Morrison v. Ted Wilkerson, Inc.

• Decision Date: 24 August 1971
• Docket Number: 18886-3.,Civ. A. No. 18618-3
• Citation: 343 F. Supp. 1319
• Court: U.S. District Court — Western District of Missouri
• Parties: William MORRISON et ux., Plaintiffs, v. TED WILKERSON, INC., Defendant.

343 F. Supp. 1319

William MORRISON et ux., Plaintiffs, v. TED WILKERSON, INC., Defendant.

Civ. A. Nos. 18618-3, 18886-3.

United States District Court, W. D. Missouri, W. D.

August 20, 1971.

As Amended August 24, 1971.

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Alvin D. Shapiro, John M. Edgar, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., for plaintiffs.

Reed O. Gentry, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, Mo., for defendant.

ORDER DENYING DEFENDANT'S ALTERNATIVE MOTIONS FOR JUDGMENT IN ACCORDANCE WITH THE MOTION FOR DIRECTED VERDICT AND FOR NEW TRIAL

WILLIAM H. BECKER, Chief Judge.

These are consolidated actions tried simultaneously before a jury under the diversity statute, Section 1332, Title 28, United States Code, in which plaintiff William Morrison sought damages for injuries suffered by him as the result of an accident on July 15, 1970, allegedly caused by defendant's "negligently and carelessly" blocking Interstate Route No. 35 in Clay County, Missouri, while performing road construction. In Civil Action No. 18886-3, Judith K. Morrison asserted her claim for damages including her loss of consortium claim against defendant. The two actions were consolidated for trial and the trial resulted in a jury verdict on March 15, 1971, for William Morrison in Civil Action No. 18618-3 in the sum of $40,000 and for Judith K. Morrison in Civil Action No. 18886-3 in the sum of $20,000.

On March 25, 1971, defendant filed motions "to set aside verdicts and judgments and to enter judgments for defendant on Count I in accordance with defendant's motion for directed verdict" and a motion for new trial in both causes.

In support of the motion for judgment in Count I (the negligence claim of Plaintiff William Morrison), defendant states as follows:

"1. Under the law and all of the evidence, the plaintiffs failed to prove that the defendant negligently and carelessly blocked the highway as alleged in Count I of the complaints.

"2. Under the law and all of the evidence the plaintiffs failed to prove that the defendant negligently failed to warn of any dangerous condition of the roadway.

"3. Under the law and all of the evidence plaintiffs failed to prove that either of the aforesaid plaintiffs were damaged as a result of any negligence of the defendant.

"4. Under the law and all of the evidence plaintiffs have proven that the plaintiff William Morrison was negligent as a matter of law in driving at an excessive speed, in failing to keep a careful lookout and in failing to stop his motor vehicle.

"5. Under the law and all of the evidence plaintiffs have failed to prove any facts which entitle them to relief under either of said Counts I of plaintiffs' complaints."

None of the contentions numbered 1, 2, 3, 4 and 5 can be sustained. There was ample evidence admitted during the trial of this cause from which the jury could have concluded, as they did, that defendant failed to use reasonable care in maintaining adequate warning signals while performing construction work on a public highway. See Ferguson v. Ben M. Hogan Co. (W.D.Ark.) 307 F.Supp. 658. The function of the Court in reviewing the evidence on a motion for judgment notwithstanding the verdict is restricted. "In making this determination, the evidence together with all reasonable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party." Giordano v. Lee (C. A.8) 434 F.2d 1227; Simpson v. Skelly Oil Company (C.A.8) 371 F.2d 563, 567; Altrichter v. Shell Oil Co. (C.A.8) 263 F.2d 377, 380. "A directed verdict is in order only where the evidence points all one way and is susceptible of no reasonable inferences sustaining the position of the nonmoving party." (Emphasis in original.) Giordano v. Lee, supra, 434 F.2d at 1231, and cases there cited. Applying those principles, the Court concludes that the contentions that the evidence was insufficient are without merit.

Defendant contends under contention numbered 4 that plaintiff William Morrison "was negligent as a matter of law in driving at an excessive speed, in failing to keep a careful lookout and in failing to stop his motor vehicle." In support of this contention, defendant states as follows:

"Under all the testimony by which plaintiffs were bound it was established conclusively that:

(a) William Morrison had the ability to see the barrels from a distance of 500 feet; and

(b) Even though there was no interference with his vision he did not see the barrels until he was within 200-250 feet; and

(c) At all times he had the ability to stop with safety within 350 feet; and

(d) He offered no excuse for his failure to see the barrels within the distance in which he could safely stop.

"Under these circumstances it was negligence as a matter of law for the plaintiff not to see the barrels until he was within 200 or 250 feet from them and it was further negligence as a matter of law for the plaintiff not to bring his vehicle to a stop.

* * * * * *

"Thus, when the physical facts presented in evidence by plaintiff established that the barrels were visible from a distance of 500 feet and when the plaintiff testified that he had the ability to bring his vehicle to a stop with safety within 350 feet—and when he admitted that there was nothing to interfere with his vision for at least 350 feet, he is bound by such testimony and his failure to see that which was `plainly visible' constituted contributory negligence as a matter of law."

Defendant relies on the case of Adkins v. Boss, Mo., 290 S.W.2d 139, recognizing the principle "that a plaintiff is bound by his own testimony." 290 S.W.2d at 140. That case also recognized the principle, however, that:

"In determining the question whether a plaintiff was contributorily negligent as a matter of law, we bear in mind that plaintiff's negligence is a jury question, unless it may be said from all the evidence and the reasonable inferences therefrom, viewed in the light most favorable to plaintiff, the only reasonable conclusion is that plaintiff was negligent and that his negligence was a proximate cause of his injury." Id.

Even if plaintiff is, as defendant contends, bound by his testimony that, under normal conditions, he could see for a distance of 500 feet, there is no evidence, by plaintiff's testimony or otherwise, which would support the conclusion that plaintiff William Morrison could necessarily see the barrels with which he collided from a distance of 500 feet.^a1 Plaintiff testified that there were intermediate interferences with his vision and that he did not see the barrels until it was impossible for him to avoid them. Viewing this testimony most favorably to him, the Court concludes that this contention must also be denied. It provides no basis for entering a judgment notwithstanding the verdict. See Simpson v. Skelly Oil Company, supra, 371 F.2d at 566-567, to the following effect:

"There is a difference in the function of a judge when he is ruling on a motion for a directed verdict or a judgment n. o. v. and when he passes on a motion for a new trial. Williams v. Nichols, 266 F.2d 389, 393 (4th Cir. 1959). In the former instance, it is his duty to accept the plaintiff's version as true for the purposes of the motion, notwithstanding the existence of strong testimony to the contrary; the judge is not concerned with the weight of the evidence. On the motion for new trial, however, he has wider, though not unlimited, latitude and he may set the verdict aside where it is against the weight of the evidence, or to prevent injustice. McCracken v. Richmond, F. & P. R. R., 240 F.2d 484, 488 (4th Cir. 1957). The standard applicable to consideration and disposition of a motion for a directed verdict or for a judgment n. o. v. is whether plaintiff's evidence is sufficient to support a burden, ignoring defendant's evidence. Williams v. Nichols, supra, 266 F.2d at 393."

In the case at bar, the evidence of negligence and the lack of evidence of contributory negligence does not justify either the granting of a motion for judgment notwithstanding the verdict or the granting of a new trial.¹ The evidence heard by the jury gives reasonable support to the conclusion that plaintiff William Morrison was confronted by an unanticipated danger when it was too late to avoid it.²

Under both federal and Missouri state standards, before a verdict may be directed against a plaintiff on the issue of contributory negligence, the Court must find that the defendant has met the burden of proving that the plaintiff is guilty of negligence as a matter of law and further that the alleged negligence of plaintiff was a proximate cause of his damages as a matter of law. In this case there was a jury question both on the issue of the negligence of plaintiff William Morrison and the issue of proximate causal relation of that alleged negligence to the collision and damages of plaintiffs. It is unnecessary to determine whether the contributory negligence of plaintiff William Morrison would bar recovery by plaintiff Judith Morrison for part or all the damages awarded her. On this subject see Huff v. Trowbridge, Mo., 439 S.W.2d 493 at page 498 and authorities therein cited.

For the foregoing reasons, it is concluded that defendant's motion for judgment in accordance with its motion for directed verdict should be denied.

Defendant has alternatively moved for a new trial, stating the following in support:

"1. The Court erred in admitting into evidence over the objection and exception of defendant, testimony of warning signs placed by defendant at a bridge constructed by defendant in the area of Hickman Mills, Jackson County, Missouri for the reason that such testimony was not material or relevant to any of the issues in controversy; did not prove or tend to establish any of the issues in the instant claims; and was prejudicial to defendant.

"2. The Court erred in admitting into evidence over the objection and

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