Robinson v. Empiregas Inc. of Hartville

906 S.W.2d 829, 1995 Mo. App. LEXIS 1404, 1995 WL 500500
CourtMissouri Court of Appeals
DecidedAugust 2, 1995
Docket19654
StatusPublished
Cited by22 cases

This text of 906 S.W.2d 829 (Robinson v. Empiregas Inc. of Hartville) 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
Robinson v. Empiregas Inc. of Hartville, 906 S.W.2d 829, 1995 Mo. App. LEXIS 1404, 1995 WL 500500 (Mo. Ct. App. 1995).

Opinions

CROW, Judge.

On November 3, 1983, Plaintiff, David L. Robinson, was driving an automobile west on Route H in Wright County, approaching the intersection of Route TT. Robert M. Copus, an employee of Defendant, Empiregas Inc. of Hartville, was driving a two-ton truck south on Route TT, approaching the same intersection. Copus turned east onto Route H; the vehicles collided. Plaintiff was injured.

Plaintiff sought damages from Defendant, claiming Copus’s negligence caused the collision.1 A jury assessed 100 percent of the fault against Defendant and found Plaintiffs damages to be $1,007,000. The trial court entered judgment per the verdict.2

Defendant appeals, presenting five assignments of error. We begin with the third, which reads:

[832]*832“The trial court erred in overruling Defendant’s motion for new trial because the jury’s allocation of 100% of the fault to Defendant was against the weight of the evidence and contrary to the physical facts in that Plaintiff, had he kept a careful lookout, could not have faded to avoid the accident.”

Defendant’s proclamation that the verdict allocating 100 percent of the fault to it was “against the weight of the evidence” is answered by Housing Authority of the City of Rolla v. Kimmel, 771 S.W.2d 932, 940[8] (Mo.App.S.D.1989):

“Whether a verdict is against the weight of the evidence is a question for the trial court alone, Wilcox v. Coons, 362 Mo. 381, 241 S.W.2d 907, 917[25] (1951), and a claim on appeal that the verdict is against the weight of the evidence presents nothing for review because the appellate court does not weigh the evidence in a case tried before a jury. Walters v. Maloney, 758 S.W.2d 489, 497 (Mo.App.1988), and authorities there cited.”

Furthermore, a contention that a verdict is against the weight of the evidence implies there is some evidence to support the verdict. Robbins v. Robbins, 328 S.W.2d 552, 556[9] (Mo.1959). That is inconsistent with the second contention in the third point— that the allocation of 100 percent of the fault to Defendant was “contrary to the physical facts.” As we understand the second contention, Defendant maintains there was no evidence to support the jury’s allocation of fault. In the argument following the second contention, Defendant asserts that testimony contradicted by “undisputed physical facts” is not substantial evidence.

Despite the inconsistency between the second contention and the first contention, we shall address the second insofar as we are able to divine its import from the argument following it.

The statement of facts in Defendant’s brief sets forth a version of the evidence favorable to Defendant. The statement of facts in Plaintiffs brief sets forth a version favorable to Plaintiff.3 In narrating enough evidence to address the second contention in Defendant’s third point, we are mindful that in determining whether there was sufficient evidence to support the judgment, we must consider the evidence in the light most favorable to the party who prevailed on the verdict. Seward v. Terminal Railroad Assn. of St. Louis, 854 S.W.2d 426, 427-28[l] (Mo. banc 1993). That party is Plaintiff.

Viewed favorably to Plaintiff, the evidence establishes that Trooper James Michael Stewart of the Missouri State Highway Patrol arrived at the collision site at 11:29 a.m., some 45 minutes after the collision. The surface of Routes H and TT is asphalt; Route H is 19 feet wide. Stewart saw no skid marks.

On his report, Stewart diagrammed the position of the vehicles at the time he arrived. The diagram shows Defendant’s truck (which Stewart understood was approximately 25 feet long) headed southeast. A small portion of the right front corner of the truck extends south of the south edge of Route H; the left rear corner of the truck is six feet south of the north edge of Route H. The diagram shows Plaintiff’s automobile (which Stewart understood was approximately 18 feet long and six and a half feet wide) headed southwest. The right rear corner of the automobile is four feet south of the north edge of Route H; the left front of the automobile extends across the center of Route H into the eastbound lane. Stewart found a gouge mark in the asphalt some three and a half feet south of the center of Route H, beneath the left front corner of the automobile. Stewart concluded the gouge mark was the point of impact.

[833]*833Endeavoring to record how far the vehicles were from the intersection, Stewart “drew an imaginary line” projecting the east edge of Route TT south across Route H. From this line, he measured east to the right rear of the truck, recording the distance as 51 feet. He recorded the distance from the imaginary line to the right rear of the automobile as 78 feet. However, he testified at trial that he believed this was wrong, and that the 78 foot measurement was from the imaginary line to the front of the automobile. Then, this:

“Q Would that also be to the point of impact?
A It would be, yes, pretty close to the approximate point of impact.”

Stewart recounted that the damage to the automobile was “primarily front and secondary left front”; the damage to the truck was “left front and left side but primarily left side.” Photographs received in evidence confirm that testimony.

There is a stop sign for southbound vehicles on Route TT. As best we can determine from a “survey” received in evidence, the sign is approximately 55 feet north of the north edge of Route H projected across the intersection.

Stewart testified, “[I]f you stopped at the stop sign and looked and pulled out, you would really be taking a chance, in my opinion, so you’re going to have to pull on up and look again_” As we fathom his testimony, Stewart meant that because of visual obstructions, a southbound vehicle on Route TT, after stopping at the sign, should stop again at the projected north edge of Route H and look east before turning onto Route H. Stewart explained there is a hillcrest on Route H some 600 feet east of the intersection, and that a westbound driver on Route H can see the intersection from the crest.

Plaintiff testified he was in his lane when he crested the hill. He saw the truck “back a ways” from the intersection. Plaintiff continued, “[The truck] was slowing down and I had the impression that he had seen me and he was going to come to a stop and let me go on by.” However, said Plaintiff, when he (Plaintiff) was “close to the intersection,” he realized the truck was not going to stop. Consequently, avowed Plaintiff:

“I slammed on my brakes and since he was coming from TT coming from my right, I turned my steering wheel to the left in an attempt to try to get in front of him or avoid it but when I slammed on my brakes I went into a skid and pretty much went straight but I slid over into the center part of the road.... I was neither on my side nor his side, I was dead center in the middle of the road at the time of the impact.”

Defendant insists Plaintiff’s account “is mathematically and physically impossible.” Defendant cites the following passage from Black v.

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Bluebook (online)
906 S.W.2d 829, 1995 Mo. App. LEXIS 1404, 1995 WL 500500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-empiregas-inc-of-hartville-moctapp-1995.