Ballew v. Schlotzhauer
| Decision Date | 09 April 1973 |
| Docket Number | No. 1,No. 56616,56616,1 |
| Parties | Rollie D. BALLEW, Appellant, v. Paul SCHLOTZHAUER, Respondent |
| Court | Missouri Supreme Court |
Dale Reeseman, Larry E. Tate, Boonville, for appellant; Williams Reesman & Tate, Boonville, of counsel.
W. F. Daniels, Fayette, for respondent.
This is a motor vehicle personal injury case. Plaintiff-appellant appeals from an adverse judgment entered on a jury verdict in favor of defendant. The amount involved is $95,000 and the appeal was taken prior to January 1, 1972. This court has jurisdiction. Sec. 477.040 RSMo 1969, V.A.M.S. Art. V, § 31(4), Mo.Const.1945, as amended 1970, V.A.M.S.
On the afternoon of December 12, 1964, the New Franklin Lions Club sponsored a Christmas parade in downtown New Franklin, Missouri. All participants in the parade were volunteers. Plaintiff portrayed Santa Claus and was riding on the bed of a flatbed truck owned and operated by a defendant. The truck had no side boards but did have a front-end gate on the bed at the cab end. The bed was 13 feet long by 8 feet wide and on it were boxes of candy treats for the children.
The parade proceeded east on Broadway. Plaintiff was riding on the bed of the truck waving to the children and at a certain point the truck stopped and treats were handed out to the children. The truck then again proceeded east on Broadway. Plaintiff was not holding on to supports. Two other men were also on the truck bed. They were close to the cab end and holding on the end gate or the cab. In prior years plaintiff rode on the flat-bed truck, portraying Santa Claus in the same way as on the instant occasion. The truck was traveling about two to three miles per hour behind a marching band, and it was expected to make a 'U' turn at the east end of Broadway. Up to this point everything proceeded in the manner it had in previous years and without incident. As the truck proceeded into the 'U' turn, plaintiff fell off the truck bed and was injured. There was evidence that defendant knew the other two men were holding on to the front-end gate and believed plaintiff was waving to the children because that is what the plaintiff had always done. Defendant testified he didn't know if plaintiff was holding on to anything but defendant wanted to be especially careful in driving the truck because he presumed plaintiff would be waving to the children.
There was evidence that as the truck reached the east end of Broadway the defendant, without warning, accelerated and the truck cut or turned to the right and then to the left with a jerk or jolting motion making a sudden turn, and this movement threw plaintiff off balance and off the truck bed. Defendant testified that he did not accelerate the truck and there was no jerk or sharp turn to the right or left, but that upon reaching the east end of Broadway he made a slight turn to the right and then began to make the left turn when plaintiff fell off the truck bed.
Plaintiff contends the court erred in giving instruction No. 6--the contributory negligence instruction. This instruction authorized, by one of its disjunctive submissions, a verdict for defendant if the jury found that plaintiff rode 'upon an open truck bed'; that in so doing plaintiff was negligent, and that such negligence directly caused or directly contributed to cause any damage to plaintiff. In short, the jury was told it could premise a finding of contributory negligence upon the single fact that plaintiff was present on the flat-bed truck. The issue on this appeal is whether or not there was sufficient evidence from which the jury could find that the act of being on the flat-bed truck was a negligent act. The word 'negligent' is emphasized because there is no question as to whether or not plaintiff was, as a matter of fact, on the flat-bed truck. Plaintiff's presence on the flat-bed truck was pleaded and proved by plaintiff and constituted, in part, the basis for plaintiff's claim and was also part of defendant's evidence.
However, whether the sole fact that plaintiff rode on the bed of the truck was a sufficient factual basis to premise a finding of contributory negligence depends upon the surrounding facts and circumstances in evidence. The issue as presented in this case is similar to that presented in Turpin v. Shoemaker, 427 S.W.2d 485 (Mo.1968). There two adults engaged in a 'quick draw' contest believing that both guns were unloaded but, unfortunately for Turpin, Shoemaker's gun was loaded and Turpin was killed. The jury found for defendant Shoemaker, and on appeal one of plaintiff's points was that the court erred in submitting an instruction which authorized a determination of contributory negligence if the jury found that Turpin '(v)oluntarily engaged as a participant in and engaged in a 'quick draw' contest with real firearms.' The court held that contributory negligence was a submissible issue under the evidence but did not approve of the instruction by which the issue was submitted, stating at 491, 'The real contributory negligence, if there was any, was the act of engaging in the contest without making a reasonable investigation of the status of defendant's revolver.' In short, the court held under the facts in evidence that the mere fact of engaging in the quick-draw contest with real firearms was not a sufficient hypothesis upon which to predicate contributory negligence.
In the instant case the parts to be played by those participating in the parade, particularly the truck driver (defendant) and Santa Claus (plaintiff), were well understood by all concerned from prior years of participating in the same event. It was known to plaintiff and defendant and others that the truck would proceed very slowly and that Santa Claus would be waving to the children from his position on the bed of the truck. Thus, in this case, the presence of plaintiff on the bed of the truck is the same as engaging in the quick-draw contest in Turpin, supra. In Turpin the court held that under the evidence in that case a jury could have found that Turpin should have anticipated a likelihood of danger so as to cause him to make a reasonable inspection of the status of Shoemaker's gun. In the instant case, the jury could under the evidence find that plaintiff should have anticipated the likelihood of danger of falling off the truck so as to cause him to hold on to something but, under the questioned submission, the jury was not required to so find as...
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