Bushong v. Marathon Electric Manufacturing Corp.

719 S.W.2d 828, 1986 Mo. App. LEXIS 4682
CourtMissouri Court of Appeals
DecidedSeptember 15, 1986
DocketNo. 14219
StatusPublished
Cited by16 cases

This text of 719 S.W.2d 828 (Bushong v. Marathon Electric Manufacturing Corp.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bushong v. Marathon Electric Manufacturing Corp., 719 S.W.2d 828, 1986 Mo. App. LEXIS 4682 (Mo. Ct. App. 1986).

Opinion

FLANIGAN, Judge.

Plaintiff Timothy Bushong brought this action against defendant Marathon Electric Manufacturing Corporation for personal injuries allegedly sustained by plaintiff as a result of a collision involving a Mustang operated by plaintiff and a tractor trailer unit operated by defendant’s employee, Orval Barks. At the conclusion of the five-day trial the jury returned a verdict in favor of defendant. Plaintiff appeals from the judgment entered on the verdict.

[830]*830Plaintiffs first point is that the trial court erred in giving Instruction No. 7 at the request of defendant. Instruction No. 7 reads:

“INSTRUCTION NO. 7
You must assess a percentage of fault to plaintiff, Timothy Bushong, if you believe:
First,
plaintiff, Timothy Bushong, failed to keep a careful lookout, or plaintiff, Timothy Bushong, drove at an excessive speed, or plaintiff, Timothy Bushong’s automobile was on the wrong side of the road, and
Second,
plaintiff, Timothy Bushong, in any one or more of the respects submitted in paragraph First, was thereby negligent, and Third,
such negligence of plaintiff, Timothy Bushong, directly caused or directly contributed to cause any damage plaintiff, Timothy Bushong, may have sustained.”

Plaintiff’s criticism of Instruction No. 7 is that there was insufficient evidence to submit those portions of paragraph First permitting the alternate findings that plaintiff “failed to keep a careful lookout” or “drove at an excessive speed,” and that neither should have been submitted as an assignment of comparative fault. Further, with respect to each of those submissions, plaintiff claims that the evidence was insufficient to support the findings required by paragraph Third.

Seeking to uphold the giving of Instruction No. 7, defendant makes these alternative arguments: (a) the evidence was sufficient to support Instruction No. 7, and (b) even if the evidence was not sufficient, the error was not prejudicial.

The collision occurred on Highway 5 approximately one mile south of Hartville at approximately 9:30 p.m., July 8, 1982. Pri- or to the collision plaintiff Bushong was driving his Mustang generally north on the two-lane highway and defendant’s tractor trailer unit, operated by Orval Barks, was proceeding generally south.

Bushong testified that he was traveling at approximately 40 miles per hour; as he proceeded into a right hand curve he observed the headlights of defendant’s unit approaching from the north; defendant’s unit was approximately half way into the curve with the left side of the tractor and trailer wheels located in the northbound lane; the truck was “just astraddle” of the center line; Bushong immediately applied his brakes and his car started sliding “in a straight direction for a ways”; the road was wet; after his car slid straight for a distance, “my car just turned across the center line”; Bushong’s last recollection before the impact was that his vehicle was then approximately one car length from the tractor trailer unit.

Orval Barks testified that he was driving a tractor trailer unit, “an 18-wheeler,” between 40 and 45 miles per hour. “I came into a curve which went to my right and then as I encountered the second curve the road turned to my left. The accident happened in the second curve. It was not raining but the road was damp. I was more than half way through the curve with the front of my truck when I first saw the Bushong vehicle. I was headed uphill. The Bushong vehicle was on its side of the road when I first saw its lights. When I first saw the Bushong vehicle it was 50 to 75 feet from me. From the time I first saw the Bushong vehicle lights until the two vehicles collided, approximately one second elapsed. I have no way to judge the speed of the Bushong vehicle. I saw Bushong’s headlights, there was nothing unusual happening, I lost his headlights, I heard tires squealing, I saw tail lights coming at me. When I saw the tail lights they were in my lane. At that time the right rear corner of the Bushong vehicle was closest to me. The tail lights were about five feet from me when they appeared in my lane. When I saw the tail lights I applied my brakes as hard as I could. My [831]*831truck was in the right hand lane. The pavement was about 20 feet wide. At no time was I in the wrong lane. I was still in my own lane when the vehicles slowed and came to a stop.”

Highway Patrolman Nielsen, who investigated the accident, testified that the impact occurred in the southbound lane and that Bushong’s skidmarks commenced in the northbound lane but turned into the southbound lane prior to the impact.

When a verdict directing instruction submits in the disjunctive two or more assignments of negligence, the instruction is erroneous unless the evidence is sufficient to support all of the assignments. Shelton v. Bruner, 449 S.W.2d 673, 676[1] (Mo.App.1969). For the reasons which follow, this court holds that the trial court erred in giving Instruction No. 7 because the evidence was insufficient to support a finding that plaintiff failed to keep a careful lookout. It is unnecessary to consider whether the evidence was sufficient to support the alternate finding that plaintiff drove at an excessive speed.

In Bunch v. McMillian, 568 S.W.2d 809, 811[3-5] (Mo.App.1978), the court said:

“Negligence consisting of a driver’s failure to keep a careful lookout is not to be submitted to the jury unless there is substantial evidence from which the jury could find that the driver, in the exercise of the highest degree of care to keep a careful lookout, could have seen the other vehicle or person in time thereafter to have taken ‘effective precautionary action.’ ... A lookout instruction submits failure to see and failure to avoid injury ‘by “any means supported by the evidence.” ’ ... Although a lookout in-
struction need not hypothesize the means by which the driver, charged with failing to keep a careful lookout, could have avoided the collision, the evidence must support a finding that he possessed and failed to use such means....
‘Having the means and ability to avoid a collision means not only the mechanical appliances, such as steering apparatus with which to swerve, signalling equipment with which to warn, or braking appliances with which to slow down or stop, but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged [with failure to keep a careful lookout] to take effective action in avoidance.’ ” (Citing authorities.)

Defendant had the burden of showing a causal connection between the submitted negligence, that is Bushong’s failure to keep a lookout, and the injuries sustained and if the evidence leaves “the element of causal connection in the nebulous twilight of speculation, conjecture and surmise,” Shelton, supra, 449 S.W.2d at 680, the burden was not met.

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Bluebook (online)
719 S.W.2d 828, 1986 Mo. App. LEXIS 4682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bushong-v-marathon-electric-manufacturing-corp-moctapp-1986.