Wallower v. Webb City

• Decision Date: 07 April 1913
• Citation: 156 S.W. 48,171 Mo. App. 214
• Parties: WALLOWER v. WEBB CITY et al.
• Court: Missouri Court of Appeals

156 S.W. 48

171 Mo. A. 214

WALLOWER v. WEBB CITY et al.

Springfield Court of Appeals. Missouri.

April 7, 1913.

On Motion for Rehearing, May 5, 1913.

1. APPEAL AND ERROR (§ 175) — THEORY OF CAUSE.

Where plaintiff tried his case on the theory that the issue of contributory negligence was raised by the pleadings, he was bound by such position on appeal, and could not thereafter successfully claim that instructions on that issue were improper, because it was not raised.

2. NEGLIGENCE (§ 119) — CONTRIBUTORY NEGLIGENCE — NECESSITY OF PLEADING.

Though contributory negligence is an affirmative defense, and in general must be alleged in order to be available, yet, if plaintiff's own evidences shows that he has been negligent, defendant may take advantage thereof, though the answer contains no such plea.

3. MUNICIPAL CORPORATIONS (§ 806) — STREETS — OBSTRUCTIONS — AUTOMOBILE DRIVER — DUTY TO USE CARE.

Where plaintiff was driving an automobile along a city street, it was his duty to use reasonable care to discover danger from a rope stretched from the top of a gin pole used in the construction of a building to a telegraph pole on the opposite side of the street and avoid injury by attempting to pass under the rope at a point in the street where there was not a sufficient space to drive his machine under it without coming in contact therewith.

4. MUNICIPAL CORPORATIONS (§ 821) — STREETS — OBSTRUCTIONS — ROPES.

The act of a building contractor in stretching a rope from a gin pole across a street to a telegraph pole on the opposite side in such manner that clearance was not provided for automobiles on all parts of the roadway was not negligent as a matter of law, but the question of negligence vel non was for the jury.

5. MUNICIPAL CORPORATIONS (§ 818) — OBSTRUCTIONS IN STREETS — EVIDENCE — METHOD OF WORK — ORDINARY AND APPROVED MANNER.

Where it was a debatable question whether the act of a contractor in stretching a rope across a street, without providing adequate clearance for automobiles at all points of the roadway, constituted negligence, evidence that the rope was stretched in the usual and customary manner was admissible.

On Motion for Rehearing.

6. MUNICIPAL CORPORATIONS (§§ 805, 806) — STREETS — OBSTRUCTIONS — TRAVELERS — CARE REQUIRED.

A traveler on a city street is bound to use reasonable care to avoid known and expected obstructions and defects, and also to discover those which are unknown, unexpected, and unlawfully there.

7. MUNICIPAL CORPORATIONS (§ 809) — STREETS — OBSTRUCTIONS — NEGLIGENCE — UNLAWFULNESS.

The act of a contractor in stretching a rope across a street in aid of the erection of a building adjacent thereto, regardless of the manner or purpose for which it was done, was not an unlawful act; his liability being only for negligence in stretching the rope so near to the side of the street as to interfere with lawful travel thereon.

8. APPEAL AND ERROR (§ 882) — INSTRUCTIONS — RIGHT TO ALLEGE ERROR.

Plaintiff cannot complain on appeal of instructions based on the same theory and which are the converse of instructions requested by himself.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by F. C. Wallower against the City of Webb City and another. Judgment for defendants, and plaintiff appeals. Affirmed.

H. W. Currey and George V. Farris, both of Webb City, for appellant. Stonewall Pritchett, of Webb City, and R. A. Pearson, of Joplin, for respondents.

STURGIS, J.

This is a suit for damage to plaintiff's automobile, caused by same coming in violent contact with a rope stretched across Second street, in Webb City, Mo., while plaintiff was driving down that street. The defendant Sahlman was assisting in building a church on the south side of that street, and stretched this rope from the top of a gin pole, used in raising heavy material, to a telegraph pole on the opposite side. The rope was so low near the north side of the street that it caught the top of the automobile in passing under it and demolished the same. The petition counts on the negligence of the defendant Sahlman in stretching this rope across the street in such manner as to be dangerous to persons traveling along this street in automobiles or other vehicles, and that the defendant city was negligent in permitting such negligent obstruction of this much-traveled street. The defendants answered separately. The answer of the city consists of a general denial and this clause: "Further answering, defendant states that if plaintiff's automobile was damaged at the time and place alleged in plaintiff's petition such damage was caused by the carelessness and negligence of plaintiff in operating his said automobile." The answer of the defendant Sahlman consists of a general denial and this clause: "And for further answer said defendant says that if plaintiff sustained the damages to his property as in his petition alleged it was because of his own careless and negligent acts and omissions in and about the running of his automobile, and the wrongful, excessive, and dangerous speed with which he was running the same."

It will be noticed that these answers do not, directly at least, charge that plaintiff's negligence contributed to his loss; and it is argued that they charge that such negligence was the sole cause of such loss.

The case was tried, at least so far as the introduction of evidence was concerned, on the theory that these answers set up the defense of contributory negligence, and at no time did plaintiff object to any evidence brought out on the cross-examination of his own witnesses, or to the evidence offered by defendants tending to show contributory negligence on the part of plaintiff, on the ground that no such issue was raised by the pleadings. After the evidence tending to show the negligence of defendants and the contributory negligence of plaintiff was all in, the court submitted the case on instructions, hereinafter mentioned, based on defendants' negligence, on the one hand, and plaintiff's contributory negligence, on the other. The jury found for defendants, and the principal error complained of by plaintiff is the giving of instructions for defendants submitting the question of plaintiff's contributory negligence.

The record merely shows that plaintiff objected and excepted to the court's giving each and all the instructions given for defendants. The specific objection now made is that no issue of contributory negligence is raised by the pleadings, and that the instructions should not broaden the issue. De Donato v. Morrison, 160 Mo. 581, 61 S. W. 641; Pryor v. Railroad, 85 Mo. App. 367; Mitchell v. Railroad, 108 Mo. App. 142, 151, 83 S. W. 289. There is nothing in the record to show that plaintiff raised this specific objection to the instructions in the trial court. Having tried this case on the theory that the issue of contributory negligence was raised by the pleadings, the plaintiff is bound by the position taken by him in the trial court. Dahmer v. Street Railway, 136 Mo. App. 443, 449, 118 S. W. 496.

For the purposes of this appeal, it is sufficient to say that plaintiff's own evidence shows that the street where the accident occurred is downgrade, and that he was traveling at the rate of 10 or 12 miles per hour; that he had previous knowledge that the church was being erected at this place, and that the street was being more or less obstructed by lumber and other material used in the building; that the rope in question was an inch and a quarter to an inch and a half in diameter; that he did not see the rope at all before it caught his machine, although it was a clear bright day, and there was nothing to prevent his doing so. He said he did not know where he was looking at the time of the accident, and gave it as his own opinion that if he had been looking down the street in front of him that he would have probably seen the rope in time to have stopped the machine, which, he says, he could have done in the distance of the car length. Plaintiff also said that he knew of a city ordinance limiting the speed of automobiles to 8 miles per hour. There was evidence of other witnesses, introduced without objection, that plaintiff was traveling as fast as 20 to 25 miles per hour; that at and just before the time of the accident he was looking at the church and work being carried on there; and that if he had turned a little nearer the middle of the street he would have passed under this rope without the accident.

The instructions (Nos. 7 and 8) complained of submit the question of plaintiff's contributory negligence, in that plaintiff was traveling at an excessive rate of speed, and that "the plaintiff was inattentive and not looking in the direction in which he was traveling," and that "he failed to use reasonable care and ordinary diligence in driving his automobile to discover the danger and avoid the injury," and that such negligence on his part contributed to the injury to his car.

It is evident that plaintiff's objection that these instructions are erroneous, in that they relate to an issue not raised by the pleadings, is not well taken, for this reason: Every ground of contributory negligence mentioned in the instructions is based on plaintiff's own evidence. The authorities all hold that, while contributory negligence is an affirmative defense, and as a general rule must be alleged in order to be available, yet, in cases where the plaintiff's own evidence shows or tends to show that he was guilty of contributory negligence which defeats his right of recovery, the defendant may take advantage thereof, although the answer contains no plea of such contributory negligence. Kile v. Light & Power Co., 149 Mo. App. 354, 359, 130 S. W. 89; Hudson v. Railroad, 101 Mo. 13, 30, 14 S. W. 15; Engleking v. Railroad, 187 Mo. 158, 164, 86...