Wissman v. Wissman

• Citation: 575 S.W.2d 239
• Decision Date: 21 November 1978
• Docket Number: No. 38955,38955
• Parties: Donald WISSMAN, Appellant, v. Virgil C. WISSMAN, Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 239

575 S.W.2d 239

Donald WISSMAN, Appellant, v. Virgil C. WISSMAN, Respondent.

No. 38955.

Missouri Court of Appeals, St. Louis District, Division Two.

Nov. 21, 1978.

James C. Butcher, Butcher, Marshall & Cline, Columbia, for appellant.

Mike A. Dallmeyer, Hendren & Andrae, Jefferson City, for respondent.

REINHARD, Judge.

Plaintiff brought this action for personal injuries sustained as a result of an accident involving a tow truck owned and operated by defendant. The case was tried under the doctrine of res ipsa loquitur, and an instruction on contributory negligence was given. A jury found in favor of defendant and plaintiff appeals.

On August 3, 1974, plaintiff assisted defendant in recovering a disabled automobile. Two tow trucks were utilized in this operation; plaintiff handled the larger truck, and defendant drove the smaller truck with which the automobile was towed to defendant's salvage yard. Plaintiff drove the larger truck into the yard, parked it, got out, and directed defendant to back up the smaller truck, still holding the disabled automobile, to within a couple of feet from the rear of the larger truck. Plaintiff was clearly visible to defendant as the latter backed up his truck. Plaintiff then signalled defendant to stop the truck. Defendant stopped his truck and, according to defendant, set the electric brakes, leaving the motor running at this time. The electric brakes are set by pulling a toggle switch on the dashboard and applying pressure to the brake pedal.

Plaintiff observed the vehicle stop and, consistent with the parties' customary procedure in this type of operation, stepped between the rear of the larger truck and the bumper of the disabled automobile, for the purpose of attaching chains to the automobile in order to raise it and remove the towing dollies. The smaller truck then rolled backward, pinning plaintiff between the towed automobile and the larger truck and resulting in a fracture of plaintiff's left femur.

Plaintiff and defendant had performed this kind of procedure numerous times and were aware of the responsibilities of each in performing it, responsibilities which included defendant's stopping the truck and alighting from it to help plaintiff. Defendant had just descended from his truck when he noticed it rolling back. Upon hearing plaintiff call for him to pull up, defendant got back into the vehicle, moved it forward and set the electric brake, noticing that the toggle switch had remained in the pulled position. There was testimony that the brake lights would remain on if the brakes had been properly locked, but plaintiff testified that he did not look to see whether the brake lights were on. ¹

Plaintiff first contends that there was no evidence justifying the submission of a contributory negligence instruction and that the court erred in submitting Instruction No. 6, defendant's contributory negligence instruction.

It is axiomatic that giving an instruction is error if it is unsupported by the evidence. In determining whether an instruction has the necessary evidentiary support, the evidence is considered in the light most favorable to the defendant, disregarding plaintiff's evidence unless it tends to support the submission. Rickman v. Sauerwein, 470 S.W.2d 487, 489 (Mo.1971).

Every person is required to make ordinary use of his faculties to observe and avoid danger. Murphy v. S.S. Kresge Co., 239 S.W.2d 573, 580 (Mo.App.1951); Schilling v. Bi-State Development Agency, 414 S.W.2d 818, 824 (Mo.App.1967). Although the maxim sounds simple, there is no easy formula to be applied in ascertaining the conduct required of plaintiff. What amounts to ordinary care in a specific situation depends on the particular surrounding circumstances, and therefore as to a determination of negligence, be it primary or contributory, each case must depend on its own facts. Miller v. Sabinske, 322 S.W.2d 941, 946 (Mo.App.1959); Coats v. Sandhofer, 248 S.W.2d 455, 458 (Mo.App.1952).

Furthermore, a determination of contributory negligence is generally a matter for the jury. It is to be taken from them only if reasonable minds could not differ as to the existence or absence of negligence. Miller v. Sabinske, Supra at 946. Considering the facts of this case, we believe that the plaintiff's contributory negligence was a jury question and the giving of a contributory negligence instruction was proper.

Under the circumstances of this case, plaintiff is held to be aware of the danger inherent in placing himself between two heavy pieces of machinery. The standard of ordinary care to which plaintiff is bound by this awareness is a relative standard requiring precautions commensurate with the dangers to be reasonably anticipated under the circumstances. De Mariano v. St. Louis Public Service Company, 340 S.W.2d 735, 743 (Mo.1960); Niemczyk v. Burleson, 538 S.W.2d 737, 741 (Mo.App.1976).

Plaintiff argues that he was merely following the procedure that had been used many times before, that he was where he had a right to be, doing what he had a right to do, and that the law does not require him to anticipate the negligence of others. Although plaintiff is correct in his general proposition that one is not negligent for failing to anticipate danger arising from the negligence of others, this principle is not applicable here to relieve him of his duty to exercise ordinary care for his own safety under the circumstances. The danger of stepping between two heavy pieces of machinery on an incline was present and apparent, and whatever plaintiff's assumption about defendant's conduct, plaintiff was nevertheless bound to exercise ordinary care for his own safety.

Floyd v. Thompson, 356 Mo. 250, 201 S.W.2d 390 (1947), was a wrongful death action based on the alleged failure of defendant railroad to provide adequate effective brakes on railroad cars into which deceased was loading scrap metal. Defendant claimed contributory negligence, and after a verdict for defendant, plaintiff appealed, alleging that the contributory negligence instruction should not have been given because plaintiff's decedent had a right to rely on the hand brakes working. In rejecting plaintiff's contention, the Missouri Supreme Court held that although plaintiff was not bound to anticipate the omission of defendant in failing to equip the cars with efficient brakes, "so far as 'primary negligence is concerned, the obligation to exercise due care remains mutual and reciprocal. One may not disregard the laws of prudence and exact of others a primary obligation to protect him against his lack of caution. If he exercises due care for his own safety, Then, . . . he may rely on the presumption that others will obey the law.' " Id. at 394, citing Dempsey v. Horton, 337 Mo. 397, 84...