Donham v. Samo

838 S.W.2d 174, 1992 Mo. App. LEXIS 1571, 1992 WL 277349
CourtMissouri Court of Appeals
DecidedOctober 13, 1992
DocketNo. WD 45356
StatusPublished
Cited by1 cases

This text of 838 S.W.2d 174 (Donham v. Samo) 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
Donham v. Samo, 838 S.W.2d 174, 1992 Mo. App. LEXIS 1571, 1992 WL 277349 (Mo. Ct. App. 1992).

Opinion

SPINDEN, Judge.

On June 5, 1987, an 18-foot tractor-trailer driven by Randy Samo crashed into the rear of Maxine C. Donham’s car in a construction zone on U.S. 71 in Grandview. Donham sued Samo and the tractor-trailer’s owner, Curtis Trucking, Inc., for negligence, and she sued Kiewit Western Company and Exco, Inc., which were performing the construction work at the site, for negligently failing to control and warn traffic entering the construction zone. Samo and Curtis Trucking filed cross claims against Kiewit and Exco for negligence and sought contribution should Samo and Curtis Trucking be found liable to Don-ham.

At trial, at the close of Donham’s case, the trial court granted Kiewit’s and Exco’s motions for a directed verdict against Don-ham. At the close of Samo’s and Curtis Trucking’s case, the trial court granted Kiewit’s and Exco’s motions for a directed verdict against Samo’s and Curtis Trucking’s cross claims. The jury returned a verdict of $200,000 in Donham’s claim against Samo and Curtis Trucking.

In this appeal, Samo and Curtis Trucking contend that the trial court erroneously directed a verdict against their cross claims against Kiewit and Exco. They also complain that the trial court erroneously instructed the jury concerning the “rear-end doctrine.” Although we conclude that the instruction was proper, we reverse the trial court’s judgment because it erroneously granted Kiewit’s and Exco’s motions for a directed verdict against Samo’s and Curtis Trucking’s cross-claim.

Directed Verdict

A directed verdict is a drastic measure and should be granted only if reasonable and honest persons could not differ on a case’s outcome. Jarrell v. Fort Worth Steel & Manufacturing Co., 666 S.W.2d 828, 833 (Mo.App.1984). In reviewing a motion for a directed verdict, we must consider all of the evidence in the light most favorable to the non-moving party, accept as true all evidence that is not entirely unreasonable or opposed to physical laws, accord to the non-moving party the benefit of all inferences deducible from that evidence and reject all unfavorable inferences, and disregard the moving party’s evidence except to the extent that it aids the non-moving party’s case. Beshore v. Gretzinger, 641 S.W.2d 858, 862 (Mo.App.1982).

The evidence favorable to Samo and Curtis Trucking showed that one of Exco’s flagger’s, James Kelly, abruptly, without warning, caused cars traveling in a construction zone to come to a sudden stop. A witness testified that Kelly, while walking along side the highway, suddenly began waving his arms for cars to stop. This occurred during morning rush hour and where only one lane was open. The witness testified that Kelly was wearing ordinary work clothes — not the orange, yellow or red clothing typically worn by highway construction flaggers — and did not have a flag. None of the witnesses could recall whether they saw a warning sign indicat[176]*176ing that drivers should be prepared to stop posted in the construction zone.

Samo told jurors that he was keeping his tractor-trailer about two to three truck lengths behind Donham’s car and was obeying the posted speed limit of 40 miles per hour. He said traffic was moving at a steady pace when he noticed in his rear view mirror that the car behind him maneuvered as though it intended to pass him. This concerned him because it was just before the lanes narrowed from two to one. He said that as he watched this car, the cars in front of his truck — Donham’s car, a van driven by Jack Burkhart, and another car driven by Penny Parker — began braking hard to a sudden stop.

Samo testified that when he realized that the vehicles in front of his truck were stopping, he hit his brakes and steered right to swerve around Donham onto the right shoulder. He said that as he did that, the car behind him pulled along side his truck on the right shoulder, so he then tried to drive into the closed left lane but could not because a construction worker was standing in it.

Samo said that, as he applied his brakes, his tires skidded through sand on the asphalt pavement. He said he steered to the right of Donham’s car, but his truck’s left front hit the back of the car. Donham’s car was either completely stopped or nearly stopped when Samo’s truck slammed into it. Samo’s truck stopped on the highway’s right shoulder, and one of its wheels dropped off the shoulder. As Samo began getting out of the truck, it rolled over onto its side into the ditch.

Samo and Curtis Trucking contend that the trial court should have submitted their claim of negligence against Kiewit and Exco to the jury and should not have directed a verdict for Kiewit and Exco on these facts. We agree. Although their evidence was controverted, it made a sub-missible case of negligence against Kiewit and Exco.

“Negligence is ordinarily a jury question, and where different, reasonable conclusions may be supported by the facts in the case, the question of negligence is almost always for the jury.” Smith v. Gravois Rest Haven, Inc., 662 S.W.2d 880, 883 (Mo.App.1983). The jury in this case had sufficient evidence from which to conclude that the flagger, inappropriately dressed, stopped the vehicles suddenly with insufficient or no warning and that this was improper traffic management.

Kiewit and Exco argue, however, that even if the flagger was negligent, Samo’s own negligence was the superseding cause of the accident and no substantial evidence showed that Kiewit and Exco were the proximate cause of the accident. We disagree.

The Supreme Court of Missouri has set forth this test of proximate cause:

[Wjhether the negligence of the defendant is that cause or act of which the injury was the natural and probable consequence[.] “Thus, from the essential meaning of proximate cause arises the principle that in order for an act to constitute the proximate cause of an injury, some injury, if not the precise one in question, must have been reasonably foreseeable.” The cases discussing proximate cause contain the exasperating caveat that in deciding questions of proximate cause and efficient, intervening cause, each case must be decided on its own facts, and it is seldom that one decision controls another.

Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 710 (Mo.banc 1990) (emphasis in the original) (citations omitted). “Proximate cause, and hence, a causal connection, are present if the evidence shows the negligence to have been the efficient cause which set in motion the chain of circumstances leading up to the injury.” Sirna v. APC Building Corp., 730 S.W.2d 561, 564 (Mo.App.1987).

The jury had sufficient evidence from which to conclude that the flagger’s abrupt actions and lack of warning set in motion the chain of circumstances leading up to the injury. They could have concluded that the accident was a natural and probable consequence of the flagger’s actions. Kiewit and Exco contend, however, that Samo’s negligent driving was, as a [177]*177matter of law, a superseding and intervening cause of the accident.

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Related

Meyer v. Thornhill
879 S.W.2d 786 (Missouri Court of Appeals, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
838 S.W.2d 174, 1992 Mo. App. LEXIS 1571, 1992 WL 277349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donham-v-samo-moctapp-1992.