Powell v. Norman Lines, Inc.

• Decision Date: 12 June 1984
• Docket Number: Nos. 46636,46637,s. 46636
• Citation: 674 S.W.2d 191
• Parties: Marlowe POWELL, Plaintiff-Respondent, v. NORMAN LINES, INC., Defendant-Appellant, and Bi-State Development Agency, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 191

674 S.W.2d 191

Marlowe POWELL, Plaintiff-Respondent, v. NORMAN LINES, INC., Defendant-Appellant and Bi-State Development Agency, Defendant-Appellant.

Nos. 46636, 46637.

Missouri Court of Appeals,

Eastern District,

Division Two.

June 12, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

July 12, 1984.

Application to Transfer Denied

Sept. 11, 1984.

Brown, James & Rabbitt, Gray & Ritter, St. Louis, for defendants-appellants.

Myron S. Zwibelman, St. Louis, for plaintiff-respondent.

PUDLOWSKI, Judge.

Respondent Marlowe Powell brought this action for damages arising out of a collision between a tractor trailer owned by appellant Norman Lines, Inc. and a bus owned by appellant Bi-State Development Agency. Bi-State and Norman Lines both filed cross claims for apportionment of fault. Bi-State also filed a cross claim for property damage done to its bus. The trial court sitting with a jury returned a verdict in favor of Marlowe Powell in the sum of $13,500.00 apportioned equally between the two appellants. The jury also returned a verdict in favor of Norman Lines on Bi-State's cross claim for property damages. We affirm.

The collision which is the subject matter of this action occurred on January 30, 1979 at the intersection of St. Louis Avenue and Kingshighway in the City of St. Louis. At the time of the collision, Norman Lines' truck was traveling south on Kingshighway and was driven by Darren Mask. Bi-State's bus was traveling east on St. Louis Avenue and was driven by Alfred Brame. Respondent Marlowe Powell, a passenger on the bus, brought suit for personal injuries which he sustained as a result of the collision.

At the trial, Alfred Brame, the bus driver, testified that just prior to the accident he had stopped because the light for St. Louis Avenue was red. At this time, Mr. Brame first noticed Norman Lines' truck which was about one block north of the intersection. When the light for St. Louis Avenue turned green, Mr. Brame testified that he started into the intersection. At this time, he testified that he looked to his left and saw the truck 150-200 feet away moving at 50 m.p.h. Witnesses Yvonne Bowers and Nathaniel Cunningham testified that the speed of Norman Lines' truck was between 40-50 m.p.h.

Darren Mask, the truck driver, testified that he first noticed the Kingshighway traffic light when he was one half to one third of a block away from the intersection. He testified he was traveling around 15-20 m.p.h. The light then was green. Mr. Mask further testified that the light changed from green to yellow when he was 15 feet from the intersection. He decided to blow the truck's horn and go through the intersection.

Joe Anderson, a witness to the accident, was driving a station wagon and was stopped at the intersection alongside of the Bi-State bus. When the St. Louis Avenue light turned green, Mr. Anderson testified that he and the bus started to pull into the intersection. Mr. Anderson further testified that he heard the truck's horn and was able to stop, however, the bus which had moved farther into the intersection was struck by the truck. He testified the truck was traveling 35-40 m.p.h.

Charles Buchanan, another witness to the accident, was also a passenger on the Bi-State bus. Mr. Buchanan was involved in a separate action against Bi-State arising out of the same collision. His deposed testimony was read into the record over Bi-State's objection by Norman Lines' counsel.

Mr. Buchanan was seated in the bus at a window seat on the bus driver's side. He testified he was able to see the light which was located on the northwest corner of the intersection and that he could see the condition of the light which controlled both traffic on Kingshighway and on St. Louis Avenue. When he boarded the bus, the light for eastbound traffic on St. Louis Avenue was red. Mr. Buchanan first saw the truck when it was coming past the liquor store which sits on the northeast corner of the intersection. When he observed that the truck was going to run the red light, he looked at the bus driver and it appeared to him that the driver was looking straight ahead. It was Mr. Buchanan's opinion that the bus driver was anticipating a green light and had entered the intersection by approximately five feet before the eastbound light for St. Louis Avenue turned green.

In rebuttal, the trial court refused to permit Bi-State to introduce a tape and transcript of a conversation between Mr. Buchanan and its representative. Bi-State sought to introduce this evidence to impeach the statements made by Mr. Buchanan in his deposition.

In support of its cross claim for damage to its bus, Bi-State called Ralph Goesmann, an accident estimator for Bi-State. Mr. Goesmann testified that as a result of the collision, the bus had depreciated in value by $10,481.00. Over Bi-State's objection, the trial court permitted Norman Lines' counsel to cross-examine Mr. Goesmann regarding the number of accidents Bi-State's buses have in a week's time and the number of accidents their vehicles have in the course of a year.

Bi-State also called George Brown, an employee of the City of St. Louis Street Department. Mr. Brown testified that the intersection of St. Louis Avenue and Kingshighway was controlled by electric signals. He testified that when the Kingshighway light changed from green to yellow, it would remain yellow for a period of 3.4 seconds. When this light changed from yellow to red, the lights for both St. Louis Avenue and Kingshighway would remain red for a period of 1.7 seconds. Afterwards, the St. Louis Avenue light would turn green and the Kingshighway light would remain red for 37.4 seconds.

The respondent Marlowe Powell submitted his case on Bi-State's failure to keep a careful lookout and Norman Lines' violation of a traffic signal. Bi-State submitted its cross claim for damages on the alternative theories of the truck's excessive speed or the truck's violation of the traffic signal. Norman Lines submitted an affirmative defense instruction on the alternative theories of Bi-State's failure to keep a careful lookout or Bi-State's violation of the traffic signal.

The jury returned its verdict and found for the respondent and against both appellants, fixed respondent's damages at $13,500.00, and assessed each defendant's relative fault at fifty percent. The jury also found for Norman Lines on Bi-State's cross claim for damages. The verdict forms reflected, however, that the jurors who signed the verdict form assessing relative fault were not the same jurors who had signed the verdict form finding both appellants liable.

Both appellants moved for directed verdicts at the close of respondent's case and at the close of all the evidence. The trial court denied these motions. Appellants also moved for a judgment notwithstanding the verdict, or in the alternative, for a new trial. These motions were also denied. This appeal follows.

We first address Norman Lines' appeal before this court.

Appellant Norman Lines argues that the trial court erred in submitting Instruction No. 14 to the jury on behalf of Bi-State on its cross claim for property damage. Norman Lines argues that Instruction No. 14 contained additional charges of negligence which did not appear in Marlowe Powell's verdict directing instruction, and as such necessarily created an impermissible submission of multiple theories of recovery. Norman Lines further argues that the submission of the two theories of negligence resulted in a confused and misled jury which returned a verdict against Norman Lines on Marlowe Powell's claim based upon some theory other than what was contained in Mr. Powell's verdict director. We disagree.

In reviewing the propriety of instructions submitted to the jury, we must view the whole of the evidence and all of the instructions in determining whether a party has been prejudiced by confusing or misleading instructions. The burden of proof rests upon the party challenging the instruction. Wilson v. Bob Hood & Associates, Inc., 633 S.W.2d 738, 751 (Mo.App.1981). "The criteria in determining whether an instruction is correct or fails is whether an average juror would correctly understand the applicable rule of law, and whether a jury was not or could not be confused or misled, resulting in prejudice to one of the parties." Id. at 751.

In the instant case, Instruction No. 14 was the verdict director on Bi-State's cross claim against Norman Lines for property damage. This instruction conformed with M.A.I. 17.02 and hypothesized two separate disjunctive submissions of negligence on the part of Norman Lines: (1) that the driver of Norman Lines' truck violated the electric signal; or (2) that the driver of Norman Lines' truck drove at an excessive speed.

In light of the whole record, it is clear that each submission of negligence was supported by substantial evidence. Four separate witnesses testified to the speed of the truck and the color of the traffic signals at the time of the accident. These witnesses testified that the truck was traveling somewhere between 35 and 50 m.p.h. and that the truck ran a red light.

Moreover, the instant case involved both Marlowe Powell's claim for personal injuries and Bi-State's claim for property damage. The trial court properly prepared the instructions in package form. Instruction No. 7 instructed the jury that Instruction 7 through 12, plus the general instructions, applied to the Powell's claim for personal injury. Instruction No. 13 further instructed the jury that Instructions 13 through 17, plus the general instructions, applied to Bi-State's claim for property damage. In view of all the instructions, it is clear that those dealing with Powell's personal injury claim were separate from those dealing with Bi-State's property claim. It is also clear that there was no language present in the instructions which could confuse or mislead an average juror.

Norman Lines also asserts...