Courtney v. City of Kansas City

775 S.W.2d 269, 1989 Mo. App. LEXIS 937, 1989 WL 68748
CourtMissouri Court of Appeals
DecidedJune 27, 1989
DocketNo. WD 40910
StatusPublished
Cited by9 cases

This text of 775 S.W.2d 269 (Courtney v. City of Kansas City) 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
Courtney v. City of Kansas City, 775 S.W.2d 269, 1989 Mo. App. LEXIS 937, 1989 WL 68748 (Mo. Ct. App. 1989).

Opinion

GAITAN, Judge.

Defendants-appellants, the City of Kansas City, Missouri, and David L. Brown, appeal the trial court’s order granting a new trial on motions for a new trial by plaintiffs-respondents, Patti J. and Kenneth Courtney, and defendant-respondent, Wendy West-Gibson. The jury verdict was in favor of the City and Brown. Both the Courtneys and West-Gibson filed motions for a new trial on several grounds. However, the trial court granted the motions only on the ground that the verdict was against the weight of the evidence. The Courtneys’ requested a new trial on both liability and damages, while West-Gibson’s request for a new trial stated that the verdict was against the weight of the evidence in that Brown “was negligent and that his negligence directly cause[d] the injuries of plaintiffs.” The trial court did not specify whether the new trial was being granted on both liability and damages, or only liability.

The Order granting a new trial is affirmed and the cause is remanded with instructions.

This case arose out of a two vehicular accident which occurred on July 18, 1984. Patti Courtney,was a passenger in a vehicle driven by West-Gibson that collided with a tractor with a mowing attachment operated by Brown. When the collision occurred, Brown was acting within the scope of his employment on behalf of the City of Kansas City.

The collision occurred in the inside eastbound lane of Missouri State Highway 291 in Platte County, Missouri, near that highway’s interchange with 1-435. The portion of Highway 291 on which the collision took place is a four-lane highway divided by concrete medians in which there were two openings. To the west of the point of collision, Highway 291 is a two-lane, undivided highway which curves to the north and east down a hill and then widens at the bottom of the hill into the four-lane divided highway. It was in the middle of the afternoon, a sunny day and the roadway was dry. When the collision occurred, West-Gibson’s car was entirely within the inside eastbound lane of Highway 291 and the front portion of the tractor-mower had been turned out of the inside eastbound lane and into the second median opening at an angle, but a part of the rear portion of the tractor-mower still extended into the inside eastbound lane.

Prior to the collision, Brown had been mowing vegetation along the shoulder of the eastbound lanes of Highway 291. There were three orange signs with black lettering each stating “Mower Ahead.” These signs were situated at the following locations: (1) Ferrelview approximately four to five miles back; (2) Robinhood Lane approximately one mile back; and (3) in the back of an open bed pickup parked along the shoulder of Highway 291 just east of where it widens into a divided, four-lane highway. The two rear emergency flashing lights on the pickup were flashing as West-Gibson approached and passed the truck prior to the collision. However, there were no flashing lights, signals or rear-view mirrors on the tractor-mower itself.

[271]*271Brown and his field supervisor decided cutting should stop and the tractor-mower should be marked and serviced at a State Highway Department facility on the north side of divided Highway 291. Brown had stopped the tractor-mower on the shoulder off of the eastbound lanes of Highway 291 just in front of his field supervisor’s truck and just east of where Highway 291 widens into a divided, four-lane highway. Brown got off the tractor-mower and walked back to the driver’s side door of the truck to talk with his supervisor. Before getting back onto the tractor-mower, Brown testified that he looked back down the highway to see if there was any approaching eastbound traffic. At that time, he saw no cars approaching so he then got on the tractor-mower and started it.

After starting the tractor-mower, Brown testified that he again looked back down the highway for approaching eastbound traffic. This time, he saw some cars approaching, so he drove the tractor-mower down the shoulder of the highway until those cars passed. Brown stated that he looked back down the highway again and moved the tractor-mower from the shoulder onto the outside or right-hand eastbound lane of traffic. When Brown looked back this time before moving the tractor-mower from the shoulder, he saw two concrete trucks approaching eastbound, so he stayed in the outside lane after pulling into it until they passed.

After those two trucks passed, Brown stated that he again stood up, leaned out from the tractor-mower to his left with his right hand on the wheel and his left elbow on the tractor’s fender and looked back down the roadway for approaching eastbound vehicles. When he did so, he said that he was able to see back up the hill and along the curve of the highway. That was a distance of three-tenths of a mile. He stated that there were no eastbound vehicles in view at that time. The speed of the tractor-mower was between 5 and 15 m.p.h. By this time, the tractor-mower had reached a point on the outside, eastbound lane of the highway near the easternmost edge of the first median opening. Brown testified that he then moved the tractor-mower from the outside lane to the inside, eastbound without incident.

After changing lanes, Brown stated that the tractor-mower had traveled 77 feet in the inside, eastbound lane and that he heard tires squealing behind him. When Brown heard tires begin to squeal behind him, the tractor-mower was entirely in the inside, eastbound lane according to both Brown and a witness named David McKar-nin. Hearing the tires squealing, Brown testified that he accelerated as hard as he could, drove east down the inside lane another 62 feet and turned into the second median opening before West-Gibson’s car struck the side of the tractor-mower’s left rear tire.

In addition to the distance measurements set out above, Brown also measured the distance from the nose of the tractor-mower where it was stopped on the shoulder of the highway to the point of impact. That measurement was 389.3 feet. Also, the distance from the point on the roadway where Brown stood, turned and looked behind him before changing from the right-hand to the left-hand eastbound lane to the point of impact was 139 feet.

West-Gibson testified that as she came around the curve and began going downhill on the two-lane portion of the highway, she checked her speed and braked to bring it down to 55 m.p.h. The only other testimony of her braking was her braking after she realized her car was going to collide with the tractor-mower. West-Gibson was in a three-way conversation with Patti Courtney and the other passenger in the car as she drove downhill around the curve and onto the divided, four-lane stretch of highway. She testified that she saw the tractor-mower in the right-hand, eastbound lane of the divided highway when she was still back on the undivided portion of the highway. Her car entered the inside or left-hand eastbound lane when the highway widened into a divided, four-lane highway and it stayed in that lane.

West-Gibson testified repeatedly that the front end of the tractor-mower abruptly crossed the lane line from the right-hand [272]*272lane right in front of her car, she did not know where on the roadway the tractor-mower was when it began the lane change.

West-Gibson testified that all she had time to do to avoid the collision was apply her brakes. She did not honk her horn or attempt to swerve into the outside, or right-hand, eastbound lane, even though there were no other cars there.

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Cite This Page — Counsel Stack

Bluebook (online)
775 S.W.2d 269, 1989 Mo. App. LEXIS 937, 1989 WL 68748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/courtney-v-city-of-kansas-city-moctapp-1989.