Swindell v. J. A. Tobin Const. Co.

• Decision Date: 01 December 1981
• Docket Number: T-F,No. WD,WD
• Citation: 629 S.W.2d 536
• Parties: Bonnie SWINDELL, Plaintiff-Appellant, v. J. A. TOBIN CONSTRUCTION COMPANY, Clarkson Construction Company, and Safe-lare, Defendants-Respondents. 30207.
• Court: Missouri Court of Appeals

Page 536

629 S.W.2d 536

Bonnie SWINDELL, Plaintiff-Appellant, v. J. A. TOBIN CONSTRUCTION COMPANY, Clarkson Construction Company, and Safe-T-Flare, Defendants-Respondents.

No. WD 30207.

Missouri Court of Appeals, Western District.

Dec. 1, 1981.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied Dec.

22, 1981.

Application to Transfer Denied Feb. 16, 1982.

Don B. Roberson and Robert G. Sachse of Shughart, Thomson & Kilroy, Kansas City, for plaintiff-appellant.

Gene C. Morris and Pieter A. Brower of Field, Gentry, Benjamin & Robertson, Kansas City, for defendants-respondents, J. A. Tobin Const. Co. and Clarkson Const. Co.

Robert M. Kroenert, and John W. Cowden of Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for defendant-respondent Safe-T-Flare.

Before SOMERVILLE, C. J., Presiding, SWOFFORD, Senior Judge, and SHANGLER, CLARK, PRITCHARD, MANFORD and TURNAGE, JJ.

BEN W. SWOFFORD, Senior Judge.

This is an appeal by the plaintiff below from an adverse verdict and judgment in favor of three corporate defendants in a personal injury action. The plaintiff-appellant will be referred to herein as "plaintiff" and the defendants as "defendants Tobin and Clarkson" and "defendant Safe-T-Flare". The points on appeal involve the propriety of a converse instruction of defendants Tobin and Clarkson and asserted error in the rulings of the trial court as to the admissibility of certain evidence profferred by the plaintiff. The trial court overruled plaintiff's after trial motions, judgment was entered against her and this appeal followed.

All defendants argue that any alleged error charged here either as to instructions or admission or exclusion of evidence are immaterial and non-prejudicial since the plaintiff failed to make a submissible case of negligence against any of the defendants.

At the outset, therefore, it is necessary to view the basic and well-established rules which prescribe the scope of this court's review in a case of this kind and where such a contention is raised by the respondents, because, of course, if under such rules and principles the plaintiff made no submissible case the trial court erred in not directing a verdict for defendants and the matter ends there. In such circumstance, in determining whether a submissible case was made, the evidence must be considered in the light most favorable to the plaintiff and she must be given the benefit of all favorable inference which may be reasonably drawn from the evidence and all evidence will be accepted as true which is not entirely unreasonable or contrary to physical facts or natural laws. Epple v. Western Auto Supply Co., 548 S.W.2d 535, 537, 538(1) (Mo.banc 1977), supplemented 557 S.W.2d 253; Green v. Crunden Martin Mfg. Co., 575 S.W.2d 930, 932(1) (Mo.App.1978).

The record on this appeal is voluminous, consisting of 1050 pages and 86 exhibits. However, for the purpose of ruling this contention of the defendants upon the application of the principles as stated in Epple and Green, supra the facts pertinent to their argument and to the points raised by appellant on this appeal may be thus summarized:

Prior to April 21, 1974, the J. A. Tobin Construction Company and Clarkson Construction Company, separate corporations, entered into a joint venture contract with the Missouri Highway Department for the construction, grading and widening of the roadway of Interstate Highway No. 29 which contract included a stretch of I-29 near Route AA in Platte County, Missouri. Under the terms of this contract the joint venturers became responsible for handling traffic, barriers, barricades, signs, flagmen, and warnings necessary to protect members of the traveling public using the highway during the construction project.

Under a separate agreement defendants Tobin-Clarkson entered into an agreement with defendant Safe-T-Flare to supply the markers, signs, etc. necessary to accomplish this result on the project, including four-legged sawhorse type warning signs carrying electric blinkers commonly known as "No. 2 signs". These signs were used, among other purposes, to place along the edge between the traveled portion of a construction project and that portion not usable because of a drop-off or other danger, to warn oncoming traffic of that dangerous condition. There was substantial evidence that the defendants Clarkson-Tobin, subject to inspection by a highway department project observer, determined the placement and number of such signs in use of the project. While there was some conflict (or at least confusion), there was evidence that defendant Safe-T-Flare's obligation with reference to the No. 2 signs was to periodically inspect the signs and keep them in repair or replace damaged signs. This defendant periodically inspected the signs on the project site and, by reasonable inference, removed or caused the project contractors to remove conditions of obvious danger to the traveling public referable to the signs.

The record discloses that in certain weather conditions or when a large motor vehicle such as a bus or a freight hauling truck passed such a No. 2 sign the rush of air sometimes blew them over. Under such conditions they were sometimes anchored by sandbags tied to the horizontal crosspiece to add weight.

A Mr. Box testified in behalf of plaintiff. He was the principal partner in the firm of Paul C. Box and Associates, traffic engineers and consultants in the field of design, planning, operation of streets and highways in terms of efficiency of traffic flow, safety of the public, improvement and accident reconstruction.

He and his firm had done such traffic engineering work for many cities, counties and states (including many in Missouri) and for the federal government. His academic and professional qualifications as an expert were impressive and were not and are not challenged.

He was familiar with the No. 2 type sawhorse warning signs. Their purpose was to warn traffic past and around obstructions or other dangers existing from highway construction. Their design contemplates that any impacting force would drive a No. 2 sign forward and downward and underneath the impacting vehicle to prevent the sign from being thrown sideways or into the vehicle impacting so that it would not become a dangerous projectile. Box stated that if such signs needed added weight due to weather or traffic conditions this would be done by tying sandbags to the sign. The placing of loose rocks on top of a No. 2 sign is not good practice nor is it safe since an impacting vehicle will underride the rock and it will likely become a projectile into the windshield of the vehicle.

Box testified that he was familiar with the site of this accident and that, in his opinion, No. 2 signs should be inspected there once a day since the location was heavily traveled. The accident happened on a Sunday and the evidence showed that Clarkson's job superintendent and its safety director were last on the job site on Saturday and Safe-T-Flare's employee was last on the site on Friday.

On Sunday, April 21, 1974, at approximately 12:15 p. m. one Stephen Ballard was driving his 1965 Rambler automobile in a generally northerly direction on Interstate No. 29 along the construction site as described .2 of a mile north of AA overpass. Riding as a passenger in his car in the right front passenger seat was the plaintiff, Bonnie Swindell, at the time of the trial 23 years of age. She and Ballard had been to church and were headed to the farm of Ballard's parents to go horseback riding. Ballard testified that he was familiar with this road and the construction work in progress since he drove it at least twice a day going to and from his employment.

He testified that as he was proceeding on the traveled portion of I-29 at 40 miles per hour (the posted speed) he lost steering control of his car; his car abruptly swerved to the right; his right wheels went off the traveled highway into the drop-off where the widening construction was in progress; his car struck two or three of the No. 2 warning signs; swerved back onto the traveled highway; and, came to rest several hundred feet north. He stated that the steering balljoint on his car was broken in two after the accident.

Ballard stated that during his daily use of I-29 during this construction he had frequently observed rocks placed on top of the No. 2 warning signs along the traveled portion of the highway and that on the occasion in question just before he hit the first barricade he observed a large rock on top of that sign. He stated that the impact propelled the rock through the right front windshield of his car and that it was later found on the rear floorboard of his car. Photographic exhibits of the car disclosed a large hole in the windshield of the Ballard car and photos of the rock found inside the car were offered and received in evidence. There was testimony that it weighed approximately 40-50 pounds.

Ballard testified that after the impact the plaintiff slumped over onto his lap, was unconscious, was bleeding profusely from the head and he and the plaintiff were thereafter taken by ambulance to the hospital. Ballard noticed the plaintiff's face appeared to be "smashed".

Plaintiff did receive substantial injuries including loss of vision in her left eye; brain damage, multiple facial fractures to her nose, left eye socket, teeth and upper and lower jaws and a subdural injury to her brain. There was no substantial dispute as to the nature and extent of her trauma and resulting injuries, only the residual or permanent results were in any way contested. She testified she had no recollection of any events on the Sunday in question having first regained any consciousness in the hospital several days later. Apparently she suffered from retrograde amnesia, and was unable to add any testimony nor did she have any recollection of the facts of the accident.

Michael Murphy who lived in the area and used I-29...