Messina v. Prather
| Decision Date | 06 February 2001 |
| Docket Number | No. WD 57917.,WD 57917. |
| Citation | 42 S.W.3d 753 |
| Parties | Teresa MESSINA, Respondent, v. Billie Ann PRATHER, Appellant. |
| Court | Missouri Court of Appeals |
David Roy Buchanan, Michael A. Childs, Dennis J. Cassidy Kansas City, for appellant.
Sandra Carol Midkiff, Kansas City, for respondent.
Before LOWENSTEIN, P.J., ULRICH, J. and HOWARD, J.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 27, 2001.
Billie Ann Prather appeals from the judgment of the trial court, following a jury trial, in favor of Teresa Messina on her claim for damages for injuries sustained in an automobile accident. Ms. Prather asserts that the trial court erred in (1) refusing to submit jury instruction A, tendered by Ms. Prather as an affirmative defense instruction; (2) admitting the testimony of Ms. Messina's accident reconstructionist expert; (3) refusing to remit the damages awarded to Ms. Messina; (4) denying Ms. Prather's motion for a new trial; (5) admitting the testimony of Ms. Messina's niece regarding lost wages; and (6) denying Ms Prather's motions for a directed verdict and judgment notwithstanding the verdict. The judgment of the trial court is affirmed.
I. Facts
The pedestrian/vehicle accident occurred on May 3, 1995, at the intersection of Independence Avenue, which runs east and west with two lanes of traffic traveling in each direction, and Charlotte Street, which runs north and south. Teresa Messina, a 59-year-old factory worker, was enroute to her job at Bell Art, which is located in the Kansas City East Bottoms, when she was struck by a vehicle driven by Billie Ann Prather. Ms. Messina had taken a bus from her home to a bus stop near her employment. From the bus stop, Ms. Messina walked toward her place of work. She walked north on Charlotte Street, and when she reached Independence Avenue she looked to the traffic light for guidance since no pedestrian control signals existed. Seeing that the light was green for her direction of travel, she then started across Independence Avenue in the pedestrian crosswalk on the east side of Independence Avenue. While crossing Independence Avenue she saw the traffic control light change to yellow, and she stopped in the middle of the avenue to allow two vehicles traveling westbound in the lane closest to the centerline to pass through the intersection. Afterthe cars passed, Ms. Messina continued across the street. When she reached the last lane, she saw a car driving westbound in the same lane she was attempting to cross. She was struck by the vehicle while hurrying to get to the curb on the north side of the avenue. Billie Ann Prather was driving the vehicle when it struck Ms. Messina a few feet from the curb.
When struck, Ms. Messina was flipped up onto the hood of the car by the impact and her shoulder struck the windshield. She then rolled off the car and onto the street. As a result of the accident, Ms. Messina suffered various bruises and contusions about her body. Her most significant injury resulting from the accident was to her right shoulder. She was also diagnosed as having tendinitis in her right rotator cuff as well as traumatic myofascitis (tenderness of the muscles about the shoulder). After the accident, Ms. Messina was unable to continue her employment with Bell Art. She offered evidence that as a result of the accident she is also no longer able to enjoy and engage in many of her life activities and hobbies such as housework, ironing, yardwork, cleaning, sewing crocheting, knitting, cooking, and gardening.
Ms. Messina filed a petition for damages against Ms. Prather alleging negligence in several respects. Ms. Prather countered by claiming that Ms. Messina was contributorily negligent. The case was tried to a jury in September 1999. The jury returned a verdict finding Ms. Prather 100 percent at fault and awarded Ms. Messina damages in the amount of $230,431.00. This appeal followed.
In her first point on appeal, Ms. Prather contends that the trial court erred in refusing to submit jury instruction A, tendered by her as an affirmitive defense instruction. Instruction A provided:
In your verdict you must assess a percentage of fault to plaintiff if you believe:
First, either:
plaintiff failed to keep a careful lookout, or
plaintiff violated the traffic signal, or
plaintiff knew or by the use of ordinary care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped but plaintiff failed to do so, and
Second plaintiff, in any one or more of the respects submitted in Paragraph First, was thereby negligent, and
Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.
After Ms. Messina objected, the court refused this proposed instruction but submitted to the jury Instruction No. 10, a modified version of the proposed instruction which provided:
In your verdict you must assess a percentage of fault to plaintiff if you believe:
First, either:
plaintiff failed to keep a careful lookout, or
plaintiff knew or by the use of ordinary care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped but plaintiff failed to do so, and
Second, plaintiff, in any one or more of the respects submitted in Paragraph First, was thereby negligent, and
Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.
This modified version of the instruction is nearly identical to the original proposedinstruction with the exception that the phrase "plaintiff violated the traffic signal" was removed from the proposed instruction. Ms. Prather contends it was error to remove this phrase from the instruction.
Before a jury instruction is given, substantial evidence supporting the issue submitted must have been presented. Griffin v. Kansas City Southern Railway Co., 965 S.W.2d 458, 462 (Mo.App. W.D. 1998); Lush v. Woods, 978 S.W.2d 521, 523 (Mo.App. W.D.1998); State v. Hall, 779 S.W.2d 293, 295 (Mo.App. W.D. 1989). Where, as here, an instruction is disjunctive, all submissions must be supported by substantial evidence. Griffin, 965 S.W.2d at 462(quoting Elfrink v. Burlington Northern R.R., 845 S.W.2d 607, 611 (Mo. App. E.D.1992)). "Substantial evidence is competent evidence from which a trier of fact can reasonably decide the case." Id. (quoting Mathis v. Jones Store Co., 952 S.W.2d 360, 366 (Mo.App. W.D.1997)). Speculative deductions and conclusions are insufficient to support the submission of an instruction to the jury. Lush, 978 S.W.2d at 523.
The trial court found in this case that no evidence supported the claim that Ms. Messina violated the traffic signal and, therefore, the court omitted from the proffered verdict directing instruction the phrase "plaintiff violated the traffic signal." Ms. Prather argues that sufficient evidence was presented at trial to support the proposed instruction and from which a reasonable juror could have determined that Ms. Messina violated the Charlotte Street traffic signal, and, therefore, the jury should have been instructed in accordance with the tendered jury instruction A. She contends that calculations using the duration of the yellow light, Ms. Messina's walking speed, the point at which Ms. Messina stopped in the intersection, and the distance Ms. Messina traveled before she stopped, provide sufficient evidence by which a reasonable juror could have found that Ms. Messina entered the intersection on a yellow light and thereby violated the traffic signal. Specifically, Ms. Prather's theory asserts that Ms. Messina entered the intersection, walked to the middle of the second lane at a speed of 5.6 feet per second, and then stopped to let oncoming traffic pass. Ms. Prather claims that at this point the light had to have been red for Ms. Messina because a reasonable inference is that westbound traffic on Independence Avenue would not have been passing through the intersection without a green light. Ms. Prather's theory works backwards from the traffic control light facing Charlotte street on the north side of Independence Avenue showing red. She posits that because the Charlotte Street light remains yellow for 3.6 seconds and only 3.21 seconds were required for Ms. Messina to cross one and one half lanes, Ms. Messina must have entered the intersection when the traffic control light facing her was showing yellow. Ms. Prather's argument, however, is based on three assumptions that are not supported by evidence in the record and is, therefore, speculative and conjectural.
First, this argument assumes that Ms. Messina traversed the avenue at a constant speed in lanes one and two as she did while attempting to avoid being struck by Ms. Prather in lane four. The only evidence offered regarding Ms. Messina's walking speed was that elicited from Officer Schultz, the accident reconstructionist. He testified as to what Ms. Messina's walking speed might have been in lane four as she attempted to get out of the way of the oncoming vehicle. He did not offer any testimony as to what Ms. Messina's rate of movement was or may have been as she crossed the first two lanes of traffic. Additionally, his testimony was not directlybased on the evidence in this case but instead was based on a study done in England using subjects merely the same age as Ms. Messina.
Secondly Ms. Prather's argument assumes that Ms. Messina stopped in the middle of the second lane, instead of the middle of Independence Avenue, to allow two westbound vehicles traveling in lane three to pass before she continued on through the intersection. The only evidence presented as to Ms. Messina's exact stopping point is from her own testimony. She testified that she stopped "in the middle of the street."...
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