Plaintiff-respondent sued defendant-appellant for personal injuries resulting from a collision which allegedly occurred when and because defendant suddenly and without warning turned his truck to the left and directly across the road in front of рlaintiff’s automobile. By defendant’s pleading -entitled “first amended answer and counterclaim” he in the first paragraph admitted that plaintiff was driving a Mercury sedan on a farm-to-market road about one mile east of Bernie, Missouri, shortly bеfore the collision. In paragraph 2 he denied all other allegations of plaintiff’s petition and prayed to go hence with -his costs. Under the separate title “counterclaim” the defendant, by paragraphs 1 to 4 inclusivе, asserted primkry negligence on the part of plaintiff and concluded with prayer for .damages on account of property loss and personal injuries sustained. The collision occurred on a gravel road which ran strаight and level in an east-west direction, and at or near the entrance to a private driveway which led into defendant’s property on the south side of such road. No ■ intersection is involved. Immediately prior to the collision both defendant’s truck, which was a long bed %-ton Dodge, and plaintiff’s car were headed west.
Appellant’s first assignment is that the court erred in overruling his motion for directed verdict, on the ground that plaintiff did not make a submissible case. Taking the evidence most favorable to the plaintiff, as we must do on such assignment, we find it to be that plaintiff pulled into the roadway some quarter-mile or more east of the collision scene. At that time his car was about two city blocks to the rеar of defendant. Defendant was driving fifteen to twenty miles per hour. Plaintiff was going from thirty to forty miles per hour. When plaintiff had approached within thirty to forty to fifty feet of defendant’s truck he decided to pass, pulled his. car to the left sidе of the road and “kind of hit my horn a couple of short toots.” As he got the front of his car even with or past the rear fender of defendant’s truck it suddenly turned across to the left (toward the private driveway entrance) in front of the plаintiff, without signal or warning of any kind. The plaintiff “hit” his brakes and tried to cut to the left but was unable to avoid the collision, and the right front of his car struck the truck at about the left rear wheel. After the air cleared, defendant’s truck was standing with its front two or three feet north of the approximate center of the driveway entrance and plaintiff’s car was headed at an angle to the north. Damage to plaintiff’s car was to the right front corner. Damages to defendant’s truck concerned the left rear wheel, fender and spring. There was evidence indicating that the force of the impact came from the
The second assignment is directed at the refusal of the court to give instruction 1-D as requested by the defendant. This instruction submitted contributory negligence and the wording of it is almost identical to thаt of instructions which were approved in Christman v. Reichholdt, Mo. App.,
“In his trial petition plaintiff alleged due care on his part and defendant coupled his counterclaim with a general denial, but defendant nowhere specifically pleaded the contributory negligence of the plaintiff. Contributory negligence must be explicitly and specifically pleaded as an affirmative defense. But defendant was entitled to no instruction on the subject. Unless plaintiff’s own evidence shows him guilty of contributory neglig'ence, as a matter of law, the defendant cannot complain. A general denial is not sufficient to raise the issue of plaintiff’s contributory negligence, and defendant is not entitled to an instruction thereon tinless he pleads affirmatively thе contributory negligence of the plaintiff.”
We find nothing in plaintiff’s evidence which damns him with contributory negligence, and since the plaintiff did not show it,, and defendant did not plead it, that issue could not. be submitted.
The third and fourth assignments assert error in the giving of рlaintiff’s instruction number 1, which was his main instruction, and in the giving of instruction number 2, which was in respect to measure of damages. The only complaint is that the evidence did not justify the giving of such instructions. We have hereinabove set forth a portion of thе evidence. In addition thereto plaintiff and his physician testified as to the nature and extent of plaintiff’s injuries. Since appellant does not point out wherein the evidence was insufficient to justify such' instructions, and since we are unable to see any deficiency in that respect,, we deem it unnecessary to discuss these assignments further.
. Appellant’s fifth and final assignment deals with the verdicts and the conclusions, to be drawn therefrom.
When the case' was submitted the jury werе given appropriate forms of verdict..
The action of the trial court in directing the jury to return a verdict on the counterclaim was proper. While it is true that in this instance plaintiff’s and defendant’s claims were bаsed upon facts under which the finding in favor of the plaintiff automatically destroyed the claim of the defendant and might thereby have permitted entry of judgment,
1
still the rule is that the verdict must be responsive to all issues, and this includes those raised by сounterclaim. Lummi Bay Packing Co. v. Kryder, Mo.App.,
The second verdict, being in favor of the defendant on the counterclaim, was inconsistent'with the verdict on the plaintiff’s petition because based upon the same set óf facts. Such verdicts were self-destroying. Commerсial Nat. Bank of Kansas City v. White, Mo.,
“* * * while the incident casts some slight reflection upon the jury system, it nevertheless speaks well forthe credit of the judge that, acting simultaneously with the occurrence as he did, and in the presence of counsel for'both parties, he took prompt steps to ascertain from the jury what was the true verdict, so that the same might be duly received and recorded, and judgment rendered thereon.”
It will be noted that the court, in sending the jury back, referred to both verdicts as being inconsistent and carefully refrained from making any suggestion as to which way the final decision should fall. It will also be noted that the court made inquiry of counsel and that counsel expressed approval of such action.
But appellant argues that the jury must have found that both plaintiff and defendant were negligent and therefore erroneously applied the law. We cannot say whether the inquiring juror, who wanted to know what would happen if both parties were “negligence,” was one of the nine who signed the verdict for plaintiff or was one of the three dissenters; nor can we say that the jury did nоt at first misunderstand (although without good reason therefor) the direction of the court to go out and find a verdict on the counterclaim to mean that they should find such in favor of the defendant. We do
not possess
the insight of the Master Clocksmith which would enable us to peer into the works of the jury’s collective mind and say which wheels were turning when the verdict was struck. Absent showing to the contrary we can only assume that the jury considered the court’s instructions carefully and intelligently and construed thеm reasonably. Prichard v. Dubinsky,
This court has no discretion to grant a new trial except upon reversible error properly assigned and presented and, not finding such in the record, we must and do affirm the judgment.
Notes
. Ragsdale v. Young, Mo.App.,