contributory negligence instruction in Missouri

2019Savage struck Appellant’s vehicle before he could pass completely. 13 The Missouri Supreme Court adopted a comprehensive system of comparative fault, replacing the doctrine of contributory negligence, in Gustafson v. Benda. 661 S.W.2d 11, 16 (Mo. banc 1983).

1987Defendant states that entering judgment without aportionment of fault was erroneous “because contributory negligence was an affirmative defense in negligent misrepresentation cases before Gustafson v. Benda, [ 661 S.W.2d 11 (Mo. banc 1983)] and Gustafson was intended to mitigate the harshness of the doctrine of contributory negligence.” Generally, comparative fault was adopted for Missouri in Gustafson .

2007They argue that the instruction was not supported by sufficient evidence in the record and that the issue of whether or not Jarrod intended to turn left was, at best, a controverted fact subject to inclusion of language mandated by Welch v. Hyatt, 578 S.W.2d 905 (Mo. banc 1979) (hereinafter “the Welch language”).

1984In considering the issue of the sufficiency of the evidence to support an instruction, this court is bound by the following rule: “In determining the sufficiency of the evidence to support the submission of a contributory negligence instruction, we consider the evidence in the light most favorable to the defendant, giving it the benefit of all favorable inferences therefrom, and disregard plaintiffs evidence unless it tends to support the giving of the instruction.” George v. Gross and Janes Co., 634 S.W.2d 579, 581 (Mo.App.1982); Welch v. Hyatt, 578 S.W.2d 905, 912 (Mo. banc 1979).

1989In Van Dyke v. Major Tractor & Equipment Co., 557 S.W.2d 11, 15 (Mo.App.1977), the court cited authority approving the joining of converse and affirmative defense instructions in a negligence case.

1984Defendant’s defense that plaintiff driver violated a red light was not an impermissible second converse: Van Dyke v. Major Tractor & Equipment Co., 557 S.W.2d 11, 15 (Mo.App.1977).

1979Where failure to keep a careful lookout forms the basis of a contributory negligence defense, “additional evidence was necessary from which the jury could find that plaintiff’s failure to keep a careful lookout was a proximate, contributing cause of the collision.” Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo. banc 1970).

1970Heberer v. Duncan, Mo., 449 S.W.2d 561, 563 [4]; Creech v. Riss & Company, Mo., 285 S.W.2d 554, 562 [7, 8].

1982Chandler relies on cases such as Koirtyohann v. Washington Plumbing and Heating Company, 471 S.W.2d 217 (Mo.1971), and Davidson v. International Shoe Company, 427 S.W.2d 421, 424-425 [4, 5] (Mo.1968).

1979The supreme court reversed a judgment for defendant in Davidson v. International Shoe Company, 427 S.W.2d 421 (Mo.1968) on the ground, among others, that the contributory negligence instruction submitted by defendant failed to require a finding of knowledge and appreciation of the danger on plaintiff’s part as a necessary element of contributory negligence.

1982Chandler relies on cases such as Koirtyohann v. Washington Plumbing and Heating Company, 471 S.W.2d 217 (Mo.1971), and Davidson v. International Shoe Company, 427 S.W.2d 421, 424-425 [4, 5] (Mo.1968).

1981In such situations, the contributory negligence instruction must submit this issue.” Koirtyohann v. Washington Plumbing & Beating Co., 471 S.W.2d 217 (Mo.1971) [6].

2011Id.

2002See, e.g., Moore v. Kansas City & I.Rapidr-Transit Ry., 126 Mo. 265 , 29 S.W. 9,12 (1894).

2011Instruction No. 11 noted as its source: "MAI No. 32.07(B) (1996) modified; MAI 11.02 Blackstock v. Kohn, 994 S.W.2d 947 , 952 n. 2 (Mo. banc 1999).” At the instruction conference and in the motion for new trial, CWF objected to Instruction No. 11 on the grounds that a contributory negligence instruction was improper in a negligence action involving only economic loss.

2008See Blackstock v. Kohn, 994 S.W.2d 947 , 952 n. 2 (Mo. banc 1999) (quoting MAI 32.07(B) (1996)).

1985George v. Gross and Janes Co., 634 S.W.2d 579 (Mo.App.1982).

1984In considering the issue of the sufficiency of the evidence to support an instruction, this court is bound by the following rule: “In determining the sufficiency of the evidence to support the submission of a contributory negligence instruction, we consider the evidence in the light most favorable to the defendant, giving it the benefit of all favorable inferences therefrom, and disregard plaintiffs evidence unless it tends to support the giving of the instruction.” George v. Gross and Janes Co., 634 S.W.2d 579, 581 (Mo.App.1982); Welch v. Hyatt, 578 S.W.2d 905, 912 (Mo. banc 1979).

1981See also Turpin v. Shoemaker, 427 S.W.2d 485 (Mo.1968); Bledsoe v. Northside Supply and Development Company, 429 S.W.2d 727 (Mo.1968) [5]; Bailew v. Schlotzhauer, 492 S.W.2d 774 (Mo.1973) [3], It may be conceded that under many circumstances the danger is so apparent that it may be presumed that plaintiff must have been aware of it and the only question is whether plaintiff acted in a certain way and was thereby negligent.

1973Turpin v. Shoemaker, supra, contains an exhaustive discussion of the assumption-of- risk rule and questions its viability in Missouri negligence cases.

1981See also Turpin v. Shoemaker, 427 S.W.2d 485 (Mo.1968); Bledsoe v. Northside Supply and Development Company, 429 S.W.2d 727 (Mo.1968) [5]; Bailew v. Schlotzhauer, 492 S.W.2d 774 (Mo.1973) [3], It may be conceded that under many circumstances the danger is so apparent that it may be presumed that plaintiff must have been aware of it and the only question is whether plaintiff acted in a certain way and was thereby negligent.

1979See also, Bledsoe, supra; and Van Dyke, supra. The cited cases show Paragraph First, in proper language, submitted the ultimate facts necessary for a finding of contributory negligence.

2024Co., 248 F.3d 517, 523-24 (6th Cir. 2001). 19 Furthermore, the third statutory requirement for barring a contributory negligence defense was met because there was sufficient evidence adduced at trial that the Railroad’s admitted violation of Illinois Code section 1500.270 (having the derail sign about a foot and a half too close to the centerline of the track) contributed to the injury of employee-Plaintiff.

2024On appeal, the Railroad argues it was entitled to a contributory negligence defense on Plaintiff’s negligence per se theory because Illinois Code section 1500.270 does not support or implement federal safety norms in that: (1) there is allegedly “no federal statute relating to close clearances or any instruction by [the] FRA on implementation of state close clearance laws”; and (2) “Illinois [allegedly] does not investigate or enforce any clearance laws on behalf of the federal government or report any violations of same to any federal agency.” In support of this argument, the Railroad primari

2019See Kraft v. Armentrout, 275 S.W.2d 402, 404 (Mo. App. 1955) (where there was no dispute the plaintiff passed the defendant’s truck at the intersection, the court held this was not contributory negligence as a matter of law).

2011Therefore, the contributory negligence rule operated to “irrationally impose total responsibility upon one party for the consequences of the conduct of both parties.” Earll v. Consolidated Aluminum Corp., 714 S.W.2d 932, 936 (Mo.App.1986).

2011Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 107 (Mo. banc 1996).

2011Gramex Corp. v. Green Supply, Inc., 89 S.W.3d 432, 439 (Mo. banc 2002), citing Moore v. Kansas City & I.

2004Brassfield v. Sears, 421 S.W.2d 321, 325 (Mo.1967).