McTeer v. Clarkson Const. Co., Inc.

• Decision Date: 11 April 1991
• Docket Number: No. 16537,16537
• Citation: 807 S.W.2d 174
• Parties: James L. McTEER, Jr., and Daniel L. Richardson, Plaintiffs-Respondents, v. CLARKSON CONSTRUCTION COMPANY, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 174

807 S.W.2d 174

James L. McTEER, Jr., and Daniel L. Richardson, Plaintiffs-Respondents, v. CLARKSON CONSTRUCTION COMPANY, INC., Defendant-Appellant.

No. 16537.

Missouri Court of Appeals,

Southern District,

Division Two.

April 11, 1991.

Mark A. Thornhill, Spencer, Fane, Britt & Browne, Kansas City, for defendant-appellant.

R. Lynn Myers, J.R. Victor, Springfield, for plaintiffs-respondents.

SHRUM, Judge.

On September 26, 1990, this district filed an opinion affirming the judgment. Thereafter, on October 17, 1990, this district denied appellant's motions for rehearing or to transfer to the Supreme Court. Appellant then filed applications for transfer with the Supreme Court. It sustained the applications on November 20, 1990. On April 9, 1991, the Supreme Court entered the following order: "Cause ordered retransferred to the Missouri Court of Appeals, Southern District." With the addition of this paragraph, our initial opinion is readopted. It is set out hereafter.

Plaintiff James McTeer (hereinafter called McTeer) drove his motor vehicle along a construction site, a graveled right-of-way, that was to be "new" highway 160, in Greene County at approximately 3:00 a.m., May 21, 1982, and struck a bridge floor which was approximately 7 1/2 inches above the road bed. Plaintiff Daniel Richardson (hereinafter Richardson) was a passenger in McTeer's automobile at the time of the accident. McTeer and Richardson sustained substantial injuries in the accident. They sued appellant ¹ claiming the road was not reasonably safe for the public and that appellant had failed to warn of such alleged unsafe conditions. Upon trial to a jury, the jury assessed 100 percent of the fault to McTeer and 100 percent of the fault to Richardson. Timely post-trial motions were filed by McTeer and Richardson. The trial court overruled both motions for judgment notwithstanding the verdict but granted both parties' motions for new trial. Appellant appeals from the granting of the motions for new trial. This court affirms.

The trial court sustained McTeer's motion for new trial because of its perceived error in submitting Instruction No. 3. ² In sustaining McTeer's motion for new trial, the court said:

[T]he Court has specifically errored [sic] in submitting Instruction # 3 applying to him [McTeer] a standard of care required of an operator of a motor vehicle upon a public highway, when, in fact, he was operating his automobile upon a roadway under construction which had not been opened to the public. The roadway under construction was a new construction and was not an existing roadway which had been closed for the purpose of construction. The roadway in question had never been a public highway or roadway.

In its first point, appellant claims the trial court erred in granting McTeer a new trial because Instruction No. 3 properly stated the duty of care owed by McTeer in driving on highway 160. At issue is whether the area where this accident happened is a "highway" within the meaning of § 304.010 so that the higher standard of care mandated by that statute is applicable; or, whether, because the road was under construction and had never officially been opened to the public, only ordinary care was required of McTeer in the operation of his motor vehicle. In deciding that issue, this court does not review the trial court's ruling with the oft-repeated statement that the granting of a new trial is discretionary with the trial court. This ruling is one of law, and this court reviews it unhindered by any presumption in favor of correctness. Ely v. Parsons, 399 S.W.2d 613, 615 (Mo.App.1966).

A summary of the evidence as to the status of "new" highway 160 at the time of the accident follows. The highway (8.519 miles in length) was being constructed between interstate 44 and Willard, northwest of Springfield. Shortly before 3:00 a.m., McTeer (with Richardson in the passenger seat) drove north from Springfield on AB highway to "farm road 94" (a dirt or gravel road). He then drove "right" off of AB onto farm road 94 and continued on farm road 94. In doing so, he crossed over "new" highway 160 (old highway 160 was on the other side) and continued traveling on farm road 94 to farm road 115. Farm road 115 was paved and ran "generally" south toward town. McTeer headed south on farm road 115 until it intersected "new" highway 160. McTeer said he saw no barricades or signs across "new" highway 160. ³ He turned right onto "new" highway 160 and drove until the collision with the bridge occurred. It was 2,100 feet from the intersection of farm road 115 to the bridge where the accident happened. ⁴ The bridge had been built approximately a year before the accident. Appellant had laid the base rock "up to the bridge" but had not poured the concrete as of May 21, 1982. State highway engineer Jones testified that "new" highway 160 was not open to the public at the time of the accident. Jones said, "not open to the public" meant "it's not in the system yet at all. Whenever I receive a project it's not in the system, so it's not a public use area at all." ⁵ Sergeant Jack Merrit of the Missouri Highway Patrol investigated the accident. He said "new" highway 160 was under construction and was not open to the public between farm road 115 and the bridge because there were "markings and barricades" in place. ⁶ Richardson lived within viewing distance of the road construction. McTeer and Richardson knew that the construction had been going on for over a year before the accident. No evidence is found in the record of any "premature" use or travel on "new" highway 160 (other than that by McTeer on the night in question).

Section 304.010.1 ⁷ requires drivers on the highways of Missouri to exercise "the highest degree of care." The history of this legislation is traced in Burlingame v. Landis, 362 Mo. 523, 242 S.W.2d 578 (1951). "The phrase 'highest degree of care', as used in the statute ... means 'that degree of care that a very careful and prudent person would ordinarily exercise under the same or similar circumstances.' " Martin v. Turner, 306 S.W.2d 473, 478 (Mo.1957); Schneider v. Bi-State Development Agency, 447 S.W.2d 788, 791 (Mo.App.1969). That definition of "highest degree of care" became so time honored, Hodges v. American Bakeries Company, 412 S.W.2d 157, 161 n. 1 (Mo. banc 1967), that it was the definition mandated by the Supreme Court when pattern instructions were first promulgated. MAI 11.03; MAI 11.08. Also, see Robbins v. United States, 593 F.Supp. 634, 639 (E.D.Mo.1984). The purpose of the law (requiring the exercise of the highest degree of care) is the protection of the life, limb, and property of all persons riding, driving, or otherwise upon the highways. Teters v. Kansas City Public Service Company, 300 S.W.2d 511, 516 (Mo.1957). The statute in question, having been considered by the Missouri appellate courts in a variety of cases, has been broadly construed. Hewitt v. Masters, 386 S.W.2d 9, 12 (Mo.1964). ⁸ "It is the duty of our courts to reasonably interpret Section 304.010 so that the legislature's purpose in enacting that law shall prevail and not so as to defeat the obvious intention of the lawmakers." Hay v. Ham, supra, at 122. In Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065 (1930), a defendant urged error in giving an instruction exacting of him the highest degree of care because he argued there was no evidence that the street on which he was driving was a public highway. The court declined to give the statute such a "strained and narrow" construction and held:

Keeping in mind the purpose of the statute, it is reasonable to conclude that the word "highways" was used in the statute in its popular rather than its technical sense, and was intended to include all highways traveled by the public, regardless of their legal status.

Phillips v. Henson, supra, 30 S.W.2d at 1068.

Cases evidencing a liberal interpretation of the term "highway" in § 304.010.1 include City of Clayton v. Nemours, 353 Mo. 61, 67, 182 S.W.2d 57, 60 (1944) ("The law of the road extends to all public highways, however created, and may also be applicable to roads not public highways, if used for travel." (Emphasis added.)); Bush v. Kansas City Public Service Co., 350 Mo. 876, 884, 169 S.W.2d 331, 335 (1943) (bus driver had duty to exercise highest degree of care to discover traffic on a public street when operating a bus upon private roadway with bus at street line and driver intending to drive it upon a public street); Ely v. Parsons, supra, at 617 (from moment grader left private driveway, he was "on the highway" and owed plaintiff the duty to operate the grader with the highest degree of care); Eoff v. Senter, 317 S.W.2d 666, 671 (Mo.App.1958) (motor vehicle on the shoulder of highway, 15 feet from traveled portion of road, and had not entered private parking lot gate, was "on highway" within meaning of statute).

In addition, appellant vigorously contends that Trantham v. Gillioz, 348 S.W.2d 737 (Mo.App.1961), requires reversal of the granting of the new trial to McTeer. The facts in Trantham and in this case are remarkably similar. Trantham sustained injuries when Trantham's car (being driven by another person with Trantham as a passenger) crashed into a dirt "pad" which extended across the pavement on "new" highway 66 which was then in the process of being constructed. Trantham, supra, at 738-39. ⁹ Barricades, barriers, and signs were in place in an effort to keep people off "new" highway 66. Jury trial resulted in a verdict for Trantham against a construction contractor. This court reversed the judgment, finding that Trantham was contributorily negligent as a matter of law:

Ordinarily a traveler rightfully upon a public highway may, in the absence of any notice to the contrary, assume ... that the way ahead is clear and that it may be safely traveled at a reasonable speed. But this rule does not apply if the traveler knows, or should know, that...