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Willman v. Wall3/14/2000
A (Erica): Probably half the time, the speed that my dad was going.
Q: Tell us again how fast your father's vehicle was going just prior to the accident?
A: Between 65 and 70.
Q: Which would mean that based upon your observation the speed of the van was how much prior to the accident?
A: Probably 35 miles.
Q: Is that your best estimation?
A: Yeah.
During cross-examination, the following colloquy occurred:
Q (Plaintiff's Counsel): How fast was the van going? Do you, do you know how fast it was going?
A (Erica): I was guessing around 35 to 40.
Q: Okay.
A: Because we, there was nobody in front of us when, when he [Mr. Wall] looked over. I mean---Q: And why are you guessing that?
A: Because he didn't look off the road for like very long and there was like nobody in front of us, and it was a clear way, so---it---all I know is it was going really slow.
Q: Okay. But the actual speed is just a guess, right?
A: It's just a guess.
Following the offer of proof, the trial court sustained Mr. Willman's objection to Erica's testimony concerning the speed of his vehicle based on lack of foundation. The court based its ruling on "the very slight amount of time in which the witness observed" Mr. Willman's vehicle and her "lack of experience regarding speed" noting that Erica had never driven a car and rarely paid attention to vehicle speed. The trial court did not abuse its substantial discretion in excluding Erica's testimony on the issue of the speed of Mr. Willman's vehicle at the time of the accident. The ruling that Erica was not qualified to estimate the speed of Mr. Willman's vehicle was not so arbitrary and unreasonable as to shock the sense of justice and did not indicate a lack of careful consideration by the trial court. In this case, reasonable people could differ about the propriety of the trial court's action. The trial court, therefore, did not abuse its discretion. Point one is denied.
II.
In his second and third points on appeal, Mr. Wall claims that the trial court erred in denying his motion for new trial or remittitur. Mr. Wall contends in his second point that the verdict should have been set aside and a new trial ordered because the $180,000 verdict was so excessive as to demonstrate bias, passion, and prejudice on the part of the jury. In his third point, Mr. Wall argues that the trial court should have granted remittitur because the verdict exceeded fair and reasonable compensation for Mr. Willman's injuries.
The assessment of damages is primarily a function of the jury. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 448 (Mo. banc 1998). A trial court has great discretion in approving a verdict or setting it aside as excessive. Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 174 (Mo. App. W.D. 1997). An appellate court, therefore, "will interfere only when the verdict is so grossly excessive that it shocks the conscience of the court and convinces the court that both the jury and the trial court abused their discretion." Id. (quoting Fust v. Francois, 913 S.W.2d 38, 49 (Mo. App. E.D. 1995)).
An excessive verdict resulting from jury bias and prejudice requires a new trial. Letz, 975 S.W.2d at 175; Barnett v. LaSociete Anonyme Turbomeca France, 963 S.W.2d 639, 655 (Mo. App. W.D. 1997), cert. denied, 119 S.Ct. 75 (1998). A new trial based on an excessive verdict will only be granted upon a showing of trial court error. Letz, 975 S.W.2d at 175. The size of the verdict alone will not establish jury bias, passion, or prejudice. Id. "The complaining
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