Cain v. Wintersteen

• Decision Date: 09 May 1910
• Citation: 128 S.W. 274,144 Mo.App. 1
• Parties: ESTELLA CAIN, Respondent, v. C. H. WINTERSTEEN, Appellant
• Court: Kansas Court of Appeals

128 S.W. 274

144 Mo.App. 1

ESTELLA CAIN, Respondent, v. C. H. WINTERSTEEN, Appellant

Court of Appeals of Missouri, Kansas City

May 9, 1910

Appeal from Clinton Circuit Court.--Hon. Alonzo D. Burnes, Judge.

AFFIRMED.

Judgment affirmed.

Elton T. Harris, John Abbot Clark and F. B. Ellis for appellant.

(1) The conduct of the jury on its first verdict evidences prejudice and passion, and the judgment should be set aside. Fallow v. Grantham, 66 Mo.App. 509; Spiro v. Transit Company, 102 Mo.App. 266; Richardson v Forebuckles, 122 Mo.App. 529; Whitsett v Ransome, 79 Mo. 258; Morris v. White, 188 Mo 20. (2) Evidence of the character of a horse is always admissible. If others saw this horse run away it was some evidence that the plaintiff knew it. The circumstances would warrant the plaintiff taking precautionary measures in driving this horse. If she did not do this she cannot recover. Defendant's instructions cover this view of the case but he was denied the right to prove it. Walter v. McArthur, 33 Mo.App. 218; Short v. Bohle, 64 Mo.App. 242; Boaest v. Darby, 12 Mo. 197; Hale v. Van Dever, 67 Mo. 732. (3) Plaintiff and defendant both tried this matter as though the answer had raised this question, and the plaintiff only objected because she said the character of this horse must be confined to the time plaintiff's husband owned it, that it is immaterial what his disposition was prior to that time. They cannot change front at this time. They must adopt the same theory in this court. David v. Cooper, 6 Mo. 148; Megehan v. Orme, 7 Mo. 4; Insurance Co. v. Harlan, 72 Mo. 202. (4) If this answer of defendant did not raise the defense of contributory negligence, plaintiff should have moved the trial court to make the answer more definite and certain. Having failed to do so, they are too late now. Linn v. Railroad, 79 Mo.App. 475.

F. B. Klepper and W. S. Herndon for respondent.

(1) The answer of the defendant did not plead contributory negligence, as claimed by appellant below. Ramp v. Railway, 133 Mo.App. 700. (2) Contributory negligence must be pleaded. Donovan v. Railroad, 89 Mo. 147; Stone v. Hunt, 94 Mo. 475; Keidel v. Railway, 28 Mo.App. 657; Kain v. Railroad, 29 Mo.App. 53. (3) Plaintiff objected to any evidence tending to show contributory negligence, because contributory negligence was not pleaded in the answer. The court overruled this objection and forced that issue on plaintiff. Appellant having tried the case below on the theory of contributory negligence, cannot take another theory here. Vaughn v. Fisher, 32 Mo.App. 29; Birge v. Bock, 44 Mo.App. 69; Swearinger v. Insurance Co., 66 Mo.App. 90; Drug Co. v. Bybee, 179 Mo. 354. (4) A general verdict would have been good, even if the cause had been submitted to the jury, under both counts. Brady v. Connolly, 52 Mo. 19; Raney v. Bader, 48 Mo. 539; Maguire v. Transit Co., 103 Mo.App. 472; Sam v. Rooney, 125 Mo.App. 184. (5) The action of the court in refusing to receive the so-called first verdict and giving the additional instruction 8, as to form of verdict, was proper. Duffy v. Day, 42 Mo.App. 638; Title & Trust Co. v. Brady, 165 Mo. 197; Buck v. Railway, 108 Mo. 179.

OPINION

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 one hundred and seventy dollars.

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 five hundred dollars for her personal injuries and twenty dollars 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 and that the runaway was caused by a vicious propensity of the horse and the negligent way in which he was being driven by plaintiff.

The answer, in addition to a general denial, contains the allegation that "plaintiff's alleged damages and injuries, if any she sustained, were caused by and directly due to the plaintiff's own carelessness and negligence." This was not a plea of contributory negligence but was a direct negation of the cause of action pleaded. [Ramp v. Railway, 133 Mo.App. 700.] Being a special defense, contributory negligence can be made an issue only by an affirmative averment in the answer. If not thus pleaded, it cannot be employed to defeat the cause of action except in cases where the evidence of the plaintiff affirmatively establishes the fact that his own negligence contributed to the production of his injury. In the present case, the evidence of plaintiff exculpates her from the imputation of negligence and, consequently, the issue of contributory negligence is not in this case.

The first question argued by defendant is one of practice. The instruction given on the measure of damages was as follows "The court instructs the jury that if they find for the plaintiff, they will assess her damages at such sum as they believe from the evidence will be a fair compensation to her, first, for any bodily pain and mental anguish which the evidence shows she will be a fair compensation to her, first, for any bodily pain and mental anguish which the evidence shows she will thereafter suffer by reason of said injury not to exceed the sum sued for, to-wit: five hundred dollars; second, for any damage to plaintiff's clothing which the evidence shows she has sustained, not to exceed the sum of twenty dollars, the whole...