McConnell v. Stallings

955 S.W.2d 590, 1997 Mo. App. LEXIS 2002, 1997 WL 716824
CourtMissouri Court of Appeals
DecidedNovember 19, 1997
DocketNo. 21240
StatusPublished
Cited by5 cases

This text of 955 S.W.2d 590 (McConnell v. Stallings) 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
McConnell v. Stallings, 955 S.W.2d 590, 1997 Mo. App. LEXIS 2002, 1997 WL 716824 (Mo. Ct. App. 1997).

Opinion

CROW, Judge.

Plaintiffs, Earl D. McConnell and Norma Faye McConnell, sued Defendant, Jerry Stallings, averring that Earl1 was injured when the rear of a motor vehicle he was operating was struck by a motor vehicle operated by Defendant. Earl sought money damages for his alleged injuries; Norma sought money damages for loss of Earl’s consortium.

A jury returned a verdict assessing no fault against either Earl or Defendant. Consistent with the verdict, the trial court entered judgment denying Plaintiffs’ claims.

Plaintiffs appeal. The first of their three points relied on reads:

“The trial court abused its discretion in overruling Plaintiffs [sic] motion for new trial and in entering judgment on the jury’s verdict because there was no substantial evidence or a complete absence of probative facts to support the verdict in that Plaintiff stopped his vehicle upon a county road overpass to an interstate highway, intending a left hand turn, yielding to oncoming traffic when Defendant, who was coming from behind Plaintiff on an unobstructed county road on a bright, clear, dry day overtook and permitted his vehicle to run into the rear of Plaintiffs vehicle; there was no evidence, testimony or contention at trial that Plaintiff suddenly stopped or slowed his vehicle without adequate warning and the unrefuted evidence by Plaintiff’s treating physician was that he was injured as a result of the collision.”

[592]*592Defendant maintains the above claim of error is not preserved, as it is not set forth in Plaintiffs’ motion for new trial.

The motion for new trial comprises eight paragraphs. The first four are:

“1. That the verdict is against the weight of the evidence.
2. That the verdict is against the greater weight of the credible evidence.
3. That the verdict is against the law under the evidence.
4. That the Court erred in refusing to grant Plaintiff’s [sic] Motion for Directed Verdict at the close of all the evidence because Defendant’s evidence failed to show any causal connection between the accident alleged in Plaintiff’s [sic] petition and the alleged failure to signal intention to turn.”

Paragraph 3, above, preserves nothing for review. Robbins v. Robbins, 328 S.W.2d 552, 555[6] (Mo.1959).

Paragraphs 1 and 2, above, present a different contention than Plaintiffs’ first point on appeal. Paragraphs 1 and 2 aver the verdict is “against the weight of the evidence,” and “against the greater weight of the credible evidence,” respectively. Plaintiffs’ first point on appeal avers there was “no substantial evidence or a complete absence of probative facts to support the verdict.”

An averment in a motion for new trial that a verdict is against the weight of the evidence implies there is some evidence to support the. verdict. Robbins, 328 S.W.2d at 556[9], Consequently, paragraphs 1 and 2, above, do not preserve the contention in Plaintiffs’ first point. It is thus apparent that if Plaintiffs’ first point is preserved in their motion for new trial, it has to be in paragraph 4.

Before addressing that subject, we note that a verdict for a defendant on a plaintiff’s claim need not be supported by any evidence; such a verdict rests upon a finding by the jury against the party having the burden of proof. Bakelite Company v. Miller, 372 S.W.2d 867, 871-72[7] (Mo.1963).

However, in the instant case Plaintiffs submitted their claims to the jury under the “rear end collision doctrine.” We must therefore consider whether, in such a situation, a complaint on appeal that there was no substantial evidence or a complete absence of probative facts to support the verdict alters the general rule that a verdict for a defendant on a plaintiff’s claim requires no eviden-tiary support.

In Nishwitz v. Blosser, 850 S.W.2d 119, 122 (Mo.App. E.D.1993), the court said:

“The rear end collision doctrine is described as follows:
The rear-end collision doctrine recognizes that if one has his vehicle in a portion of the highway where he should have it in view of his course, and another traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, proof of the collision under such circumstances makes out a pri-ma facie case of specific negligence against the driver operating the overtaking vehicle.
Kaufmann by Kaufmann v. Nagle, 807 S.W.2d 91, 94 (Mo. banc 1991) (quoting Ethridge v. Gallagher, 773 S.W.2d 207, 211 (Mo.App.1989)).”

As to the effect of the doctrine, Nishwitz explains:

“[I]n cases in which the doctrine applies to the facts, it does not compel a directed verdict or prohibit a defendant’s verdict. The doctrine provides that the circumstances establish a prima facie case of specific negligence. A prima facie case is a case which is sufficient to go to the jury. Linkogel v. Baker Protective Services, Inc., 659 S.W.2d 300, 305 (Mo.App.1983); State v. Hardelein, 70 S.W. 130, 131, 169 Mo. 579 (1902). It would compel a finding for plaintiff if defendant produces no evidence to rebut it. Gilpin v. Missouri, K & T. Ry. Co., 94 S.W. 869, 871, 197 Mo. 319 (1906). However, a prima facie case does not entitle a plaintiff to prevail as a matter of law, Linkogel, 659 S.W.2d at 305, or per se entitle plaintiff to a favorable verdict or a new trial from the appellate court. Rob[593]*593inson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7, 11 (Mo.App.1974).”

Nishwitz, 850 S.W.2d at 122[4-7].

Inasmuch as the vehicle operated by Defendant in the instant case struck the rear of the vehicle operated by Earl, it is arguable from the above passage that Defendant was required to present evidence rebutting Plaintiffs’ prima facie ease in order to escape liability. As recounted below, Defendant presented such evidence. Consequently, we need not decide what the consequences would have been had he failed to do so.

Defendant testified he was “probably going about 55, [the] speed limit.” He avowed that as he approached the overpass, he saw the top of Earl’s vehicle (a van) but “couldn’t tell ... whether the van was still moving or sitting still.” Defendant’s testimony continued: “[A]s I got up on the overpass and could see the van and the tail lights, I never seen any blinkers or any brake lights on this van.”

The investigating officer testified, without objection, that a driver can anticipate that a vehicle ahead of him is moving unless its driver gives a signal to the contrary.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
955 S.W.2d 590, 1997 Mo. App. LEXIS 2002, 1997 WL 716824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcconnell-v-stallings-moctapp-1997.