Worley Ex Rel. Worley v. Tucker Nevils, Inc.

503 S.W.2d 417, 1973 Mo. LEXIS 703

• Court: Supreme Court of Missouri
• Decided: December 10, 1973
• Docket: 58305
• Status: Published

Opinions

HOLMAN, Judge.

Plaintiff was seriously injured in a collision involving a motorcycle upon which he was a passenger. Also involved in the occurrence was a school bus, another motorcycle, and a car. The driver of the motorcycle upon which plaintiff was riding (Randy Youngblood) died as a result of the collision. Plaintiff filed this suit against the estate of the deceased driver, Roy Welshon, the driver of the other motorcycle, Gene E. Bieser, the school bus driver, and Tucker Nevils, Inc., the owner of the car. Before trial, plaintiff dismissed, without prejudice, as to Bieser and Welshon. It was stipulated that plaintiff and Welshon had agreed on a settlement for $5,500. A trial resulted in a verdict in favor of the Youngblood estate, and a verdict for plaintiff and against Tucker Nev-ils, Inc. (hereinafter referred to as defendant), for $105,500. Defendant duly appealed from the judgment to the Missouri Court of Appeals, St. Louis District. That court adopted an opinion written by Smith, P. J., affirming the judgment. Upon appellant’s application we ordered the case transferred to this court. It will be determined here “the same as on original appeal.” Mo.Const., Art. V, § 10, V. A.M.S. We reverse and remand.

The first point briefed by Tucker Nevils is that the trial court erred in failing to sustain its motion for a directed verdict. We agree with the disposition of this point by the court of appeals and therefore adopt the following portion of its opinion:

“Defendant’s initial contention is that no submissible case of negligence against it was made on the theory submitted. That theory was a sudden stop or sudden slowing without the giving of an adequate and timely warning.

“In Tucker v. Blankenmeier, 315 S.W.2d 724 [2, 3] (Mo.1958), the court stated: ‘The sudden and abrupt stopping or slowing of an automobile is not, under all circumstances, evidence of negligence. Such slowing or stopping will constitute negligence if there is no emergency shown to justify it, and if it is made without giving a reasonably adequate and timely warning to the drivers of vehicles following so closely behind that they may be unable (but for the warning) to avoid a collision.’ See also Matthews v. Mound City Cab Co., 205 S.W.2d 243 (Mo.App.1947).

“We will review the evidence favorable to the plaintiff in the light of this statement. Plaintiff was a passenger on the motorcycle of Randy Youngblood, who was killed in the accident. They were proceeding from Festus to De Soto on Highway 110 in company with Roy Welshon, also riding a motorcycle. After turning off of Highway 67 onto 110 they came up behind defendant’s vehicle. After leaving 67, 110 goes sharply downhill and curves. It then swings out into a ‘straightaway’ which is comparatively straight and level. Defendant’s vehicle operated by Charles Birch, maintained a speed of 35 miles per hour throughout this stretch. To do so, Birch rode his brake down the hill, around the curve, and into the straightaway right up to the point of collision. During this period his rear brake light was on constantly. Youngblood and Welshon followed Birch down the hill, around the curve, and into the straightaway at 35 miles per hour, maintaining a distance of 30 to 35 feet from the rear of Birch’s car. The motorcycles were abreast of each other, with Welshon to the shoulder side of the westbound lane. Both motorcycles were in the westbound lane at all times. Highway 110 is a two-lane highway. As the car and motorcycles approached the accident site, a school bus was proceeding in the eastbound lane of Highway 110, with its flashing warning lights activated. While the school bus was still proceeding at 15 to 20 miles per hour and in close proximity to Birch, the Birch vehicle suddenly stopped or reduced its speed to one mile per hour. At that point, the motorcycles closed to within five to ten feet of the Birch vehicle; plaintiff saw the Welshon boy cut his wheel to the left and plaintiff remembered nothing further. The physical evidence indicated that no contact occurred with the Birch vehicle, but that contact was made with the front fender of the school bus. The Welshon motorcycle was extensively damaged; the Youngblood vehicle was nearly demolished. The scheduled stop for the bus was approximately 103 feet to the east of the accident site at the only driveway along the straightaway. The bus left 28 feet of skid marks; the Birch vehicle left none, nor did the motorcycles. There was evidence from the state highway patrolman that a vehicle could be stopped quite suddenly without leaving skid marks if the brakes were not locked. Birch admitted that he knew he need not stop for a school bus when the warning lights were flashing and that he should not stop until the ‘stop arm’ was pushed forward. His' testimony was that the school bus had come to a gradual stop and he did the same, and that when he looked into the rear view mirror after stopping he saw the motorcycles several hundred feet back, locked together and sliding down the hill.

“The evidence detailed above warrants the conclusion that no emergency existed sufficient to warrant a sudden stop or slowing. The evidence also supports a conclusion that Birch did in fact suddenly stop or slow his vehicle. Was there an adequate and timely warning of this stop as a matter of law? We believe there was not, and that a jury could find the absence of such warning. Defendant points to the illumination of the brake light for some one-half to three-fourths of a mile before the accident. But the evidence is clear that the braking by Birch was not to stop or slow his vehicle, but to prevent it from accelerating as he came down the hill and around the curve. Throughout the period while his brake light was on, Birch’s car maintained a constant speed of 35 miles per hour. Under those circumstances a jury was warranted in finding that the brake light did not signal an intention to stop or slow suddenly, but simply an intention not to accelerate. Nor does the presence of the school bus add to the ‘totality of the circumstances,’ as defendant contends. There was no obligation nor reason for Birch to stop his vehicle for a moving school bus as he himself admitted. There was sufficient evidence to support plaintiff’s submission.

“Defendant contends there was no showing of proximate causation because the record is silent on who hit who first, and shows no contact with defendant’s car. The evidence supports the conclusion that when Birch suddenly stopped, Welshon turned his wheel to the left to avoid running into Birch. Thereafter Welshon collided with someone, and since Young-blood’s vehicle was between him and the school bus it .is reasonable to conclude he hit Youngblood. Regardless of what precisely happened, it is reasonable to conclude that the act of Birch in suddenly stopping set in motion a chain of circumstances resulting in the collision and plaintiff’s injuries. That is enough to establish proximate cause. Thebeau v. Thebeau, 324 S.W.2d 674 (Mo.1959); Lafferty v. Wattle, 349 S.W.2d 519 (Mo.App.1961). Plaintiff made a case of negligence against defendant.”

Defendant’s next contention is that the court erred to its prejudice in refusing its proffered Instruction No. A, which reads as follows:

“Your verdict must be for defendant Tucker Nevils, Inc., whether or not driver Birch was negligent, if you believe:

“First, plaintiff knew facts from which it was reasonably apparent that he was in immediate danger, and

“Second, plaintiff had time to warn Randy Wayne Youngblood and failed to do so, and

“Third, such conduct of plaintiff was negligent; and

“Fourth, such negligence directly caused or directly contributed to cause any damage plaintiff may have sustained.

“The term ‘negligence’ as used in this instruction means the failure to use that degree of care which an ordinarily prudent boy of the same age, capacity and experience would use under the same or similar circumstances. M.A.I. 32.03, 11.-04, Modified.”

Defendant says that there was evidence to support the instruction and hence the issue of plaintiff’s contributory negligence should have been submitted to the jury.

In determining whether there was evidence to support the giving of said instruction we must consider the evidence in the light most favorable to defendant, give defendant the benefit of any favorable inferences that may reasonably be drawn therefrom, and disregard plaintiff’s evidence unless it tends to support the ground of contributory negligence the instruction would have submitted. Rickman v. Sauerwein, 470 S.W.2d 487 [1, 2] (Mo.1971). Some of the rules here involved, and the cases which have formulated or stated them, are collected in Fann v. Farmer, 289 S.W.2d 144, 147, 148 (Mo.App.1956), as follows: “‘“[w]hen dangers, which are either reasonably manifest or known to an invited guest, confront the driver of a vehicle, and the guest has an adequate and proper opportunity to control or influence the situation for safety, if he sits by without warning or protest and permits himself to be driven carelessly to his injury, this is negligence which will bar recovery.” ’ Ezell v. Kansas City, Mo., 260 S.W.2d 248, 250(3); Knox v. Weathers, 363 Mo. 1167, 257 S.W.2d 912, 915(5); Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21, 24(10). However, a guest in an automobile is required to exercise only ordinary care for his own safety [State ex rel. Alton R. Co. v. Shain, 346 Mo. 681, 143 S. W.2d 233, 238(9); Davis v. F. M. Stamper Co., 347 Mo. 761, 148 S.W.2d 765, 768(3)]; and, while the law does not permit a guest to intrust his safety absolutely to the driver, regardless of impending danger or apparent lack of ordinary caution on the driver’s part, it does not require the guest to exercise the same vigilance as the driver nor impose upon the guest the same obligation to look for danger. Smith v. St. Louis-San Francisco Ry. Co., 321 Mo. 105, 9 S.W.2d 939, 946(6); Setzer v. Ulrich, Mo.App., 90 S.W.2d 154, 157(9); Hill v. Missouri Pac. R. Co., Mo.App., 40 S.W.2d 741, 743. Our courts have said repeatedly that ‘it is a matter of common knowledge that under ordinary circumstances such occupants do largely rely upon the driver, who has the exclusive control and management of the vehicle, exercising the required degree of care, and for that reason courts are not justified in adopting a hard and fast rule that they are guilty of negligence in doing so’; and, similarly we read that ‘(i)n the absence of visible lack of caution of the driver or known imminence of danger, a guest may ordinarily rely upon a driver who has ex-elusive control of the vehicle.’ Toburen v. Carter, Mo., 273 S.W.2d 161, 164(2).”

In connection with this point some additional facts should be stated. The patrolman testified that “if I see a man’s brake lights on, I expect him to stop at any time”; that he wouldn’t be surprised if a car stopped suddenly even though the driver had been “riding his brakes, maintaining his speed down the hill for a quarter of a mile”; that it is “very easy to lay a motorcycle over”; that the school bus filled its lane of travel and the flashing lights are a warning to the traveling public that the bus is preparing to stop. It should also be noted that plaintiff testified that he was riding behind Randy holding around his waist; that he could see over Randy’s shoulder; that he didn’t say anything to Randy and Randy did nothing to slow the motorcycle and didn’t slow down before the collision; that as the motorcycle entered the straightaway he saw the approaching school bus also entering the straightaway with its flashing lights on.

We have concluded that the evidence was sufficient to support the giving of the contributory negligence instruction. This because a jury reasonably could have found that plaintiff and Randy were in a position of immediate danger from the time the motorcycle entered the straightaway until it reached the point of collision, a distance of 469 feet; that during that time the brake lights on defendant’s car were on, indicating that it might stop at any time, and the red flashing lights of the bus were on, which indicated that it might stop at any time; that the motorcycle was following too closely behind defendant’s car, i. e., 30 feet while traveling 52 feet per second; that Randy’s motorcycle was “boxed in,” in that in the event of a sudden stop of defendant’s car or other emergency, it could not swerve to the left because of the school bus, and could not swerve to the right shoulder because of the position of the other motorcycle; that plaintiff made no protest or warning that the motorcycle should be slowed so as to increase the distance between the vehicles, and Randy made no effort to do so; that if such a warning had been promptly made and acted upon by Randy the collision and injury could have been avoided. The jury also could have believed Mr. Birch’s testimony that his car had come to a gradual stop; that the school bus had almost stopped and could have considered such in connection with plaintiff’s testimony that Randy had not slowed the motorcycle and that plaintiff had made no request that he do so. We think the jury could also have considered that a motorcycle is a more dangerous vehicle than an automobile in that it only has two wheels and, in the event of accident, there is nothing to protect the rider from contact with the pavement or other vehicles. See State v. Cushman, 451 S.W.2d 17[3] (Mo.1970).

As indicated, we do not intend to say that plaintiff was guilty of contributory negligence as a matter of law, but rule that there was ample evidence to warrant the submission of that issue to the jury.¹

Plaintiff, in contending that the evidence was not sufficient, says that the words “immediate danger” mean the same as imminent peril as used in humanitarian cases and hence there must have been a showing that the danger was certain, immediate, and impending; that the danger was not certain until it was too late for a warning to have been effective. We do not think there was any intent to change the law relating to the duty of a guest to warn when M.A.I. 32.03 was approved, and certainty of danger and injury (absent evasive action) has not been required by the cases. Moreover, the phrase “immediate danger” is modified by the words “reasonably apparent,” which tends to limit any indication that certainty is a requirement.

Plaintiff also contends that, in any event, failure to warn could not have contributed to the cause of plaintiff’s injury because Randy had all the knowledge that plaintiff had and hence a warning would have accomplished nothing. We think this contention is without merit; Randy is deceased, and we cannot know what he saw or knew and should not speculate in that area. Furthermore, even if it is assumed that he knew of the danger, he was not taking any action to avoid it and hence plaintiff should have protested or warned in an effort to obtain action in that regard.

Other contentions of trial error will not be considered since they will not likely recur upon another trial.

Defendant has briefed the contention that the verdict was excessive and that a remittitur should be required. Obviously, in view of our disposition of the appeal, that point need not be discussed. However, one reason for transferring the case here was our disagreement with certain statements in the court of appeals opinion relating to the remittitur doctrine. We deem it advisable to express our views concerning that subject before concluding this opinion.

The court of appeals opinion contained the following statement: “We have heretofore expressed our reluctance to interfere through remittitur in Effinger v. Bank of St. Louis, 467 S.W.2d 291[6] (Mo.App.1971), wherein we said: ‘Where the verdict has the approval of the trial court, it is conclusive on appeal unless it is so shockingly and grossly excessive or inadequate as to indicate that the amount of the verdict is due to passion and prejudice.’ What we said there, and what we say here, is that this district of the Court of Appeals will henceforth decline to exercise its discretionary power to review the amount of the verdict through the remittitur device. If the verdict is so grossly excessive or inadequate as to demonstrate bias and prejudice the entire case must be remanded for new trial on all issues. If it is not, we will not reduce the judgment by remittitur.”

There are two types of attacks that are made upon verdicts alleged to be excessive. One is that the verdict is so grossly excessive as to indicate bias and prejudice on the part of the jury. If such a contention is found to be meritorious the verdict cannot stand in any amount and a new trial must be ordered. Skadal v. Brown, 351 S.W.2d 684 (Mo.1961). The other type of attack is that the verdict is merely excessive. “A verdict which is excessive is one in which the jury made an honest mistake in weighing the evidence as to the nature and extent of the injury and in fixing the damages and awarded a sum disproportionate to the amounts usually awarded for comparable injuries under the rule of uniformity. Such a mistake can be cured and corrected without a new trial by requiring a remittitur of a portion of the amount awarded.” Skadel v. Brown, 351 S.W.2d 1. c. 689. The remittitur doctrine has long proved to be a useful device for both the trial and appellate courts of this state in keeping awards from exceeding the upper limit of fair and reasonable compensation. It is said to be a desirable doctrine because it tends to hold verdicts within uniform limits and often avoids the granting of new trials which inevitably result in delay, uncertainty, and additional expense. Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157 (1944). A discussion of the power of the court “to require a remittitur as a condition of af-firmance” appears in the early case of Cook v. Globe Printing Co. of St. Louis, 227 Mo. 471, 127 S.W. 332 (1910). It is true that in recent years the extreme growth of inflation in this country has caused the courts of this state to approve much larger verdicts than in the past, and hence they have seldom had to resort to the use of remittiturs. The remittitur doctrine, however, is firmly entrenched in the operation of our judicial system and should be retained, and requests of litigants for its application should be considered by all the courts of this state until such time as it is rejected by this court.

The statement quoted from Effinger, supra, is not correct when applied to excessive verdicts. Similar statements have sometimes appeared in cases involving a contention that the verdict was inadequate, and are perhaps applicable in that situation because we have never adopted an “addi-tur” doctrine. We disapprove of the rulings of the Court of Appeals that it will no longer consider contentions of excessiveness wherein the remittitur doctrine is relied upon for correction of the alleged error.

The judgment is reversed and the cause remanded for a new trial.

HENLEY and FINCH, JJ., concur. DONNELLY, C. J., concurs in separate concurring opinion filed. BARDGETT, J., dissents in separate dissenting opinion filed. SEILER and MORGAN, JJ., dissent and concur in separate dissenting opinion of BARDGETT, J.

1 . It has occurred to us that a reader might question whether the failure to give the contributory negligence instruction was prejudicial in view of the fact that the jury returned a verdict in favor of Randy’s estate. The answer is that the sole submission against the estate was that Randy “drove on the wrong side of the road,” which submission had questionable evidentiary support and was not an element we have considered on the issue of plaintiff’s alleged contributory negligence.