APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY. The Honorable Lee E. Wells, Judge
Before Fenner, P.j., Spinden and Smart, JJ.
The opinion of the court was delivered by: Spinden
Arthur Santos Felix *fn1 sued Kansas City Southern Railway Company (KCS) for the injuries he suffered when a KCS vehicle ran over him on KCS tracks near Joplin. A jury found that Felix suffered $4.5 million in damages but assessed him with 15 percent of the fault. KCS appeals. Felix cross-appeals, claiming that the trial court erred in directing a verdict against him on his claim for punitive damages against KCS. We reverse and remand for a new trial.
The accident happened on February 26, 1989, while Felix and his girlfriend's two children were looking for pennies. They had put the pennies on railroad tracks the previous day hoping that a train would flatten them. While Felix looked to the south, a hy-rail truck *fn2 driven by KCS employee Gary Helton *fn3 came from the north and hit Felix. Helton was not watching the tracks at the time.
The accident occurred just north of Joplin about one-fourth of a mile south of a public crossing known as the VFW crossing and about one-fourth of a mile north of the Turkey Creek trestle. K-Wood Trailer Park was east of the railroad tracks. Other residences were in the immediate vicinity. The hy-rail hit Felix just south of a foot path which ran east-west across the tracks parallel to power lines.
Helton was inspecting tracks and right-of-ways for defects. As he drove down the tracks into a curve at 25 to 30 miles an hour, he looked down to write an entry in the records he was making. While Helton wrote, the hy-rail traveled through the curve and went an additional 518 feet before hitting Felix. Had Helton been watching, he could have seen Felix approximately 500 feet--about 12 seconds--before hitting him.
Felix was treated for 47 days in a hospital for multiple, severe injuries. He presented evidence of lasting after-effects from the accident. His medical expenses through commencement of the trial totaled $139,842.30.
Felix's only point on appeal is that the trial court erred in directing a verdict against him on his claim for punitive damages against KCS. He asserts that he presented substantial evidence from which a reasonable juror could have found that Helton's conduct *fn4 showed complete indifference to, or conscious disregard for, the safety of others. We agree.
A. Preservation of the Punitive Damages Issue
KCS contends that because Felix did not object to its motion for directed verdict, he did not preserve it for our review. "It is well settled that under Rules 78.07 and 78.09 to preserve an issue for appellate review of any ruling of the trial court, the objecting party must make definite objections either at the trial or *fn5 in the motion for a new trial." Ingle v. Illinois Central Gulf Railroad Company, 608 S.W.2d 76, 79 (Mo. App. 1980), cert. denied, 450 U.S. 916 (1981). Felix objected to the directed verdict in his motion for new trial. He preserved the issue for our review.
KCS also contends that Felix waived his right to appellate review by not asking the trial court to reconsider its decision at the close of all the evidence. We disagree. As this court's Eastern District stated, in Koerber v. Alendo Building Company, 846 S.W.2d 729, 730 (Mo. App. 1992)(citations omitted):
No Missouri Supreme Court Rule sanctions the use of a motion for reconsideration. . . . "motion for reconsideration no legal effect as no Missouri rule provides for such a motion." . . . However, in order that an appellant not be denied substantive review of an appeal, this district and other districts have treated a motion for reconsideration as a motion for new trial if timely filed.
B. The Standard for Review
Granting a motion for directed verdict is a drastic action, and a trial court should do so only "'when all the evidence and the reasonable inferences to be drawn therefrom are so strongly against the plaintiff that there is no room for reasonable minds to differ.'" Schroeder v. Lester E. Cox Medical Center, Inc., 833 S.W.2d 411, 414 (Mo. App. 1992)(quoting Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698, 700 (Mo. 1969))(emphasis omitted). In reviewing whether Felix made a submissible case on punitive damages, we view the evidence in the light most favorable to him and give him the benefit of all reasonable inferences to be drawn from the evidence and disregard all contrary inferences. Bostic v. Bill Dillard Shows, Inc., 828 S.W.2d 922, 925 (Mo. App. 1992).
The standard for determining whether Felix made a submissible punitive damages claim is whether a reasonable juror could have found that KCS' conduct showed complete indifference to or a conscious disregard for the safety of others. Sharp v. Robberson, 495 S.W.2d 394 (Mo. banc 1973). "'The person doing the act or failing to act must be conscious of his conduct, and, though having no specific intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury.'" Id. at 397 (quoting Reel v. Consolidated Investment Company, 236 S.W. 43 (Mo. 1921)). The court has defined conscious disregard:
"The actor's conduct is in reckless disregard for the safety of another if he intentionally does an act or fails to do an act which it is his duty to the others to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the others, but also involves a high degree of probability that substantial harm will result to him."
Id. at 398 (citations omitted).
C. Basis for Felix's Claim for Punitive Damages
Felix contends that Helton's conduct showed complete indifference to, or a conscious disregard for, the safety of others. He points to these indicators:
Helton knowingly violated a KCS safety rule requiring that he keep a constant lookout for and be prepared to stop for people who may be on the track.
Helton knowingly violated a written KCS speed rule requiring him to drive at a speed that would allow him to stop for obstructions, but in no case more than 20 miles per hour.
Helton knowingly violated KCS' safety rules designed to warn the public of the hy-rail's approach by not turning on the truck's headlights and warning lights.
Notwithstanding the rules violations, Helton did not watch where he was going although he was moving through a residential area with heavy pedestrian traffic.
KCS responds first by arguing either that (1) Felix did not present sufficient evidence to prove the matters or (2) the trial court excluded the evidence and Felix has not preserved the issue for our review. Alternatively, KCS argues that the matters, even if proven, were not sufficient to make a submissible case.
D. Specific Points Preserved
In reviewing Felix's claim for punitive damages, we must restrict our consideration to the theories pleaded and preserved in Felix's motion for new trial. Plumlee v. Ramsay Dry Goods Company, 451 S.W.2d 603, 605-06 (Mo. App. 1970). Felix's motion for new trial asserted that the basis for punitive damages was Helton's violation of rules requiring a careful lookout and being prepared to stop for obstructions, his violation of speed rules, and his failure to watch where he was going although he was aware of heavy pedestrian traffic in the area.
1. Headlights and Warning Lights Rules
Felix asserts that he preserved the issue of the headlights and warning lights rule by proffering the deposition testimony of Kenneth Smith, KCS' superintendent of rules, concerning the rule. "It is settled law that where a trial Judge has erroneously excluded evidence but the same is preserved in the record by proffer and thereafter a verdict is directed for the defendant, this court on appeal may consider the entire record including the evidence erroneously excluded[.]" Look v. French, 346 Mo. 972, 144 S.W.2d 128, 132 (Mo. 1940). We find no offer of proof or ruling by the trial court on the matter. Felix did not claim in his motion for new trial that the trial court erred in excluding evidence of the rule. Felix directs us to the supplemental legal file and transcript pages, but those references did not concern an offer of proof regarding Smith's testimony about the rule. A document entitled "Plaintiff's Offers From the Deposition of Kenneth G. Smith" is in the supplemental legal file. It contains page and line references to Smith's deposition. Following this document are pages from Smith's deposition stamped "TESTIMONY OFFERED, BUT REFUSED." We cannot find, however, a ruling or order of the court refusing this testimony either in the transcript or legal file; nor do we find any objection in the record or in Felix's motion for new trial that the trial court erroneously excluded the evidence or an offer of proof by Felix. Providing us a complete record is the party's responsibility. Rule 81.12. We conclude that Felix did not preserve the issue for our review.
Concerning pedestrian traffic, Felix's motion said, "Gary Helton admitted having actual knowledge of pedestrian activity two to three times per week within a quarter of a mile of the accident site, but knowingly operated his vehicle without looking ahead[.]" KCS asserts that by focusing in his motion on Helton's testimony concerning his actual knowledge of pedestrian traffic a quarter of a mile from the accident site, Felix waived his right to rely on broad categories of evidence to support his punitive damages claim. We agree. To preserve the issue for our review, Felix had to make a definite objection either at trial or in his motion for new trial. Ingle, 608 S.W.2d at 79. A party against whom a verdict is directed "is not to be permitted to broaden the scope of objections beyond that made to the trial court, . . . for a case cannot be pleaded and tried in the trial court on one theory and on a different theory in the court of appeals." Plumlee v. Ramsay Dry Goods Company, 451 S.W.2d 603, 605-06 (Mo. App. 1970).
KCS contends that we should not consider evidence of Helton's alleged violation of a KCS speed rule because Felix's petition did not plead a violation of any speed rule as a basis for punitive damages. A party must plead only ultimate facts in his petition. Evidentiary facts supporting ultimate facts are not requisites. Scheibel v. Hillis, 531 S.W.2d 285 (Mo. banc 1976). Helton's violation of an alleged KCS speed rule is merely an evidentiary fact supporting Felix's pleaded claim of willful and wanton conduct. Felix pleaded that Helton negligently failed to keep a careful lookout while operating the hy-rail and that KCS was liable for punitive damages because Helton's conduct showed complete indifference to, and a conscious disregard for, the safety of others. Felix pleaded the necessary ultimate facts in his petition for punitive damages. Felix preserved Helton's alleged violation of the speed rule to support his claim for punitive damages by specifically objecting in his motion for new trial to the trial court's granting the directed verdict in light of this evidence. Ingle, 608 S.W.2d at 79.
KCS further claims that Felix voluntarily withdrew any speed issue from the case at the time the case was submitted to the jury because the verdict-directing instruction which Felix tendered and which the court gave for Felix's ordinary negligence claim did not submit excessive speed as an issue. This argument is without merit because (1) a party is not required to submit evidentiary facts in his verdict-directing instruction, McMullin v. Borgers, 806 S.W.2d 724, 730 (Mo. App. 1991), and (2) additional facts relating solely to a plaintiff's punitive damages claim need not be included in his ordinary negligence submission. Menaugh v. Resler Optometry, Inc., 799 S.W.2d 71, 74 (Mo. banc 1990).
E. Whether Felix Made a Submissible Case
Felix asserts that he made a submissible case for punitive damages because he established that Helton knowingly violated KCS rules requiring him to keep a constant lookout and requiring him to drive at a speed which would allow him to stop for obstructions, and that Helton knew his violation presented a high probability of injury. To recover punitive damages, a plaintiff must establish facts in addition to those relied on for the underlying negligence action. "Ordinarily punitive damages are not recoverable in an action for negligence because negligence, an omission of the duty to exercise care, is the antithesis of willful or intentional conduct." May v. AOG Holding Corporation, 810 S.W.2d 655, 661 (Mo. App. 1991).
The law, however, will infer intentional conduct from a negligent act if it manifests reckless indifference to the rights of others. Id.
"There may be conscious negligence tantamount to intentional wrongdoing, as where the person doing the act or failing to act must be conscious of his conduct, and, though having no specific intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions that his conduct will naturally or probably result in injury[.]"
Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc./Special Products, Inc., 700 S.W.2d 426, 435 (Mo. banc 1985)(citation and emphasis omitted). To justify punitive damages, the actor "must either know or have reason to know that his . . . act is substantially likely to cause physical harm." Id. As stated by the Missouri Supreme Court in Burnett v. Griffith, 769 S.W.2d 780, 787 (Mo. banc 1989)(footnote omitted):
Justified as punishment and intended to make an example of a defendant on account of his outrageous conduct, punitive damages require a showing of a culpable mental state on the part of the defendant, either by a wanton, willful or outrageous act or reckless disregard (from which evil motive is inferred) for an act's consequences. "Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or reckless indifference to the rights of others." Restatement (Second) of Torts, § 908(2) (1979). It is not so much the commission of the intentional tort as the conduct or motives--the defendant's state of mind--which prompted its commission that form the basis for a punitive damage award. . . . Plaintiff must prove that defendant's evil hand was guided by an evil mind.
Further, a violation of an industry custom or standard does not necessarily equate to a violation of a legal standard of care. "The duty of care is an objective standard determined by what an ordinary careful and prudent person would have done under the same or similar circumstances." Pierce v. Platte-Clay Electric Cooperative, Inc., 769 S.W.2d 769, 772 (Mo. banc 1989). Helton's knowing violations of KCS' rules do not in and of themselves establish a breach of his duty of care. It is a matter for the jury to decide whether an ordinary careful and prudent hy-rail driver would not have violated KCS' rules and whether the violations of the rules amounted to a reckless indifference to the rights of others and presented a high probability of injury.
Number 163 of KCS' Rules and Regulations for the Maintenance of Way and Signal Department provided, "Track car operators must approach persons, animals, equipment on adjacent tracks, etc., prepared to stop, and must keep a sharp lookout for all obstructions, especially in flangeways at grade crossings, guard rails, and frogs and for objects on the rail." On the day of the accident, Rule 163 applied to Helton's operation of the hy-rail. KCS' superintendent of rules testified that the rule required Helton to keep a sharp lookout at all times and to be prepared to stop for people or other obstructions on the track.
Helton admitted that when he hit Felix he was looking down and writing notes. He acknowledged in his deposition that he was not keeping a lookout for people although Rule 163 required him to do so. Although Helton later changed his testimony to say that the rule's reference to obstructions did not include people, the jury was entitled to consider Helton's deposition testimony and the subsequent changes. Further, Helton admitted at trial that he had violated Rule 163. Felix's attorney asked Helton:
Q: And you also agree that if you are keeping a sharp lookout for all obstructions, you would incidentally be looking out for people, too?
Q: So this rule  does require you to keep a lookout for people, does it not?
A: I don't know as far as all--just people itself.
Q: I understand that it's not limited to people but people are included in that rule, Mr. Helton, correct?
Q. The rule requires you to keep a sharp lookout all the time, does it not?
A jury could have found that Helton intentionally violated Rule 163 and determined that an ordinary careful and prudent hy-rail driver would not have done so under the same or similar circumstances.
Rule 138 provided that track cars, when occupying track limits within time granted, could move without flag protection at a restricted speed, which is defined as no more than 20 miles an hour. Rule 158, on the other hand, permitted automotive inspection vehicles to travel at 40 miles an hour or less "unless otherwise restricted." The jury could have reasonably concluded that the "unless otherwise restricted" phrase referred back to Rule 138's "restricted speed" limit of 20-miles-an-hour.
Smith initially testified in his deposition that Helton should have been operating the hy-rail at no more than 20 miles an hour. Smith later amended his deposition to say that Helton's speed limit was 40 miles per hour. He said that he changed his testimony after consulting with the head of the maintenance of way department and discovering that the rule had been amended orally. The oral amendment, he said, provided that if a track car was the only vehicle operating within the track and time limits within which it had been granted authority, the speed limit would be governed by Rule 158. If other traffic was within the track and time for which authority had been granted, the restricted speed limit of 20 miles per hour applied. The jury, however, was not required to give any weight to Smith's change in testimony because a "jury is the sole Judge of the credibility of the witnesses and the weight and value of their testimony and may believe or disbelieve any portion of that testimony." Schroeder, 833 S.W.2d at 414.
Helton admitted that he was driving at 25 to 30 miles per hour. A jury could have found that the speed limit was 20 miles per hour, that Helton willfully exceeded the speed limit and that an ordinary careful and prudent hy-rail driver would not have ...