Nuckols v. Andrews Investment Company

Missouri Court of Appeals

Nuckols v. Andrews Investment Company

364 S.W.2d 128, 1962 Mo. App. LEXIS 593

CourtMissouri Court of Appeals

DecidedDecember 3, 1962

Docket23615, 23617

StatusPublished

Cited by19 cases

This text of 364 S.W.2d 128 (Nuckols v. Andrews Investment Company) 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

Nuckols v. Andrews Investment Company, 364 S.W.2d 128, 1962 Mo. App. LEXIS 593 (Mo. Ct. App. 1962).

Pincite

Opinion

HUNTER, Presiding Judge.

Plaintiffs-respondents, S. S. Nuckols and Helen Nuckols, obtained a judgment for $15,000 for the wrongful death of their minor son, William, against defendant-appellant, Andrews Investment Company, a corporation.

William Nuckols was killed on July 11, 1960, while employed on a farm in Platte County, Missouri, by defendants-respondents, Andrew J. and Eileen M. Johnson. Decedent was found on a tractor in the hole of a collapsed low water dirt and concrete bridge on the farm.

The jury’s verdict was against defendant Andrews Investment Company and was in favor of defendants, Andrew and Eileen Johnson. Andrews Investment Company *131 has appealed seeking an outright reversal or at least a new trial, and plaintiffs, admittedly solely as a precautionary measure, and only in the event of success in this appeal by Andrews Investment Company, seek to have the judgment amended or modified so as to make it a joint judgment against all the defendants or in the alternative seek a new trial as to defendants Johnson on the question of liability alone.

None of the defendants offered any testimony at the trial, preferring to stand on their unsuccessful respective motions for a directed verdict. On this appeal they urge numerous contentions, including (1) failure of plaintiffs to make a submissible case; (2) contributory negligence as a matter of law on the part of decedent; (3) prejudicial error in certain instructions and (4) ex-cessiveness of the verdict.

Specifically, the first charge of error of Andrews Investment Company, hereinafter sometimes referred to as appellant, is that “The evidence failed to establish that this defendant owed any duty to the decedent (because) (1) This defendant had no control or right of control over the bridge involved; and (2) Decedent’s rights against this defendant are only coextensive with that of his employer.”

On this contention involving sub-missibility, it is our duty to review the pertinent evidence in the light most favorable to plaintiffs and to give them the benefit of every inference reasonably deducible therefrom. This we proceed to do.

Andrews Investment Company in 1959 was the owner of a farm located just east of Highway 71 in Platte County, Missouri. A private road entered the farm from the highway, through a gate, on past a farm house and dairy barn, and about a block farther on crossed a low water bridge running west to east over Owl Creek to where there were located fee fishing lakes and cottages, one of which was occupied by the Johnsons and decedent. This road was the only practical way from Highway 71 to the Johnson Cottage.

Appellant had owned and farmed the land for several years prior to the Johnsons’ possession of it. During that earlier time appellant had caused to be erected and had used two other bridges over Owl Creek but because of damage from occasional flooding of the creek had to replace them. Its president, Mr. Andrews, stated, “That type of soil down there just washes and erodes down and gets wider all the time and we just couldn’t keep a bridge in there.” Andrews gave his ideas to the builder as to how the third bridge should be built and it was built according to his suggestions including the number of tubes to be used, how large they should be, their location, and the packing of dirt and concrete over them. He told the contractor just what was wanted and the contractor did the work accordingly. Andrews knew that trucks and other heavily loaded vehicles would be using this new bridge.

The new bridge consisted of two large culvert pipes covered by earth fill with four to eight inches of concrete over it so as to form a bridge about 35 feet long and 12 or 14 feet wide. It was a low water bridge designed to permit the water to flow through the culvert pipes under it at low water stages, and also to flow over it in high water stages. The surface of the bridge was about five to eight feet above the bottom of the creek. Other than problems caused by washout or erosion is was an adequate bridge for farm use. It appeared to be solid and without defects when the Johnsons moved to the farm. It was used extensively by Mr. Johnson and decedent in order to move farm equipment from one side of the creek to the other as was often necessary in the farming operation. It was also used extensively by members of the public in getting to the fishing lakes operated by the Johnsons on the farm and by tradesmen making deliveries to the farm. The following picture of this bridge was taken shortly after the accident in question.

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