Payne v. Carson
| Decision Date | 14 November 1949 |
| Docket Number | 41031 |
| Citation | 224 S.W.2d 60 |
| Parties | Velma Payne, Appellant, v. George C. Carson, Respondent |
| Court | Missouri Supreme Court |
From the Circuit Court of Jackson County, Civil Appeal, Judge Paul A. Buzard
Affirmed
Velma Payne, plaintiff-appellant, appeals here after an adverse verdict and judgment in her personal injury action for $20,000. She now contends that two of defendant's instructions were reversibly erroneous. We refer to the parties as plaintiff and defendant.
After a surgical operation in a hospital plaintiff employed the defendant, who operated ambulances for hire, to move her from a hospital in Kansas City to her home in Independence. She alleged that as she was being carried on the ambulance cot from the ambulance up the steps leading to her home the defendant's employees, so carrying her, permitted the cot and plaintiff to be dropped and to fall thus causing her to be injured. Mr. Spry, one of defendant's employees carrying the cot, testified that when he and Mr. McFarland the other attendant carrying plaintiff upon the cot, reached the top of the terrace, about 12 feet from the curb and ambulance, his right foot went into a hole which was concealed by grass. His ankle turned and he went down to his knees but the cot was not dropped. The cot was set down on the ground by both attendants and was kept level. The hole was to or three inches deep, covered with grass and was not observable. He did not see the hole before he stepped into it.
Plaintiff's case was pleaded upon the res ipsa loquitur doctrine. Her proof was based on that doctrine. Her cause was submitted in her main instruction number 1 upon that theory. That instruction, among other things, told the jury, "* * * that it was the legal duty of defendant to exercise due care to transport plaintiff to her home, and that defendant would be responsible for negligence, if any, on the part of his employees while engaged in carrying plaintiff, * * * and if you find that (while carrying plaintiff) * * * defendant's * * * employees * * * permitted said cot to be dropped * * * that said * * * ambulance cot was * * * exclusively * * * under the control of defendant * * * and * * * that * * * said cot being so permitted to drop * * * was extremely unusual * * * and that in the usual conduct of such business * * * such would not usually occur * * * you may infer that defendant was negligent, and you may so find unless you find * * * that such occurrence (dropping of the cot) was not due to defendant's negligence; and if you do find * * * that defendant was negli9ent * * * then your verdict shall be for plaintiff". (Emphasis ours)
It is first contended that defendant's given instruction 4 uas reversibly erroneous. That instruction was as follows: "The court instructs the jury that if you find and believe from the evidence that the employees of the defendant were carrying the plaintiff from the ambulance into her house, and that while so doing, one of said employees, without negligence on his part, stepped into a hole or depression which caused him to fall, and that the dropping, if any, of the ambulance cot which plaintiff was upon, was directly and solely caused by such occurrence, and that the employees were not ne9liqent, then your verdict should be in favor of the defendant". (Emphasis ours) Plaintiff contends that instruction 4 is erroneous because it fails to define negligence, fails to hypothesize the evidence on which the absence of defendant's negligence can be predicated and submits an issue of law.
Plaintiff's main instruction number 1 advised the jury that (1) defendant was under a legal duty to use due care to transport plaintiff (the failure to so use due care being negligence) (2) defendant was responsible for negligence (3) which could be inferred from the facts predicated (4) and which (negligence) the jury was authorized to find (5) unless the jury found the dropping of the cot was not due to defendant's negligence, (6) but if they found defendant was negligent the verdict should be for plaintiff. Defendant's instruction 4 was substantially the converse of plaintiff's main instruction number 1. And the instructions must be considered as a whole.
If plaintiff desired the jury to be more specifically instructed upon the meaning of the word "negligence" than they were in her main instruction, it was incumbent upon her to ask such definitive instruction. Engleman v. Railway Express Agency, 340 Mo. 360, ...
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