Searcy v. Neal, 27918

• Decision Date: 04 April 1977
• Docket Number: No. 27918,27918
• Citation: 549 S.W.2d 602
• Parties: Lloyd SEARCY, Appellant, v. John C. NEAL, Jr., Respondent.
• Court: Missouri Court of Appeals

Page 602

549 S.W.2d 602

Lloyd SEARCY, Appellant, v. John C. NEAL, Jr., Respondent.

No. 27918.

Missouri Court of Appeals, Kansas City District.

April 4, 1977.

Thaine Q. Blumer, Kenneth E. Arnold, Kansas City, for appellant.

Miller and O'Laughlin, P. C., George T. O'Laughlin, Bernard M. Jung, Kansas City, for respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

ANDREW J. HIGGINS, Special Judge.

Appeal from verdict and judgment for defendant in action for personal injuries sustained by plaintiff when the motor vehicle he was operating ran off the highway. The question is whether the instruction which submitted plaintiff's contributory negligence was supported in the evidence. Affirmed.

In October, 1965, plaintiff was employed by defendant as a farm hand; his duties included operation of defendant's trucks. On October 31, 1965, plaintiff was operating defendant's 1964 model GMC truck equipped with dual rear wheels and tires loaded within limits with 18,000 to 25,000 pounds of grain, southbound on U.S. Highway 69 near Liberty, when the truck ran off the highway, overturned, and injured plaintiff following a blowout of one of the right rear tires.

Plaintiff's theory, as submitted by his verdict-directing instruction, was that defendant's truck was equipped with a tire that had been cut and repaired making it unsafe for use; that it blew out; that defendant knew, or should have known, that the tire was unsafe; that he was thereby negligent, and that as a result, the truck overturned and plaintiff was injured.

Defendant's theory was that plaintiff's own negligence caused or contributed to cause the casualty and his injury. It was submitted by Instruction 4:

"Your verdict must be for the defendant, whether or not defendant was negligent, if you believe:

"First, plaintiff knew or in the exercise of the highest degree of care would have known that to make a sudden hard application of the brakes on the truck immediately after a tire blowout would be likely to cause plaintiff to lose control of the truck; and

"Second, plaintiff made a sudden hard application of the brakes immediately after hearing the blowout of a tire on the truck and thereby was caused to lose control of the truck; and

"Third, plaintiff's conduct in the respect submitted in paragraph Second was negligent; and

"Fourth, such negligence of plaintiff directly caused or directly contributed to cause the truck driven by plaintiff to overturn."

Appellant charges the court erred in giving Instruction 4, asserting there was no evidence that plaintiff knew or would have known that a sudden hard application of the brakes would cause him to lose control or that his loss of control of the truck was caused by the application of the brakes. He argues that defendant's burden of proving plaintiff's contributory negligence, Thompson v. Southwestern Bell Telephone Co., 451 S.W.2d 147 (Mo.1970), was not met; and that each proposition was not supported by substantial evidence as required, Ryan v. Manheimer, 435 S.W.2d 366 (Mo.1968); Williams v. Cavender, 378 S.W.2d 537 (Mo.1964).

The evidence in support of the instruction on contributory negligence, considered favorably to defendant with a disregard for plaintiff's evidence unless it tends to support the submission as required, Rickman v. Sauerwein, 470 S.W.2d 487 (Mo.1971), Worley v. Tucker Nevils, Inc., 503 S.W.2d 417 (Mo. banc 1973), Ogden v. Toth, 542 S.W.2d 17 (Mo.App.1976), demonstrates that the court properly submitted the question...