Mayberry v. Clarkson Const. Co.

• Decision Date: 17 July 1972
• Docket Number: No. 2,No. 55596,55596,2
• Citation: 482 S.W.2d 721
• Parties: Lula Irene MAYBERRY et al., Plaintiffs-Respondents, v. CLARKSON CONSTRUCTION COMPANY, Defendant-Appellant
• Court: Missouri Supreme Court

Page 721

482 S.W.2d 721

Lula Irene MAYBERRY et al., Plaintiffs-Respondents, v. CLARKSON CONSTRUCTION COMPANY, Defendant-Appellant.

No. 55596.

Supreme Court of Missouri, Division No. 2.

July 17, 1972.

Robert K. Ball II, Ben W. Swofford, Phillip L. Waisblum, Kansas City, for plaintiffs-respondents; Swofford & Waisblum, Kansas City, of counsel.

Karl F. Schmidt, John E. Morrison, Morrison, Hecker, Cozad, Morrison & Curtis, Kansas City, for defendant-appellant.

HENLEY, Judge.

This is an action by a husband and wife for damages aggregating $80,000 for personal injuries of each and for loss of consortium each allegedly sustained when their automobile left the paved portion of an interchange being constructed by defendant at an intersection of two major highways and plunged into a ditch. Verdict and judgment were for defendant. The trial court sustained plaintiffs' motion and granted them a new trial on the ground of misconduct of a juror and intentional concealment on voir dire by other jurors. Defendant appeals from that order. We affirm, not for the reasons assigned by the trial court, but for error in the giving of an instruction.

Plaintiffs' petition is in two counts. Count I is for Mrs. Mayberry's damages for (1) her injuries, and (2) her loss of consortium of Mr. Mayberry as a result of his injuries. Count II is for Mr. Mayberry's damages for (1) his injuries, and (2) his loss of consortium of Mrs. Mayberry as a result of her injuries. The petition alleges that on and prior to the date of the accident (November 26, 1965) defendant, under a contract with the State Highway Commission, was engaged in the construction of new U.S. 71 By-pass (hereinafter I--470) south of its intersection with U.S. Highway 40 (hereinafter Highway 40) and an on-ramp for east-bound traffic leaving Highway 40 to travel south on I--470; that at their intersection, I--470, a four-lane divided highway running generally north-south, crosses Highway 40, an east-west four-lane divided highway, above the grade of the latter; that immediately north of the intersection, I--470 and an off-ramp for its south-bound traffic is partially completed and open to traffic; that south-bound traffic desiring to reach old 71 By-pass south of the intersection must take the off-ramp at this point, cross the two north lanes and median strip of Highway 40 and turn left onto its two south lanes for east-bound traffic; that on and prior to the date of this accident defendant was preparing the area immediately south of Highway 40 and west of I--470 for the construction of the on-ramp leading from the east-bound lanes of Highway 40 to I--470, and in the process of preparation had cut back and away a rock bluff and was leveling and grading the right-of-way area and roadbed for the on-ramp; that a hole was excavated in this area on the south side of and adjacent to Highway 40 which was directly in front of vehicles traveling south on the off-ramp; that this hole constituted a dangerous hazard to south-bound motorists on the I--470 off-ramp who desired to reach and continue south on old 71 By-pass; that on the date mentioned Mr. Mayberry, with Mrs. Mayberry as his passenger, drove south down the off-ramp, crossed Highway 40, and, as a result of the negligence of defendant, plunged into this hole. The negligence pleaded and submitted was that defendant created or maintained the hole and failed to exercise ordinary care to barricade it or warn south-bound motorists of its existence and danger.

Defendant contends the court erred in granting plaintiffs a new trial on the ground of misconduct of jurors because (1) the evidence on which the court based that ruling, admitted over defendant's objection, came from members of the jury who may not be heard to impeach their verdict, and the evidence was, therefore, inadmissible and the court erred in admitting it; (2) the alleged misconduct of the jurors was not shown to have been prejudicial to plaintiffs; and (3) the testimony of the jurors, other than those alleged to have engaged in misconduct was hearsay and, therefore, inadmissible. Defendant also contends that the court erred in failing to direct a verdict in its favor, because (1) plaintiffs failed to plead or prove that defendant was legally obligated to place a barricade at the point where their automobile left the highway or warn them of the alleged danger; (2) plaintiffs failed to prove that defendant's acts or omissions were the proximate cause of their injuries; and (3) plaintiff Luther Mayberry was guilty of contributory negligence as a matter of law.

We consider the second contention first. There was substantial evidence from which the following could be found as fact. On the morning of November 26, 1965, at about 5 o'clock, before daylight, Mr. and Mrs. Mayberry were returning from a visit in Minnesota to their home at Louisburg, Missouri, driving south on I--470. Mr. Mayberry was driving; Mrs. Mayberry asleep. As they approached the overpass across Highway 40, Mr. Mayberry saw ahead a barrel-type barricade extending across the roadway north of the overpass with arrows directing traffic to turn off to the right down a ramp. He reduced his speed to 25 or 30 miles per hour by the time he reached the ramp, drove onto the ramp, continued to reduce his speed, and was traveling 10 or 12 miles per hour when he reached the north edge of Highway 40. As he proceeded down the ramp he saw that the intersection was controlled by an overhead traffic signal light, that the light was green for south-bound traffic, and a highway sign on the right indicated by an arrow that old 71 By-pass was straight ahead. He turned his lights on lowbeam and, looking ahead, saw, when he reached the bottom of the ramp, what appeared to him to be an area directly across Highway 40 where old 71 By-pass continued straight ahead to the south. After reaching the north lanes of Highway 40, he accelerated his speed and continued straight ahead, but as he was about to cross the south lanes he realized, too late, that what he had seen before was deceptive, that old 71 By-pass did not continue directly ahead, but that that area was under construction. He immediately applied his brakes and turned left, but the momentum of his automobile carried it off the highway, across the shoulder, and into the hole causing injuries to Mrs. Mayberry and him.

There was also substantial evidence from which the following could be found as fact. That the hole excavated south of the shoulder of Highway 40 was created by defendant to facilitate its preparation of the right-of-way and the construction of the on-ramp; that the hole is dangerous and the physical makeup of the area as viewed by a south-bound traveler at night is highly deceptive and, therefore, hazardous to a motorist seeking the continuation of old 71 By-pass south; that defendant knew or should have known of this hazard through the occurrence of several recent accidents (beginning November 21, 1965) in which other south-bound motorists ran off the highway and into this hole; that the situation as it existed at this interchange reasonably required that a barricade be erected at this point or other signs be posted timely warning the traveling public that the highway did not continue straight ahead to the south at this point, as it appeared, but that south-bound motorists had to make a sharp turn to their left, and the danger thereof; that defendant could have under its contract with the Highway Commission, and should have, erected a movable barricade with flashing lights for nighttime warning on or near the south shoulder of Highway 40 opposite the end of the I--470 off-ramp, and could and should have installed other warning devices within the interchange, but negligently failed to do so.

The recitation of the facts which could have been found demonstrates that the court did not err in failing to direct a verdict for defendant for any of the reasons it relied upon. Treon v. City of Hamilton, Mo., 363 S.W.2d 704; Eidson v. Dean Construction Co., Mo.App., 233 S.W.2d 820, 824(8, 9).

We consider next defendant's contention that the court erred and abused its discretion in granting plaintiffs a new trial on the ground that certain jurors were guilty of misconduct. Briefly, there was evidence and offers of proof by plaintiffs, the substance of which was (1) that two jurors failed to answer truthfully questions on voir dire as to their qualifications, and (2) that after the jury had retired to deliberate, one juror went to the scene of the accident during a recess, took measurements and made certain experiments, and furnished the information thus acquired to his fellow jurors on their return to the jury room. This evidence, relied upon by plaintiffs to support the court's action, came from jurors over defendant's objection. The evidence was inadmissible, because a juror may not, over objection, be heard to impeach his and the jury's verdict. The court erred in admitting the evidence, should not have considered it, and, therefore, abused its discretion in...