trial
-
Jo Ann Howard & Assocs., P.C. v. Cassity, Case No. 4:09CV01252 ERW.
...duty or negligence claim, a plaintiff is allowed to collect all damages proximately caused by the breach. See Lockwood v. Schreimann, 933 S.W.2d 856, 863 (Mo.Ct.App.1996) ; Zakibe v. Ahrens & McCarron, Inc., 28 S.W.3d 373, 383 (Mo.Ct.App.2000). In a breach of trust, the beneficiary is entit......
-
Johnson v. Armfield
...testimony does not sufficiently establish that Johnson's speed was the proximate cause of her injuries. See Lockwood v. Schreimann, 933 S.W.2d 856, 859 (Mo.Ct.App.1996) (Stating "[t]he causal connection between excessive speed and the collision must be established by the evidence and cannot......
-
Meyers v. Southern Builders
...is preserved for appellate review when a trial court rejects evidence in the absence of an offer of proof. Lockwood v. Schreimann, 933 S.W.2d 856, 862[11] (Mo.App. W.D. 1996). While a narrow exception is spelled out in Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 883-......
-
Ozark Air Lines, Inc. v. Valley Oil Company
...and been released." Id.; see also Norman, 100 S.W.3d at 785 ("Section 537.060 applies to all tort actions."); Lockwood v. Schreimann, 933 S.W.2d 856, 861 (Mo.App. W.D.1996) ("Section 537.060 . . . addresses only actions in tort."). The court specifically held that § 537.060 did not entitle ......