Doyle v. Wilmesherrer
| Decision Date | 16 July 1962 |
| Docket Number | No. 48883,No. 2,48883,2 |
| Parties | James DOYLE, a Minor, by Next Friend, Charles Doyle, Respondent, v. Harry WILMESHERRER, Appellant |
| Court | Missouri Supreme Court |
Alexander & Robertson, Ernest E. Baker, Leo C. De Voto, Jr., St. Louis, for appellant.
John W. Waller, Sullivan, G. C. Beck-ham, Steelville, for respondent.
STOCKARD, Commissioner.
Defendant has appealed from a judgment in the amount of $18,000 in favor of plaintiff for personal injuries resulting in the amputation of his left foot. We refer to the parties as designated in the trial court.
Plaintiff was 17 years of age when injured and 19 years of age at time of trial. He had not completed the eighth grade in school. For the most part his testimony consisted of 'yes' and 'no' answers given to loading questions on both direct examination (without objection) and on cross-examination. Defendant did not testify and he offered no evidence. Plaintiff was the only witness who testified to the circumstances leading up to or resulting in his injury. Therefore, our statement of the evidence consists principally, but not entirely, in relating the substance of leading questions to which plaintiff gave either a 'yes' or 'no' answer.
After working for defendant shelling corn plaintiff rode in defendant's three-quarter ton truck to Cuba, missouri, and to the Cuba Feed and Grain Company where the loaded truck was weighed. Defendant drove the truck to the north side of the building to unload it, and to do so he intended to operate or drive the truck backward up a ramp or an inclined driveway into a hallway or passageway where the grain could be shoveled into a bin. Defendant told plaintiff to go up 'there,' apparently referring to the top of the incline, to direct him in the operation of the truck. Plaintiff walked up the driveway and stood in the hallway, on the side, right by the silo back against a post. He was 'out of the traveled portion of the hallway.' Defendant's truck had a flat bed with sideboards to hold grain. The bed was wider than the cab, and the only way one in the cab could see to the rear of the truck was to look back over his right shoulder and out of the window in the rear of the cab. It was difficult to see 'in the window' of the cab because of the sideboards. Plaintiff could not see defendant in the truck 'all of the time.' Defendant had difficulty in backing the truck up the incline because the driveway was 'kind of muddy.' On the first attempt the truck 'slid' and did not stay 'in the lane.' On the second attempt it again 'slid' and 'stopped right on the incline.' Apparently it was on the third attempt that plaintiff was injured. On direct examination plaintiff said that the truck 'got crossways and came over and pinned me against that post.' On cross-examination, without first asking whether or not the truck skidded or slid, counsel for defendant asked plaintiff if he jumped to the right 'when you saw the truck skidding toward you,' and plaintiff answered 'No.' He then asked plaintiff which way he moved 'when you saw the truck sliding,' and plaintiff answered 'Here.' In the cross-examination that followed these questions were asked and answers were given:
'Q. Jim, when you saw that truck backing up you didn't get out of the way; you didn't expect it to slide, did you?
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'Q. Jim, how far away from you was it when it started to slide?
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Plaintiff was then asked on redirect examination the following questions and he gave the following answers:
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It is noted that the questions and answers on redirect examination apparently do not refer to the third attempt to back the truck up the incline, and if we interpret the evidence correctly, it was on the third attempt that plaintiff was injured.
Defendant's first point on this appeal is that the trial court erred in denying his motion for a directed verdict 'because plaintiff failed to prove that defendant committed any act of negligence alleged in [his] petition * * *.' Plaintiff abandoned all pleaded theories of negligence not submitted, Stroh v. Johns, Mo., 264 S.W.2d 304, and it has long been the rule that a petition will be treated as amended to conform to the evidence which was admitted without objection. Gooch v. Lake, Mo., 327 S.W.2d 132, 134; Dawley v. Hoy, Mo., 341 S.W.2d 111, 115 Civil Rules 55.54 and 74.30, V.A.M.R. Our subsequent discussion in connection with the alleged error in plaintiff's verdict-directing instruction will demonstrate that the evidence clearly establishes a submissible case. The motion for a directed verdict was properly overruled.
Instruction No. 1, in its material parts, hypothesized that the defendant was driving and operating his truck in reverse gear up an incline and into a driveway on the premises of the Cuba Feed and Grain Company; that he 'knew that the plaintiff was in or near the driveway immediately behind said truck;' that 'the defendant did then and there negligently drive said truck in reverse gear up said incline without keeping a lookout for persons behind and to the left of said truck, and especially this plaintiff;' and 'that at said time and place the defendant then and there drove and guided said truck in such a negligent manner that said truck did not stay in the center and traveled portion of said driveway, and that defendant negligently permitted said truck to travel to the extreme west edge of said driveway, and west of the traveled portions of said driveway, if you so find, and thereby caused said truck to strike and collide with plaintiff, if you so find; and * * * that as a direct and proximate result of said collision, * * * the plaintiff sustained a bodily injury,' then the jury should find for plaintiff.
Defendant first contends that this instruction ignores the admitted fact of skidding, and that evidence of mere skidding alone does not make a submissible case. This latter contention is true if there is 'nothing more' than skidding, Evans v. Colombo, Mo., 319 S.W.2d 549, 550, or the evidence shows that skidding 'is the 'sole factual cause." Rodefeld v. St. Louis Public Service Company, Mo., 275 S.W.2d 256, 258. The evidence in this case shows that the immediate cause of plaintiff's injury was that the truck slid or turned sideways and struck him, but the evidence shows more than mere skidding as the factual cause. Defendant knew plaintiff was back of his truck, and he had twice tried unsuccessfully to back the truck up the muddy incline but could not because it spun its wheels and on one occasion slid or skidded out of 'the lane.' Therefore, a jury could reasonably find that defendant was negligent in attempting to back the truck up the incline the third time when he knew of plaintiff's presence and when he knew or should have known of the likelihood of it skidding or sliding sideways. In addition, the jury could also find that defendant was negligent in the operation of the truck by causing the wheels to spin when he knew or should have known that spinning the wheels would likely cause the truck to slide or move sideways. We do not purport to say that the above two theories are the only basis on which negligence on the part of defendant could be found by the...
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... ... King, Mo.App., 385 S.W.2d 831, 834(6), Doyle ... Page 212 ... v. Wilmesherrer, Mo., 358 S.W.2d 837, 841(7), Prince v. Bennett, Mo., 322 S.W.2d 886, 890(2), Evans v. Colombo, supra, ... ...
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...instruction is said to be erroneous as ignoring the real issue, or excluding it from the jury's consideration. Doyle v. Wilmesherrer, Mo., 358 S.W.2d 837, 841; Kitchen v. Wilson, Mo., 335 S.W.2d 38, 45; Evans v. Colombo, Mo., 319 S.W.2d 549, 552-553; Karch v. Stewart, Mo., 315 S.W.2d 131, 1......
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