Nichols v. Steffan
| Decision Date | 11 March 1957 |
| Docket Number | No. 1,No. 45348,45348,1 |
| Citation | 299 S.W.2d 417 |
| Parties | Raymond NICHOLS, Plaintiff-Appellant, v. Orville STEFFAN, a Minor, by Harry Steffan, his Guardian ad litem, Defendant-Respondent |
| Court | Missouri Supreme Court |
Jack H. Ross, Koenig, Dietz & Mason, William L. Mason, Jr., St. Louis, for appellant.
Dearing, Richeson & Weier, Will B. Dearing, Hillsboro, for respondent.
This is a suit for personal injuries. The amount sued for is $40,000. Plaintiff Nichols claimed he was injured when the defendant negligently moved a truck loaded with hay causing plaintiff to fall therefrom. Defendant Orville Steffan, a minor, represented in this case by his father, Harry Steffan, as his guardian ad litem, claimed he was not negligent and that plaintiff was guilty of negligence which caused him to fall and to be injured. A trial resulted in a jury verdict for the defendant and plaintiff appealed.
Plaintiff briefed three points. The first two points are directed to the giving of instructions by the trial court at defendant's request. In the third, plaintiff complains of the refusal of the trial court to give an instruction at plaintiff's request.
On December 4, 1953, plaintiff went to the Steffan home, located a short distance from where plaintiff lived, for the purpose of borrowing a 1 1/2-ton truck to haul hay from a railroad car at Chesterfield, St. Louis County, Missouri. Defendant, then 17 years old, was at home and offered to drive the truck and to help plaintiff get the hay. They drove to a railroad siding at the Farm Bureau Service Company where the truck was backed up to the door of the boxcar containing the hay and the two proceeded to load the baled hay onto the truck. There was a dispute as to what happened after the loading was completed. Plaintiff testified that he and the defendant alighted from the boxcar, sat on the ground and smoked a cigarette; that he then told defendant he would climb 'on top of the load of hay and take the rope from him when he threw it up to me to help him tie the hay down'; that he (plaintiff) climbed up on the load at about the rear wheel of the truck; that when plaintiff reached the top of the load, defendant without any warning moved the truck forward; that this movement caused plaintiff to lose his balance and to fall to the ground seriously injuring him; that the last time he saw defendant, before the truck was moved, was when defendant was walking toward the front of the truck. There were about 85 bales of hay on the truck and the top of the hay was about 12 feet above the ground.
Defendant's version of what happened was that after the hay was loaded, he told plaintiff to stay in the boxcar while he, the defendant, moved the truck forward and away from the boxcar; that the last time he saw plaintiff, before the truck was moved, he was in the boxcar and that plaintiff did not tell him he intended to climb up on the load of hay. Other facts will be stated in the course of the opinion.
Instruction No. 2, of which plaintiff complained, reads as follows: 'The Court instructs the jury that if you find and believe from the evidence that plaintiff and defendant were engaged in the unloading of hay from a boxcar onto a truck and that the defendant started toward the front of the truck after advising the plaintiff of his intention of moving it forward and that the plaintiff climbed onto said truck which was loaded with baled hay and that the plaintiff knew or by the exercise of ordinary care could have known that his footing on the top of the load of baled hay would be insecure and that he failed to direct the driver to hold the truck at a standstill while he was on said truck and failed to inform the defendant of his intention of getting onto said load of hay and in so failing, if you find he did, plaintiff failed to exercise ordinary care for his own safety, then you are instructed that under the law the plaintiff is chargeable with contributory negligence and under such circumstances he is not entitled to recover, and this is true even though you may find from the evidence that the defendant himself was guilty of negligence in some manner which may also have contributed to bring about the plaintiff's fall and injuries.'
Plaintiff's first criticism of this instruction is that 'the instruction assumes a material, controverted fact in that it assumes, without requiring the jury to find, that defendant advised plaintiff of his intention of moving the truck before doing so.' The cases of Menke v. Rovin, 352 Mo. 826, 180 S.W.2d 24, loc. cit. 27, and Anderson v. Kincheloe, 30 Mo. 520, were cited in support of that contention. The Anderson case is of no help to us in this case except that it holds that a disputed fact may not be assumed in an instruction. That is the correct rule. See Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, loc. cit. 567(8, 9), and cases there cited. Also 88 C.J.S., Trial Sec. 280, p. 752. In the Menke case, supra, the court considered an instruction, 180 S.W.2d loc. cit. 27(9, 10), a portion of which was there quoted, and determined that no fact was assumed in the instruction. The court stated further that We approve that ruling. The question then before us is whether the disputed fact in the case, that is, that defendant advised the plaintiff of his intention to move the truck, was submitted to the jury to determine or whether the instruction was so worded that such fact was assumed to be true. If we omit the facts stated in the forepart of the instruction about which there was no dispute, the instruction would read 'The Court instructs the jury that if you find and believe from the evidence * * * that the defendant started toward the front of the truck after advising the plaintiff of his intention of moving it forward * * *.' We do not see how a jury would conclude from the language that the disputed fact in question was assumed to be true. Plaintiff says that after the 'initial 'if you find and believe' heading this instruction, defendant separates every other fact submitted in this instruction from all others with an 'and." The word 'and' is a conjunction. 3 C.J.S., p. 1067 et seq. 'And' as used in the instruction joined all of the facts hypothesized therein and therefrom the jury was required to find all of such facts hypothesized after the words 'if you find and believe from the evidence.' See Lewis v. Illinois Central R. Co., Mo., 50 S.W.2d 122, loc. cit. 124, 125(1)(2-4); Van Loon v. St. Louis Merchants Bridge Terminal R. Co., 319 Mo. 948, 6 S.W.2d 587, loc. cit. 589, 590(1). We rule that the instruction did not tend to mislead the jury and that it required the jury to determine the question of fact in question.
Plaintiff next says that the instruction (No. 2) was not supported by evidence, that is, that there was no evidence that the defendant advised plaintiff of his intention of moving the truck. Plaintiff referred us to a number of pages in the record to prove his point. However, we find that the record does contain evidence, to which no reference was made, which was ample to support the instruction. Note the cross-examination of the defendant:
'Q. And then with reference to the statement--now, I believe the statement that you said, that your recollection was that you did the talking rather than Mr. Nichols and that you suggested to him, or stated to him, 'You stay in the boxcar while I go and move the truck?' A. That's right.
'
The point is ruled against plaintiff.
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... ... Browning, 217 S.W.2d 719, 721(4) (Mo.App.1949). It has further been held the word and is a conjunction. Nichols v. Steffan, 299 S.W.2d 417, 420(1, 2) (Mo.1957) ... In 3A C.J.S. p. 450, the word and is stated to "connects words or phrases ... ...