Terrell v. Bailey Limestone Co.

575 S.W.2d 775, 1978 Mo. App. LEXIS 2423
CourtMissouri Court of Appeals
DecidedNovember 27, 1978
DocketNo. KCD 28982
StatusPublished
Cited by3 cases

This text of 575 S.W.2d 775 (Terrell v. Bailey Limestone Co.) 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
Terrell v. Bailey Limestone Co., 575 S.W.2d 775, 1978 Mo. App. LEXIS 2423 (Mo. Ct. App. 1978).

Opinion

ROBERT R. WELBORN, Special Judge.

Action for damages for personal injuries received in automobile collision. Jury returned verdict for plaintiff for $25,000.00. Defendant has appealed from the ensuing judgment.

On December 15, 1972, at around 4:00 P.M., Patricia Ruth Terrell was driving her 1972 Ford LTD with four passengers eastbound on Route Z just outside Marceline, Missouri. The blacktopped road surface was icy. Mrs. Terrell slowed her vehicle preparatory to making a right turn into a driveway. She applied her brakes and activated the right turn signal light. As she slowed she noticed that a truck which had been following her began to get closer to her automobile. She slowed her vehicle to a speed of about two miles per hour and had just begun to turn into the driveway when the truck struck her auto in the rear, knocking it into a ditch and causing injuries to Mrs. Terrell.

Minor F. Martin, an employee of Bailey Limestone Co., Inc., was the driver of the truck, owned by Bailey. According to him, he was following the Terrell auto at a distance of about 200 to 300 feet at approximately 30 miles per hour when, without warning, the Terrell auto stopped in the road in front of him. He applied his brakes, but, because of the icy conditions, the wheels locked and the truck slid into the rear of the Terrell auto.

At the trial, Mrs. Terrell’s claim for damages was submitted under the following instruction:

[777]*777“Your verdict must be for plaintiff if you believe:
“First, defendant was following the 1972 model Ford car operated by the plaintiff too closely, and
“Second, defendant was thereby negligent, and
“Third, as a direct result of such negligence, the plaintiff sustained damage,
“unless you believe plaintiff is not entitled to recover by reason of Instruction No. 5.”

Defendant Bailey submitted the following instruction, given to the jury:

“Your verdict must be for the defendant whether or not defendant was negligent if you believe:
“First, plaintiff stopped on the highway in front of defendant’s truck, without adequate and timely warning in light of existing conditions; and
“Second, plaintiff’s conduct submitted in paragraph First was negligent; and
“Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.”

The jury returned a verdict for plaintiff and fixed her damages at $25,000.00. After its motion for new trial was overruled, defendant appealed.

In this court, the first assignment of error is predicated on the failure of the trial court to order a new trial because the term “negligent” as used in plaintiff’s verdict-directing instruction was not defined for the jury. Appellant contends that such definition was required in order to fairly submit the issues to the jury and that the absence of definition of the term resulted in a lack of direction for the jury and gave them a roving commission.

The question here raised has been put at rest under MAI revisions effective January 1, 1978, under which the term “negligent” or “negligence,” if it appears in an instruction, must be defined. See Notes on Use, MAI 11.02 (1977 Revision). At the time of trial of this case (April, 1976) no clear-cut rule had been established regarding the effect of failing to give an instruction defining the term. In the most recent case in the Supreme Court involving the question, the court expressed no opinion as to whether or not the absence of such definition constituted prejudicial error. The court noted “* * * that the better practice is to include such a definition where the term negligence appears in any of the instructions.” Epple v. Western Auto Supply Co., 548 S.W.2d 535, 544[17] (Mo.banc 1977).

In Carter v. Consolidated Cabs, Inc., 490 S.W.2d 39, 42-43[3-4] (Mo.1973), the court, after reviewing the prior cases on the subject, concluded that failure to define the term “negligently” as used in plaintiff’s verdict-directing humanitarian instruction which submitted that the defendant “negligently failed to so swerve” was not error. The instruction also required a finding that defendant “by using the highest degree of care * * * could have avoided injury to plaintiff by swerving” and the term “highest degree of care” had been defined. In holding that failure to define “negligence” was not error, the court said: “Failure to swerve is not a technical term, but rather is one in everyday understanding of jurors, and highest degree of care was defined.” 490 S.W.2d 43.

A similar approach is found in Rakestraw v. Norris, 478 S.W.2d 409, 420[25-27] (Mo.App.1972), where the negligence submitted was that “defendant either: violated the traffic signal, or failed to keep a careful lookout” (478 S.W.2d 416) and no definition of “negligent” was given, the court said (478 S.W.2d 420):

“* * * we realize that it is not an M.A.I. requirement that a definition of the word negligence be given whenever that term appears in the instructions, Brewer v. Swift & Company, Mo., 451 S.W.2d 131, 134, and perhaps if plaintiff had submitted her case solely upon a violation of the traffic signal, such definition would have been unnecessary. However, there is no specific statutory duty to maintain a careful lookout in this state, except as that duty inheres [778]*778in the requirement that ‘[e]very person operating a motor vehicle on the highways of this state shall drive the vehicle in a careful and prudent manner . . and shall exercise the highest degree of care.’ § 304.-010, par. 1. ‘Keeping a careful lookout’ does not in itself denote the exercise of a specific standard of care; it is a term of variable meaning, depending upon the context in which it is used. In this particular case, the defendant was required to exercise the highest degree of care in the maintenance of a lookout to discover the presence of other persons and objects on the streets and to become aware of dangerous situations and conditions there existing, Miller v. St. Louis Public Service Company, supra, 389 S.W.2d 771[2], but the jury was given no standard by which to measure his duty because the terms ‘negligent’ and ‘negligence’ were not defined. As stated, because of the broad generality of the lookout submission, it is our opinion that the terms ‘negligent’ and ‘negligence’ should have been defined, and that plaintiff’s failure to define those terms was prejudicial to the defendant.”

In Cunningham v. Hayes, 463 S.W.2d 555, 562-565 (Mo.App.1971), the failure to define negligence in a res ipsa submission was held error. The court stated (463 S.W.2d 564-565):

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Cite This Page — Counsel Stack

Bluebook (online)
575 S.W.2d 775, 1978 Mo. App. LEXIS 2423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terrell-v-bailey-limestone-co-moctapp-1978.