Brickell v. Williams
167 S.W. 607
Mo. Ct. App.
1914
Check Treatment
ROBERTSON, P. J.

On the verdict of a jury in his behalf the plaintiff obtained a judgment for eighty-five dollars against the defendants for an injury to his horse necessitating it being killed, and the defendants have appealed. The printed record filed here contains 128 pages.

The accident occurred in the city of Poplar Bluff on Sunday afternoon, August 10, 1913, near the intersection of Main and Fairmount streets. At this point Fairmount street runs north and south and Main street northwest and southeast. In the center of Fair-mount street a sewer ditch had been constructed, on the west side of which ditch the dirt had been piled up four or five feet high, extending to within about one hundred feet of Main street. The defendants’ home was on the east side of Fairmount street about four hundred feet from the intersection of said streets. On the day of the accident the defendants with others entered their automobile, in front of their home, with the top up and the back curtain down, and in backing their automobile along the east side of Fairmount street to Main street they ran against the plaintiff’s horse being driven to an ice cream wagon by a boy four*575teen or fifteen years of age by the name of Ben Sparks. The driver of the automobile was on its right hand side. There was considerable testimony tending to prove that the boy did not enter the street as required by the ordinance hereafter referred to.

Taking the testimony of the boy most favorable to the plaintiff as true, which it is our duty to do where a verdict has been rendered in his behalf and the defendant has appealed, it discloses that the boy was driving north towards the automobile on the right hand side of Fairmount street and that he did not discover the machine (which defendants testify was going at about two miles per hour) until he was within ten feet of it, that he then called to the occupants but that they failed to slacken their speed until after they had struck the animal. The driver of the automobile testified that he did not see the animal until instantly before he struck it. The ice cream wagon had a- top on it extending six or eight feet above the ground.

The defendants, over plaintiff’s objection, offered in evidence an ordinance of the city of Poplar Bluff providing that vehicles driven upon its public streets should enter cross streets at the right of the intersection of the center lines, and the defendants requested an instruction that if the jury believed from the evidence that the driver of the plaintiff’s animal was driving in violation of the ordinance the plaintiff could not recover. But the court of its own motion gave an instruction that if the driver of the animal did not enter Fairmount street as required by the said ordinance and that his failure in that regard was the direct or contributing cause of the injury, then their verdict must be for the defendants. The instruction given by the court properly defined the law and was more favorable to the defendants and more clearly submitted the issues than the one they requested; con- *576■ sequently, the court committed no error in refusing the instruction upon that ground.

The defendants also complain of the refusal of ■.the court to give said instruction in their behalf because it told the jury, in addition to what has been mentioned, that if they found and believed from the -evidence that the driver of the animal did not have .hold or control of the lines by which he could nave ■controlled the said animal, or allowed it to get in front of and within about three feet of the automobile, while said driver was careless and looking in some ■other direction and was not trying 'to control the animal, that said acts constituted contributory negligence and that their verdict must be for the defendants. The defendants were not harmed by the refusal of this ■instruction because others given covered the subject ,of contributory negligence.

It may be said, however, in answer to all of the -objections urged by the defendants here as to the instructions, except those on contributory negligence, that there is no issue tendered in the defendants’ answer except that of contributory negligence. The answer of the defendants denies “each and every material allegation in plaintiff’s petition alleged as fully :as if they were herein set out at length, except such .as are hereinafter specifically admitted.” The plaintiff objected to the introduction of any testimony on "behalf of the defendant for the reason that no issue -was raised thereby. It has been held by the Supreme -Court that this character of an answer is not sufficient -to raise any issue except as to matters subsequently ■specifically alleged. [Dezell v. Fidelity & Casualty -Co., 176 Mo. 253, 279, 75 S. W. 1102.] The answer .•after the part above quoted alleges the negligent manner in which it is claimed the driver of plaintiff’s animal was proceeding across Fairmount street and then ■only alleges that at the time of the accident it was ■.driven in violation of the ordinance, without alleging *577in what respect he was'violating it. This is nothing more than a conclusion of the pleader and the plaintiff objected to the introduction of the ordinance when it was offered on the ground that it was not in issue in the case. The defendants are in no position to complain of the refusal of any instruction submitting a defense not raised by their answer. The issue of contributory negligence, sought to be raised by the answer, was properly submitted and decided adversely to the defendants and, as it was a question for the jury, we cannot disturb the verdict.

Under the pleadings and the facts most favorable to the plaintiff, the judgment of the circuit court must be affirmed.

Farrington and Sturgis, JJ., concur.