Opinion
May 24, 1928.
1. — Appeal and Error — Assignments of Error, Not Mentioned in Brief, Will be Considered Abandoned. Assignments of error in admission and exclusion of evidence will be considered abandoned, where not mentioned in appellant's brief.
2. — Trial — Defendant Waived Demurrer to Evidence at Close of Plaintiff's Case by Proceeding With Trial. Defendant waived its demurrer to the evidence at the close of plaintiff's case by proceeding with the trial.
3. — Appeal and Error — Defendant, Offering Instructions, Submitting Questions of Plaintiff's Negligence in Certain Particulars was Estopped to Deny Sufficiency of Evidence for Jury Thereon. Defendant offering instructions, submitting questions of plaintiff's negligence in certain particulars, on court's refusal of instruction in nature of demurrer to evidence at close of whole case, estopped itself to deny sufficiency of evidence to go to jury on such issues, where several charges of negligence were made in petition.
4. — Master and Servant — Employer's Negligence, in Not Equipping Truck With Adequate Brakes and Failing to Properly Inspect and Repair it or Warn Employee of Defective Brakes, Held for Jury. In truck driver's action against employer for injuries sustained, evidence held sufficient to take to jury questions of employer's negligence in not equipping truck with adequate brakes, ordering plaintiff to use worn brakes with knowledge of their condition, and failing to properly inspect truck and keep it in repair or warn plaintiff of defective brakes.
5. — Automobiles — Statute Requiring Highest Degree of Care in Operating Motor Vehicles Does Not Apply to Operation Off Highway or Acts Required at Private Loading Platform When Not Being Operated (Laws 1921, 1st Ex. Sess. p. 91, sec. 19). Laws 1921 (1st Ex. Sess.), p. 91, sec. 19, requires highest degree of care by persons operating motor vehicle on highway only, and does not apply to one operating automobile elsewhere or doing act, such as scotching wheels, required at private loading platform when not being operated.
6. — Appeal and Error — Defendant, Not Offering Instructions on Plaintiff's Duty to Exercise Highest Degree of Care in Operating Motor Vehicle, Cannot Complain of Instruction Not Imposing Such Duty (Laws 1921, 1st Ex. Sess., p. 91, sec. 19). Defendant, not submitting case to jury by its own instructions so as to impose on plaintiff duty of exercising highest degree of care in operating motor vehicle under Laws 1921 (1st Ex. Sess.), p. 91, sec. 19, but merely offering instructions requiring exercise of proper care, cannot complain on appeal of instruction not placing such duty on plaintiff.
7. — Same — Appellant Must Abide by Theory Adopted Below. Defendant, on appeal, must abide by the theory adopted in the trial court as shown by the pleading and instructions.
8. — Trial — Instructions Ignoring Defense That Plaintiff Knew of Defective Truck Brake Held Erroneous as Not Based on Evidence. In action against employer for injuries to truck driver, instruction ignoring defense, based principally on plaintiff's testimony that he knew brake leyer was sprung, held erroneous, as not based on evidence.
9. — Master and Servant — Truck Driver's Knowledge of Defective Brake Would Not Preclude Recovery From Employer for Resulting Injuries, Unless Danger was so Obvious and Imminent That Ordinarily Prudent Man Would Not Have Used Truck. Truck driver's knowledge of defective condition of brake lever would not preclude recovery from employer for resulting injuries unless danger therefrom was so obvious and imminent that man of ordinary prudence would not have used truck under circumstances.
10. — Trial — Instruction to Find for Plaintiff, if He Set Emergency Brake After Backing Truck Against Platform, Held Erroneous as Assuming Fact That He Set Brake. In truck driver's action against employer for injuries resulting from defective emergency brake, instruction to find for plaintiff, if he backed truck against loading platform as ordered and pulled down brake to hold it in place, held erroneous as assuming that he performed full duty by setting brake, in view of his testimony that he knew it was bent and that surface of ground was sloping: portion of instruction requiring finding that he exercised due care while carrying load to truck not referring to his conduct in backing and parking truck.
11. — Same — Error in Instruction Assuming That Injured Truck Driver Performed Full Duty by Setting Emergency Brake, Which He Knew was Bent, Held Not Cured by Defendant's Instructions. Error in instruction assuming that truck driver, suing employer for injuries caused by defective emergency brake, performed full duty by setting brake, notwithstanding his testimony that he knew of its bent condition and sloping ground, held not cured by defendant's instructions covering such matters.
12. — Appeal and Error — Defendant Cannot Complain of Instruction Submitting Issue of Contributory Negligence Because Answer Did Not Specifically Charge Such Negligence. Defendant could not complain of instruction, as injecting issue of contributory negligence, not made by pleadings, and telling jury that defendant was negligent as matter of law, because answer did not specifically charge contributory negligence, but simply pleaded that plaintiff's negligence in particulars mentioned directly caused injuries sustained, as even specific plea of contributory negligence would not necessarily be admission of defendant's negligence.
13. — Negligence — Theory of Contributory Negligence Plea is That Plaintiff Cannot Recover, Even if Defendant was Negligent, if Likewise Guilty of Negligence Directly Contributing to Injury. The theory of the plea of contributory negligence is that plaintiff cannot recover, even if defendant was negligent, if plaintiff was likewise guilty of negligence directly contributing to injury.
14. — Master and Servant — Defendant, Not Being Liable if Injury Would Have Occurred Without Defendant's Negligence or Negligence of Both Parties Must Have Combined to Produce it, Need Not Plead and Prove That Plaintiff's Negligence Was Sole Cause. Defendant need not plead and prove that plaintiff's negligence was sole cause of injury, as, if injury would have occurred without defendant's negligence, or negligence of both parties must have combined to produce it, defendant is not liable.
15. — Appeal and Error — Defendant, Attempting to Plead and Prove That Plaintiff's Negligence Was Sole Cause of Injury, Could Not Complain of Instruction That Burden Was on Defendant to Establish Contributory Negligence. Instruction that burden was on defendant to establish plaintiff's contributory negligence, being more favorable to defendant than if latter's theory that burden was on it to plead and prove that plaintiff's negligence was sole cause of injury had been adopted, defendant could not complain.
16. — Same — Instruction That Defendant Must Establish Contributory Negligence Held Not Error, Though Injecting Issue Not Made by Pleading, in View of Defendant's Instruction Submitting Such Issue. Instruction that the burden was on defendant to establish plaintiff's contributory negligence held not erroneous, though injecting an issue not made by the pleading, in view of defendant's instruction submitting such issue.
17. — Trial — Instruction to Find for Plaintiff on Issue of Contributory Negligence, if Not Established by Defendant, Held Not Erroneous as Depriving Latter of Benefit of Plaintiff's Evidence. Instruction that burden was on defendant to establish plaintiff's contributory negligence, failing in which verdict must be for plaintiff on such issue, held not erroneous as depriving defendant of benefit of plaintiff's evidence on such question.
Appeal from the Circuit Court of Butler County. — Hon. Charles L. Ferguson, Judge.
REVERSED AND REMANDED.
Henson Woody for appellant.
Cope Tedrick for respondent.
This is an action to recover damages for personal injuries. Plaintiff was an employee of defendant company which was engaged in the wholesale grocery business. His duties required him to drive defendant's trucks. While loading cabbage for defendant at a cold storage plant, the truck into which he was loading the cabbage was backed against a platform. It seems that on account of the sloping condition of the ground at that particular place and the failure of the emergency brake to hold, the truck moved forward about three feet just as he attempted to step from said platform to the truck and he fell against the rear of the truck onto the ground, receiving the injuries complained of.
The negligence alleged in the petition is that the truck was not equipped with two sets of adequate brakes, but that the brakes were worn and would not hold the truck stationary when on a slight incline; that defendant knew of this condition but notwithstanding such knowledge it ordered plaintiff to use same; that defendant failed to properly inspect and keep said truck in repair and carelessly failed to warn plaintiff of the defective condition of the brakes. The answer consisted of a general denial and a further plea that plaintiff's injury was due wholly to his own negligence therein specified. On trial to a jury, plaintiff obtained a verdict and judgment for $2500. Defendant has appealed.
Error is assigned in (1) the admission of evidence, (2) exclusion of evidence, (3) overruling defendant's demurrer to the evidence offered at the close of plaintiff's case, (4) in giving plaintiff's instructions numbered 1, 2, 3, 4 and 5, and (5) in refusing defendant's demurrer at the close of all the testimony. In defendant's brief assignments one and two are not mentioned and they will be considered abandoned. Of course defendant waived its demurrer offered at the end of plaintiff's case by proceeding with the trial and therefore point three will not be considered.
We are also of the opinion that defendant is not now in a position to urge its general demurrer to the evidence offered at the close of the whole case. It will be noted the petition charges specific negligence in several particulars. Upon the court's refusal to give defendant's instruction in the nature of a demurrer to the evidence at the close of the whole case, defendant offered several instructions submitting the questions of defendant's negligence in not exercising proper care when he knew of the defect in the brake, also in failing to exercise proper care to secure said truck so that it would not run forward and as to his duty to, himself, have had the truck brake repaired. After thus defining and limiting the issues, there being several charges of negligence in the petition, defendant is estopped from denying that the evidence was sufficient to go to the jury upon each of the issues so submitted. [Davison v. Hines, 246 S.W. 295; Torrance v. Pryor, 210 S.W. 430.] In any event there was sufficient evidence to support the charges of negligence made in the petition. Plaintiff testified that: "The ground there was slanting from the platform. I had loaded thirteen sacks of cabbage, and, when I brought out the fourteenth sack and stepped on the truck it ran out and I fell through between the rear end of the truck and the platform, or porch. The truck had run forward. The front end of the truck when I backed it up was about four inches lower than the rear. After I fell I went around and looked at the emergency brake and found that the piece that had the notches in it was bent over a little. When you put the brake on you pull it clear back, this I did on this occasion. A sack of cabbage weighs about forty-five or fifty pounds. I did not know that the brake was bad. After I got back to defendant's place of business, I had a conversation with Mr. Gilmore, foreman, about the brake. I told him I thought it was sprung and he said he was aiming to take it and have it fixed before the accident."
On cross-examination he testified that he told the defendant's foreman a week or two before the accident that the lever on the brake was sprung and "he (the foreman) did not pay any attention to it." There was further evidence tending to prove that the brake was defective but that it had never slipped and permitted the car to move forward at this particular place, prior to the accident. There is no direct evidence that the condition of the car, on account of the defective brake, was so glaringly dangerous that a man of ordinary prudence would not have used it under the circumstances of this case. The foreman testified that he had intended to have the brake fixed before the accident but the garage man was busy and "told me he would fix it in a day or two." Under this evidence we think there can be no doubt that plaintiff made a case for the jury. [Plannett v. McFall, 284 S.W. 850.]
Defendant complains of plaintiff's instruction No. 1. In substance, it informs the jury that it was defendant's duty to furnish plaintiff with a truck that was equipped with reasonably safe brakes; that if they should find that plaintiff, in obedience to orders, drove one of defendant's trucks to the cold storage plant, backed the same up the incline and against the platform, pulled down the emergency brake to hold same in place and if they found the emergency brake lever was bent and worn to such an extent that it would slip forward, at times, releasing the brakes and that such condition, if any, was known to defendant and unknown to plaintiff and they failed to warn plaintiff; and if they further found that such condition of the emergency brake had existed for such length of time that defendant, in the exercise of ordinary care, could have discovered it and have notified plaintiff but failed to do so, then defendant was guilty of negligence in ordering plaintiff to use said truck; that if they further found that while plaintiff was carrying cabbage from the cold storage house to the truck and while he was exercising due care and caution for his own safety, he stepped from said platform onto the truck and as he did so the brake lever slipped, permitting the truck to run forward, causing plaintiff to fall, the verdict must be for plaintiff.
Defendant points out a number of alleged defects in this instruction, among them being that it failed to place upon plaintiff the duty of exercising the highest degree of care as required by Laws of Missouri, Extra Session, 1921, p. 91, sec. 19, and that, as a matter of law, he failed to exercise such highest degree of care. The law of 1921 referred to applies to persons operating a motor vehicle on a highway. It should not be construed to apply to a situation where the automobile was neither being operated on a highway nor to the doing of an act, such as scotching the wheels, that might be required at a private loading platform when the automobile was not being operated. None of the cases cited by defendant support its theory. Moreover defendant did not submit the case to the jury, by its own instructions, so as to impose upon plaintiff the duty of exercising the highest degree of care. Defendant's instructions, one and two, require plaintiff to exercise only "proper care," which might or might not be the highest degree of care. It appears both from the pleadings and instructions that, under the trial theory, plaintiff was not required to use the highest degree of care as provided by statute. Defendant, on appeal, must abide by the theory adopted in the trial court. [Thompson v. Energy Const. Co., 295 S.W. 525, l.c. 527; Plannett v. McFall, supra.]
Defendant further objects to this instruction because it permits the jury to find, contrary to the fact testified to by plaintiff himself, that the defective condition of the emergency brake was unknown to him. Plaintiff testified, in effect, that he knew the brake lever was sprung and complained to the foreman. The defense was based principally on that fact as shown by defendant's answer and instruction. Plaintiff's instruction ignores that defense and the evidence in support thereof. We believe the instruction adopts a theory to which plaintiff was not entitled under the pleadings and evidence. His knowledge of the defect in the brake would not, of course, have precluded a recovery unless the danger therefrom was so obvious and imminent that a man of ordinary prudence, under the circumstances, would not have used the car. But the instruction ignores entirely the admitted and undisputed fact that plaintiff knew of the defective condition of the brake lever and authorizes the jury to find that he had no such knowledge. The instruction is not based on the evidence and is erroneous. [Latham v. Harvey, 203 Mo. App. 363, 218 S.W. 401; Kassman v. St. Louis, 153 Mo. 293, 54 S.W. 513; Nixon v. Railroad Co., 141 Mo. 425, 42 S.W. 942; Hayt v. Kansas City Stockyards, 188 S.W. 106; Bliesner v. Dist. Co., 157 S.W. 980, 174 Mo. App. 139.] Moreover the instruction, in attempting to cover the whole case and in directing a verdict for plaintiff should not assume that plaintiff had performed his full duty by simply setting the emergency brake. In view of his own testimony that he knew of the bent condition of the brake lever and the further fact that the surface of the ground where he parked the truck was sloping, it seems that other elements of due and proper care were involved in the case. Although the instruction required the jury to find plaintiff was exercising "due care and caution for his own safety," while he was carrying a load of cabbage to the truck, yet it cannot be fairly assumed that this portion of the instruction referred to his conduct in backing and parking the car at the platform. The instruction was so drawn that the jury might easily have been misled thereby. These matters were perhaps covered in defendant's instructions but that did not cure the error.
Plaintiff's instruction No. 4, is as follows: "The jury are instructed that the defendant in this case has, among other defenses, plead contributory negligence, that is that the plaintiff, Chester Alexander, was guilty of negligence on his part, and in this connection the court instructs you that the burden of proof is upon the defendant to establish to your reasonable satisfaction by a preponderance of the evidence such contributory negligence on the part of said plaintiff, and the court instructs you that if the defendant has failed so to do, then your verdict will be for the plaintiff and against the defendant as to this issue."
It is contended that this instruction is erroneous because (1) it injects an issue not made by the pleadings, that of contributory negligence and (2) for the reason it told the jury, as a matter of law, that defendant was negligent; also (3) because it precluded the jury from considering the evidence of plaintiff as establishing contributory negligence and (4) because it is in conflict with defendant's instructions one and two.
The first two objections are so closely related they may be considered together. It is true, as defendant states, that the answer does not specifically charge plaintiff with contributory negligence, but simply pleads that the negligence of plaintiff, in the particulars therein mentioned, directly caused whatever injuries he may have sustained. However, we are unable to perceive in what manner such state of the pleadings can be of advantage to defendant on the question of the submission of contributory negligence. If the answer had specifically pleaded contributory negligence such plea would not necessarily be an admission of negligence on the part of defendant. The theory of the plea of contributory negligence is that, even if defendant be found guilty of negligence, plaintiff cannot recover if he is likewise guilty of negligence directly contributing to cause the injury. In attempting to plead and prove that plaintiff's negligence is the sole and only cause of the injury, defendant assumed a burden greater than the law required. If the injury would have occurred without defendant's negligence or if it required both the negligence of defendant and plaintiff combined to produce the effect, defendant is not liable. [Tibbels v. Ry. Co., 219 S.W. 109.]
Had the instruction complained of informed the jury that the burden was on defendant to prove by the preponderance of the evidence that plaintiff's negligence was the sole cause of the injury, it would perhaps have been in harmony with the contention now made by defendant, although the law would not ordinarily place such burden upon it. Having received an instruction more favorable than it would have received had its theory been adopted, defendant is in no position to complain. It also appears that defendant itself submitted the issue of contributory negligence in its instruction No. 2. We hold against defendant on this assignment.
It is insisted under point (3) that instruction No. 4, deprived defendant of the benefit of plaintiff's evidence on the question of contributory negligence. Our Supreme Court has decided that question adversely to defendant in considering an identical instruction arising under a similar state of facts and any further discussion thereof seems unnecessary. [Lane v. Mo. Pac. Ry., 132 Mo. 4, l.c. 18, 33 S.W. 645, 1128; Murray v. Mo. Pac., 101 Mo. 236, 13 S.W. 817, l.c. 818.] The instruction does not conflict with defendant's instructions and we find no error therein.
The judgment should be reversed and remanded for error in giving plaintiff's instruction No. 1. It is so ordered.
Cox, P.J., and Bradley, J., concur.