McJunkins v. Windham Power Lifts, Inc.

• Decision Date: 27 February 1989
• Docket Number: 15496,Nos. 15482,s. 15482
• Citation: 767 S.W.2d 95
• Parties: Prod.Liab.Rep. (CCH) P 12,127 Patricia Leah McJUNKINS and Steven McJunkins, Plaintiffs-Respondents-Cross-Appellants, v. WINDHAM POWER LIFTS, INC., Defendant-Appellant-Cross-Respondent, and E.A. Martin Machinery Company, Defendant-Respondent-Cross-Respondent.
• Court: Missouri Court of Appeals

Page 95

767 S.W.2d 95

Prod.Liab.Rep. (CCH) P 12,127

Patricia Leah McJUNKINS and Steven McJunkins Plaintiffs-Respondents-Cross-Appellants, v. WINDHAM POWER LIFTS, INC., Defendant-Appellant-Cross-Respondent and E.A. Martin Machinery Company, Defendant-Respondent-Cross-Respondent.

Nos. 15482, 15496.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 27, 1989.

Motion for Rehearing and/or Transfer

to Supreme Court Denied

March 21, 1989.

Application to Transfer Denied April 18, 1989.

B.H. Clampett, M. Douglas Harpool, Timothy E. Gammon, Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, Larry Bratvold, Springfield, for plaintiffs-respondents-cross-appellants.

Jeffrey H. Harrison, David A. Geisler, William C. Love, Harrison, Tucker, Geisler & Hyde, Springfield, for defendant-appellant-cross-respondent.

Glenn A. Burkart, Mann, Walter, Burkart, Weathers & Walter, Springfield, for defendant-respondent-cross-respondent.

PREWITT, Presiding Judge.

Plaintiffs sought damages, based on strict liability in tort, against the manufacturer and seller of a forklift for bodily injuries to plaintiff Patricia Leah McJunkins. A jury returned a verdict in favor of defendants. Plaintiffs then filed a motion for a new trial as to both defendants. On November 3, 1987, the trial court overruled the motion as to defendant E.A. Martin Machinery Company but ordered a new trial on plaintiffs' claim against defendant Windham Power Lifts, Inc. On November 10, 1987, Windham filed a notice of appeal from the order granting a new trial and on November 17, 1987, plaintiffs filed a "Notice of Cross-Appeal". Thereafter, respondent E.A. Martin Machinery Company filed a motion to dismiss plaintiffs' appeal on the ground that it could not be a cross-appeal as to Martin since Martin did not initially appeal. That motion, taken with the case, is now denied for the reasons hereafter set out.

Rule 81.04 provides when and how appeals may be taken. It states in part:

"(b) Cross Appeals. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten days of the date the first notice of appeal was filed."

This rule is very similar to Rule 4(a)(3) of the Federal Rules of Appellate Procedure which states:

(3) If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires.

When a Missouri rule is practically the same as a federal rule, it is appropriate to use federal precedents as a guide to the application of the Missouri rule. Kingsley v. Burack, 536 S.W.2d 7, 11 (Mo. banc 1976). See also State ex rel. Kincannon v. Schoenlaub, 521 S.W.2d 391, 394 (Mo. banc 1975) (although not controlling, federal decisions construing rules similar to Missouri rules should be considered).

Martin contends that the rule "contemplates the prior filing of a timely notice of appeal by the party against whom the cross appeal is taken." Literally the rule allows "any other party" to appeal within ten days from the date a party files the first notice of appeal. There is no requirement that the party against whom the latter appeal is directed be the party filing the initial notice of appeal. The rule does not so limit the second appealing party and is not to be applied in such a narrow manner. See Jackson Jordan, Inc. v. Plasser American Corp., 725 F.2d 1373 (Fed.Cir.1984) and authorities there discussed.

The cases from other jurisdictions relied on by Martin, Maxwell v. Aetna Life Ins. Co., 128 Ariz. 350, 625 P.2d 939 (App.1981); Fisher v. Mission Viejo Co., 148 Ariz. 357, 714 P.2d 850 (App.1985); Johnson v. Tri-Union Oil & Gas Co., 278 Ky. 633, 129 S.W.2d 111 (App.1939), and Christensen v. Gensman, 53 Wash.2d 313, 333 P.2d 658 (1958), are not persuasive. They are from states with rules significantly different than the Missouri rule in question. Plaintiffs were entitled to appeal within ten days after any party filed a notice of appeal.

Plaintiff Patricia Leah McJunkins received serious injuries when she was struck by the forklift. She had left the building where she was employed to have lunch with her husband in his pickup and was returning to work when she was struck while crossing a roadway. Plaintiffs claim that the forklift was improperly designed because the design impaired the visibility of the operator as his vision was obstructed by the center hydraulic cylinder. Plaintiffs also offered evidence that the design was defective because it did not provide for certain safety features including amber beacon lights, a horn, an automatic high pitch pulsating pedestrian alarm and outboard mirrors to extend visibility. At the time Patricia McJunkins was struck, the forklift was being operated by Larry Newton and Denzil Matney was riding upon it as part of his training to operate it. Other evidence will be mentioned in discussing the parties' contentions.

The first point we discuss is the contention of plaintiffs that they are entitled to a new trial against both defendants because evidence was admitted that the forklift had not been involved in any accidents either before or after it struck Patricia McJunkins. ¹ Both defendants urged the trial court to admit this evidence. Larry Newton, the driver of the forklift testified that he had not struck any other pedestrians with it. Denzil Matney, the passenger on the forklift, testified that he had not hit anyone when he drove it. Plaintiff's expert was asked during cross-examination if he saw anyone run over by the forklift when he visited the scene of the collision. Reference to the lack of other accidents was mentioned by both defendants in their opening statements and closing arguments.

During Newton's testimony, the initial attempt to admit the evidence, timely objections were made by plaintiffs, but not later. However, once a "timely and sufficient objection has been squarely made, it is not necessary to follow up with repeated objections in order to preserve the point." Chester v. Shockley, 304 S.W.2d 831, 835 (Mo.App.1957).

The briefs of the parties confine their authorities on this issue to Missouri cases. Unfortunately, those cases give little guidance. They indicate that although the general rule is that proof of the absence of other accidents is not admissible because it raises collateral issues which have a tendency to confuse and mislead the jury, there is no "absolute rule" and much is left to the discretion of the trial court. Welkener v. Kirkwood Drug Store Co., 734 S.W.2d 233, 244-245 (Mo.App.1987); Siebern v. Missouri-Illinois Tractor & Equipment Co., 711 S.W.2d 935, 940-941 (Mo.App.1986).

Welkener upheld the denial of evidence of any prior accidents involving crutches manufactured by the third-party defendant. Siebern upheld the trial court allowing evidence that a certain model of a front end coal loader had not been involved in any other roll overs or fatalities. The defendants' theory was that the coal loader could not roll over and the court held that this evidence "tends to support defendants' theory that the non-occurrence of roll over proves impossibility of roll over. Hence, absence of defect. The evidence is secondary to expert opinion that the dozer could not roll over." 711 S.W.2d at 941. The court determined that such evidence neither raised a collateral issue nor would confuse the jury and was relevant because if accepted by the jury the evidence "affirmatively proves safe design." Id.

In Kraus v. Auxvasse Stone & Gravel Company, 444 S.W.2d 434, 436-437 (Mo.1969), a negligence action, a man was injured when a beam being hoisted so that it could be lowered vertically, slipped from a cable and struck him. It was held that evidence that for over a two-month period hundreds of beams had been so lifted and had not dropped, "was not entirely irrelevant, it may have related however to a collateral matter and in the circumstances of this case was not so manifestly inflammatory or prejudicial as to demand the granting of a new trial by this court." 444 S.W.2d at 437. No abuse of discretion was found in the trial court allowing an employee of the defendant to testify that there had been no other fires from a failure in the model of a television set in question. Riney v. Zenith Radio Corp., 668 S.W.2d 610, 611 (Mo.App.1984). See also Dill v. Dallas County Farmers' Exchange No. 177, 267 S.W.2d 677, 681 (Mo.1954) ("testimony that no other invitee had ever fallen in defendant's store would tend to confuse the issues and would not reasonably tend to show the floor was not reasonably safe when plaintiff fell.").

According to McCormick the recent trend is toward admissibility of proof of the absence of other accidents to show:

(1) absence of the defect or condition alleged, (2) the lack of a causal relationship between the injury and the defect or condition charged, (3) the nonexistence of an unduly dangerous situation, or (4) want of knowledge (or of grounds to realize) the danger.

McCormick on Evidence, § 200, pp. 591-592 (3d ed. 1984). ²

A line of cases reflecting this trend include Koloda v. Gen. Motors Parts Div., Gen. Motors Corp., 716 F.2d 373 (6th Cir.1983); Jones v. Pak-Mor Mfg., 145 Ariz. 121, 700 P.2d 819, cert. denied, 474 U.S. 948, 106 S.Ct. 314, 88 L.Ed.2d 295 (1985); Boy v. I.T.T. Grinnell Corp., 150 Ariz. 526, 724 P.2d 612 (App.1986); Schaffner v. Chicago & North Western Tr., 161 Ill.App.3d 742, 113 Ill.Dec. 489, 515 N.E.2d 298 (1987); Salvi v. Montgomery Ward & Co., 140 Ill.App.3d 896, 95 Ill.Dec. 173, 489 N.E.2d 394 (1986); Leischner v. Deere & Co., 127 Ill.App.3d 175, 82 Ill.Dec. 120, 468 N.E.2d 182 (1984); Foster v. Marshall, 341 So.2d 1354 (La.App.1977); Stanley v. Schiavi Mobile Homes, Inc., 462 A.2d 1144 (Me.1983); Payson v. Bombardier, Ltd., 435 A.2d 411 (Me.1981); Belfry v. Anthony Pools, Inc., 80 Mich.App. 118, 262...