Cain v. Wintersteen

• Decision Date: 09 May 1910
• Citation: 144 Mo. App. 1,128 S.W. 274
• Parties: CAIN v. WINTERSTEEN.
• Court: Missouri Court of Appeals

128 S.W. 274

144 Mo. App. 1

CAIN v. WINTERSTEEN.

Kansas City Court of Appeals. Missouri.

May 9, 1910.

Rehearing Denied May 23, 1910.

1. NEGLIGENCE (§ 117)—PLEADING—ANSWER —CONTRIBUTORY NEGLIGENCE.

Allegations in an answer that plaintiff's alleged injuries, if any she sustained, were caused by her own carelessness and negligence, was not a plea of contributory negligence, but a direct negation of the cause of action.

2. NEGLIGENCE (§ 117) — PLEADING — CONTRIBUTORY NEGLIGENCE.

Contributory negligence, being a special defense, can be made an issue only by an affirmative averment in the answer, and, if not thus pleaded, can defeat the cause of action only where the evidence of plaintiff affirmatively establishes that his own negligence contributed to the injury.

3. TRIAL (§ 339)—VERDICT—CORRECTION.

Where the court instructed the jury if they found for plaintiff to assess her damages, first, for bodily pain and mental anguish, and, second, for damages to her clothing, and the verdict was for plaintiff "on the first count of her petition" for $150, and "on the second count" for $20, there being in fact only one count, the court properly refused to receive the verdict, gave an instruction on its own motion on the form of the verdict, sent the jury out again, and received its second verdict for plaintiff for $170.

4. HIGHWAYS (§ 184)—USE FOR TRAVEL—INJURIES—EVIDENCE.

In an action for injuries from the frightening of a horse driven by plaintiff by an automobile, evidence of the character of the horse was admissible on the issue whether the proximate cause of the injury was the negligence of defendant, or the vice of the animal.

5. HIGHWAYS (§ 184)—USE FOR TRAVEL—INJURIES—EVIDENCE.

In an action for injuries from the frightening of a horse by an automobile, where there was no issue of contributory negligence, evidence of reputation of the horse was properly excluded, being inadmissible to show the character of the horse, and the question of plaintiff's knowledge being relevant only on the question of contributory negligence.

Appeal from Circuit Court, Clinton County; Alonzo D. Burnes, Judge.

Action by Estella Cain against C. H. Wintersteen. From a judgment for plaintiff, defendant appeals. Affirmed.

Elton T. Harris, John Abbot Clark, and F. B. Ellis, for appellant. F. B. Klepper and W. S. Herndon, for respondent.

JOHNSON, J.

This suit is for damages plaintiff alleges she sustained by the negligent manner in which defendant ran an automobile on a public road. A trial resulted in a verdict and judgment for plaintiff in the sum of $170.

Plaintiff, accompanied by another woman, was driving a horse attached to a buggy on a public road near Cameron. They met an automobile driven by defendant, and, according to the evidence of plaintiff, the horse became frightened at the approach of the machine and betrayed signs of becoming unmanageable. Defendant did not stop, and, as the machine passed, the horse became uncontrollable and ran away. Plaintiff sustained some personal injuries, and her clothing was damaged. She laid her damages at $500 for her personal injuries and $20 for the damage to her clothing. Her evidence tends to accuse defendant of negligence in not stopping the automobile after he saw, or should have seen, that the horse was becoming unruly. The petition is in two counts. The first pleaded statutory negligence; the second common-law negligence. The first count was dismissed before the submission of the cause to the jury. The evidence of defendant is to the effect that he was not negligent,...