Merritt v. Cassarino

753 S.W.2d 84, 1988 Mo. App. LEXIS 732
CourtMissouri Court of Appeals
DecidedMay 24, 1988
DocketNo. WD 39287
StatusPublished

This text of 753 S.W.2d 84 (Merritt v. Cassarino) 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
Merritt v. Cassarino, 753 S.W.2d 84, 1988 Mo. App. LEXIS 732 (Mo. Ct. App. 1988).

Opinion

GAITAN, Judge.

Kevin L. Yates, petitioner below and appellant, appeals the decision of the judgment of the trial court which set aside a verdict in his favor against both defendants and appellees, Alvin Merritt and Pasquale F. Cassarino. The trial court sustained a motion filed by Cassarino which sought a judgment n.o.v. Alternatively, the trial court issued a conditional order of a new trial in the event the judgment n.o.v. was reversed. We reverse and remand for a new trial.

On the morning of December 27, 1978, between 8:00-8:30 a.m., Cassarino was headed to work on eastbound 1-70 in Kansas City, Missouri, just east of the Prospect Avenue interstate entrance in moderate traffic. At that same time and place Yates [85]*85and Merritt were traveling eastbound on 1-70 in a tractor-trailer truck from Muncie, Kansas, to their destination in North Kansas City, Missouri. Merritt was driving and Yates was a passenger.

While traveling eastbound in the right hand lane of 1-70, Cassarino observed Merritt's tractor-trailer truck to the rear of his vehicle in the center lane, gradually gaining on him. Cassarino testified his speed was between 50 to 55 m.p.h. When the tractor-trailer was about even with Cassari-no’s car, the tractor-trailer truck had to ease up because of another car in front of it. At that point Cassarino began moving ahead of the tractor-trailer truck in the right hand lane of 1-70 and as he was doing so he felt an impact to the left rear portion of his car. Although Merritt testified he placed his turn signals on before changing lanes, Cassarino claimed he never observed an operating turn signal on Merritt’s tractor-trailer truck, nor did he have any notice that Merritt intended to change lanes.

On impact respondent Cassarino’s car spun out of control in front of the tractor-trailer truck and came to rest in the medial area near the medial guard rail. Apparently, so as to avoid a second collision with Cassarino’s car, Merritt veered his tractor-trailer truck off the interstate, causing it to land on its side and trap Yates underneath, causing numerous injuries to Yates which required immediate and continued medical attention.

At trial, Merritt admitted that he never saw Cassarino’s car until after impact, at which time he observed him through his windshield as the car was spinning out of control in front of him. There seems to be no dispute as to the following facts: that impact occurred in the right hand lane; that the right front comer of his tractor-trailer truck struck the left rear portion of Cassarino’s car; that he received a ticket for improper lane change; and that he pled guilty to that charge. The judgment against Merritt has not been appealed.

Yates stated during direct examination that when he first glanced to the right he saw nothing. He glanced again as Merritt began to change lanes and he saw a white car in the right lane trying to pass before impact. On cross-examination there is testimony which could be considered contradictory and is stated as follows:

[[Image here]]
Q. Okay. So by your looking in a mirror wouldn’t help you at all in assisting the driver of oncoming traffic because it didn’t help you, did it?
A. No.
Q. Okay. Now, as I recall, you never saw Mr. Cassarino’s car until after you heard the crash; am I right about that?
A. Yes.
Q. And after you heard the crash, you saw it spinning in front of the truck, did you not?
A. No.
Q. And after you heard the crash, you saw it spinning in front of the truck, did you not?
A. No.
Q. Where was it?
A. I seen it — when I first saw the car?
Q. The car.
A. When I first saw it?
Q. Uh-huh.
A. I was looking out my window, right-hand side, into the southeastbound lane, and as I seen the car, it was coming around, I don’t know, I would guess at the back end. It was about three foot, coming back — say if the cars were like this (indicating), it was about three feet coming back into the truck bumper, right in there, about like so (indicating).
Q. Do you know what part of the car the truck hit?
A. The rear left comer.
Q. Rear left comer. Are you saying you saw it before he hit it?
A. It was instant. As I seen it, it was being hit.
Q. It was hit when you saw it; am I right?
A. Correct.
[86]*86Q. And is it also correct to say that the right front comer of the truck hit the left rear comer of the car?
A. Yes.
Q. All right. That would mean, would it not, that that car had to be in a position where the left rear wheel, that much from the left rear wheel forward was in front of the front of the track, wasn’t it?
A. Yes.
Q. You understand what I’m trying to say? Maybe I’m doing a poor job of it.
[[Image here]]

At the close of appellant’s case in chief, and again at the close of all the evidence, Cassarino filed motions for directed verdicts in his favor, alleging in part, that Yates’ evidence failed to prove or establish any actionable negligence on the part of Cassarino that directly caused or contributed to cause Yates’ damages; however, said motions were overruled by the trial court.

Yates submitted his case to the jury, alleging as to Cassarino that he failed to keep a careful lookout and passed on the right when it was unsafe to do so. After due deliberation the jury returned a verdict in favor of Yates and against Merritt and Cassarino, with 90% fault assessed to Merritt and 10% fault assessed to Cassarino.

As a result of the verdict, Cassarino filed a Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for a New Trial, alleging, in part, that there was no evidence supporting Yates’ submission that Cassarino failed to keep a careful lookout. Thereafter, on March 30, 1987, the trial court sustained Cassarino’s Motion for Judgment Notwithstanding the Verdict and entered judgment in favor of Cassarino. That order may be summarized by the trial court’s finding that the contradiction in the plaintiff’s testimony as well as other circumstances did not support a judgment against Cassarino. On April 6, 1987, the trial court entered a conditional order granting Cassarino a new trial which was conditioned upon reversal or vacation by this Court of the trial court’s order sustaining Cassarino’s Motion for Judgment Notwithstanding the Verdict. It is from those orders that Yates now appeals.

In reviewing the grant of a motion for a judgment n.o.v. and, in the alternative, the grant of a motion for a new trial after a verdict for plaintiff, the plaintiff is entitled to have the evidence viewed in the light most favorable to him with all reasonable inferences deductible therefrom. Smith v. Allied Supermarkets, Inc.,

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Bluebook (online)
753 S.W.2d 84, 1988 Mo. App. LEXIS 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merritt-v-cassarino-moctapp-1988.