Mrs. Jеanette Kinder (hereafter “plaintiff”) was the guest-passenger in defendant Jeannine Pursley’s car when it ran off the unguarded end of a roadway being constructed by defendant Boyd Contracting Company. Plaintiff and her husband sued both Pursley and Boyd.
The jury returned a verdict in favor of host-driver Pursley but gave plaintiffs verdicts for $15,000 and $3,000 respectively against Boyd. The trial court granted Boyd’s motion for a new trial on the ground it had erred by failing to define the words “adequate warning” used in plaintiffs’ verdict-directing instructions. Plaintiffs appeal from the judgment in favor of defendant Pursley and also from the order giving defendant Boyd a new trial.
On plaintiffs’ appeal from the judgment against them in favor of defendant Pursley, they brief only one abstract point: that defendant Pursley was negligent as a matter of law, without pointing to any error allеgedly committed by the trial court. We can only interpret this as a contention the trial court should have directed a verdict for plaintiffs against defendant Pursley. The short answer to this is that plaintiffs did not аsk for that relief below and cannot now convict the trial court of error in failing to take action plaintiffs did not request. Stanziale v. Musick, Mo.,
Although the trial court granted Boyd’s after-trial motion for а new trial, Boyd is entitled now to raise the more basic issue — alternatively raised in its after-trial motion — that plaintiffs did not make a submissible case. Schmittzehe v. City of Cape Girardeau, Mo.,
The accident occurred on a newly-paved service road running along the south side of east-west Highway 44 near Sullivan in Franklin County. As concerns this case, the service road began with its westerly end at north-south Park Street, ran thence east for half a mile across Church Road and continued on east three-tenths of a mile to its uncompleted end. At that point the paving ended with a 25-foot declivity.
It was dark аnd raining on October 23, 1970 about 7:30 P.M. when defendant Pur-sley, the host-driver, drove north out of Sullivan on Park Street. When she reached the service road she turned right, drove east for half a mile, crossed Church Roаd and continued on for three-tenths of a mile. At that point her car fell off the end of the road into the declivity, seriously injuring plaintiff Jeanette Kinder. Neither the western end of the service road at Park Street nor the eastern end at the declivity were marked in any way.
Defendant Boyd at times put a heavy barricade and a “Road Closed” sign across the service road at the eastеrn side of Church Road. On the night in question neither the intersection nor the barricade were lighted and plaintiff and Mrs. Pur-sley drove across Church Road without seeing the barricade. Plaintiffs’ witness Brand, a policе officer, called to the scene soon after the accident, said the barricade was not across the service road but was over on the south side generally parallel with the pavement. Brand said he had no trouble seeing the barricade because “I knowed it was there.” A few minutes after the collision defendant Pursley’s witness Weiskoph rode to the scene of the aсcident in the wrecker that towed the Pursley car. At that time the barricade was not across the service road and he did not notice it over on the shoulder.
Defendant Boyd’s employees Alstat and Boyd testified for Boyd that the barricade had been removed during the day but was across the service road when they left work between 4:00 and 5:00 P.M.
In testing the submissibility of plaintiffs’ case our review is based on thе theory upon which plaintiffs grounded their recovery and we consider the evidence in the light most favorable to plaintiffs, disregarding defendant’s evidence ex
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cept where it aids plaintiffs’ case. Kirks v. Waller, Mo.,
Plaintiffs’ submission against defendant Boyd was on the theory Boyd had negligently failed to give adequate warning of the dangerous condition ahead. As a road contractor working on a public road Boyd was duty-bound to exercise reasоnable care for the safety of persons using the service road. Joshmer v. Fred Weber Contractors, Inc., Mo.App.,
Viewing the evidence favorable to рlaintiffs the jury could have believed Boyd had failed to place a barricade across the service road at Church Road on the evening in question. The jury was not bound to believe Boyd’s two еmployees’ testimony that the barricade was replaced across the road when they left work two or three hours earlier. Boyd stresses the testimony of plaintiffs’ witness Brand that he saw the barricade beside the road. That does not destroy plaintiffs’ case. The jury may well have concluded that the barricade so placed on a dark, rainy night was not an adequate warning.
Defendаnt Boyd stresses two Missouri cases on the issue of submissibility. Clinkenbeard v. City of St. Joseph,
Defendant also cites DePung v. City of St. Louis, Mo.App.,
Boyd cites cases holding a road contractor not liable for casualties arising from the removal of warning devices by third persons until the contrаctor has notice thereof. Here there was no evidence of such removal. Instead, if the jury chose to disbelieve the testimony of Boyd’s two employees, as it had a right to do, the jury may wеll have believed Boyd removed the barricade during working hours and failed to replace it across the service road at the end of the day.
In one point relied on defendant Boyd cоntends plaintiff was a trespasser to whom Boyd owed no duty but to refrain from wilfully injuring her. That point was not made in Boyd’s motion for a new trial, nor is it developed in the argument portion of Boyd’s brief. Hence, it is nоt preserved for review. Rules 79.03 and 84.-04(e), V.A.M.R.; Kratzer v. King, Mo.,
To summarize the issue of submissibility, we hold evidence favorable to plaintiffs showed a dangerous condition at the end of the service road; that Bоyd breached its duty to give plaintiffs adequate warning thereof and in so failing was negligent and plaintiff’s injury was caused thereby. The jury’s verdict for plaintiffs was responsive to that submission. The trial court propеrly denied Boyd’s motion for a directed verdict. For earlier cases supporting our conclusion that plaintiffs made a submissible case see Meyers v. City of Kansas City,
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As said, the trial court granted Boyd’s motion for a new trial on the ground it had erred in giving plaintiffs’ not-in-MAI verdict-directing instructions. The court gave Instruction No. 3: “Your verdict must be for plaintiff Jeanette Kinder and against defendant Boyd if you believe: First, defеndant Boyd failed to provide adequate warning, and Second, defendant Boyd was thereby negligent, and Third, such negligence either directly caused damage to plaintiff Jeanette Kinder or cоmbined with the acts of defendant Pursley to directly cause damage to plaintiff Jeanette Kinder . . . ” By Instruction No. 4 the court gave the same verdict director for the plaintiff-husband, except for change of name.
Boyd contends the trial court properly ruled these instructions were erroneous for three reasons: First, the “instructions are not in MAI and are therefore presumed to be рrejudiciously erroneous.” Boyd cites no authority for this proposition. There is none. These not-in-MAI verdict directors were in accord with Rule 70.01(e), being simple, brief, impartial, free from argument and оmitting detailed evidentiary facts; nor did they hypothesize undisputed facts.
Second, the instructions were not supported by the evidence. Boyd’s brief is devoid of any argument to support this challenge аnd we find none.
Third, and this is Boyd’s principal complaint, that the instructions gave the jury a roving commission by failing to define the term “adequate warning.” At page L of MAI trial courts are told that terms such as scope of employment, right-of-way, libel, fair market value and legal malice should be defined. Those are terms of art that an ordinary juror probably would not understand and MAI has supplied definitions. Conversely, MAI leaves undefined such terms as “excessive speed” (MAI 17.03), “careful lookout” (MAI 17.05), “following too closely” (MAI 17.09), “adequate and timely warning” (MAI’s 17.11 and 17.12), “position of immediate danger” (MAI 17.-14) and other readily understandable phrases. It has been held proper to refuse to define such a simple word as “unoccupied.” Graves v. M.F.A. Mutual Insurance Co., Mo.App.,
Boyd’s plea for a definition of “adequate warning” is akin to the defendant’s contention in State v. Taylor, Mo.Sup.,
Instructions No. 3 and 4 were not erroneous and the trial court erred in granting defendant Boyd a new trial.
The order granting defendant Boyd a new trial is reversed and the cause is remanded with instructions to re-enter plaintiffs’ judgment against defendant Boyd.