Graves v. Atchison-Holt Electric Coop.

886 S.W.2d 1, 1994 Mo. App. LEXIS 2000, 1994 WL 41819
CourtCourt of Appeals of Mississippi
DecidedFebruary 15, 1994
DocketNo. WD 48015
StatusPublished
Cited by14 cases

This text of 886 S.W.2d 1 (Graves v. Atchison-Holt Electric Coop.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graves v. Atchison-Holt Electric Coop., 886 S.W.2d 1, 1994 Mo. App. LEXIS 2000, 1994 WL 41819 (Mich. Ct. App. 1994).

Opinions

FENNER, Judge.

In this action for wrongful death and negligence, appellants, Marilyn J. Graves, Thomas Graves, Philip Graves, and Robert Gibson, appeal the order of the Circuit Court of Platte County, Missouri, overruling appellants’ motion for a new trial.

As a brief background, Donald Graves was electrocuted and Robert Gibson was seriously injured when a grain auger that they were handling contacted an overhead power line operated by Atchison-Holt Electric Cooperative (Atchison-Holt). Appellants, Marilyn Graves, Thomas Graves, and Philip Graves, brought suit against Atchison-Holt for wrongful death. Appellant Robert Gibson brought suit against Atchison-Holt for negligence.1 Appellant Marilyn Graves is the widow of Donald Graves and appellants Thomas Graves and Philip Graves are his adult children.

In Count I of their first amended petition, filed on September 8, 1992, appellants alleged, in part, that Atchison-Holt was negligent in that: (1) it owned and operated a 7200 volt uninsulated, overhead electrical line in close proximity to certain grain bins located on the Kingery farm; (2) it knew or should have known that grain augers were regularly used to fill the grain bins on the Kingery farm and that persons operating said grain augers were exposed to an unreasonable risk of danger from a grain auger coming into contact with an overhead electric line; and (3) it failed to exercise the highest degree of care to remedy the condition by (a) allowing the electrical line to exist in such a location; (b) failing to warn persons in the immediate vicinity of the electrical line about the existence and danger of the line; (c) failing to insulate the electrical line to prevent injury; (d) failing to deactivate the electrical line; and (e) maintaining the electrical line in violation of the provisions of the National Electric Safety Code. Appellants alleged that as a result of Atchison-Holt’s negligence, Donald Graves was electrocuted and Robert Gibson was seriously injured.

A jury trial took place from March 29th through April 2nd of 1993. The record reflects that the incident occurred on October 9,1989, when Donald Graves, Robert Gibson, and Dick Kingery, who were experienced [3]*3farmers, were loading a grain bin with an auger on Kingery’s farm.

On the Kingery farm, there were four grain bins that ran from east to west. The westernmost bin was the closest to the road above which the power line ran. Graves, Gibson, and Kingery were moving the grain auger from the east to the westernmost grain bin just prior to the accident. They were unhooking the auger from the tractor at the westernmost bin when the auger struck the power line. Donald Graves and Dick King-ery were electrocuted, and Gibson was seriously injured.

On April 2, 1993, the jury returned its verdicts. In Verdict A, on the wrongful death claim, the jury found that Donald Graves was 77.5% at fault and that Atchison-Holt was 22.5% at fault. The total amount of appellants’ damages, disregarding any fault on the part of Donald Graves, was found to be $500,000. In Verdict B, on the personal injury claim, the jury found that Robert Gibson was 85% at fault and that Atchison-Holt was 15% at fault. The total amount of appellants’ damages, disregarding any fault on the part of Gibson, was found to be $59,000.

On April 19, 1993, appellants filed a Motion for New Trial, arguing, in part, that it was prejudicial error for the trial court to admit into evidence a public opinion survey that attempted to demonstrate the common knowledge of local farmers as to hazards associated with operating farm equipment around overhead electric lines. On June 9, 1993, the trial court overruled appellants’ motion.

Judgment was entered on May 21, 1993. In accordance with the jury’s verdicts, the trial court ordered that appellants, Marilyn, Thomas and Philip Graves, shall recover $77,500.00 in actual damages from Atchison-Holt on their claim for the wrongful death of Donald Graves. The trial court further ordered that Robert Gibson shall recover no money in actual damages from Atchison-Holt on his claim for personal injuries.2 This appeal followed.

The sole issue on appeal is whether the trial court erred in admitting into evidence the public opinion survey, conducted at the request of Atchison-Holt. Appellants argue that the trial court erred in admitting such evidence, and thereafter overruling their motion for a new trial, because: (1) the survey was inadmissible to establish a standard of care and to impute knowledge to a party; (2) the survey constituted inadmissible hearsay; (3) even if the survey was admissible, this particular survey did not meet the fundamental requirements of necessity and trustworthiness; and (4) the probative value of the survey was substantially outweighed by its prejudicial effect.

We initially note that the trial court has substantial discretion in ruling on the admissibility of evidence, and its ruling will not be disturbed on appeal absent an abuse of discretion. Danneman v. Pickett, 819 S.W.2d 770, 772 (Mo.App.1991). Review of the trial judge’s ruling with regard to the admission of evidence is limited to whether the alleged error materially affected the merits of the action. Vasseghi v. McNutt, 811 S.W.2d 453, 456 (Mo.App.1991). Error in admitting evidence is not grounds for reversal if it does not prejudice the complaining party or adversely affect the jury in reaching its verdict. Id. Evidence is prejudicial if it tends to lead the jury to decide the case on some basis other than the established propositions in the ease. Slusher v. Jack Roach Cadillac, Inc., 719 S.W.2d 880, 882 (Mo.App.1986).

In Liberty Financial Management Corp. v. Beneficial Data Processing Corp., 670 S.W.2d 40 (Mo.App.1984), the admissibility of scientifically designed and statistically reliable surveys was recognized. Even though such surveys constitute hearsay, properly conducted surveys have gained judicial acceptance when the trustworthiness of the responses to the survey is otherwise established. Dummit v. Burlington Northern Railroad Co., 789 S.W.2d 136, 138 (Mo.App.1990).

[4]*4We first address appellants’ standard of care argument. Appellants complain that the survey “burdened [them] with a standard of care higher than that required by law,” when it asked the question, “Can you say that you are always especially careful when operating equipment around powerlines?” Appellants contend that this survey question elevated the standard of ordinary care and misled the jury. We do not find that the language of this question modified the charge to the jury.

Instruction No. 7, which was submitted to the jury, properly reflected the standard of care. This instruction stated:

The term “negligent” or “negligence” as used in these instructions with respect to decedent Donald Graves or Plaintiff Robert Gibson means the failure to use ordi-. nary care. The phrase “ordinary care” means that degree of care that an ordinarily eareinl and prudent person would use under the same or similar circumstances.

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Bluebook (online)
886 S.W.2d 1, 1994 Mo. App. LEXIS 2000, 1994 WL 41819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graves-v-atchison-holt-electric-coop-missctapp-1994.