Opinion
Opinion filed January 16, 1952.
1. — Gas. In action by pedestrian who had at 7:00 p.m. tripped over gas pipe left by defendant on sidewalk allegedly without lights or flares, and at 9:00 p.m. on return again tripped over pipe which was allegedly obscured in the dark and fell sustaining injuries, question of pedestrian's contributory negligence was for jury.
2. — Trial. Where trial court had already given proper instructions on same subject covered by defendant's requested instructions, refusal thereof was proper.
3. — Appeal and Error. Where ground of motion for new trial did not show how defendant was prejudiced by permitting plaintiff to introduce evidence in rebuttal which was not strictly rebuttal evidence, objection on appeal to rebuttal testimony was too late, and new trial would not be ordered.
Appeal from the Circuit Court of Stoddard County. — Hon. J.V. Billings, Judge.
AFFIRMED.
Robert C. Hyde, J. Lee Purcell, for Appellant.
I. THE COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO DISMISS AT THE CONCLUSION OF PLAINTIFFS' TESTIMONY AND AT THE CLOSE OF THE ENTIRE CASE. (1) Under the plaintiff's own testimony she was guilty of contributory negligence as a matter of law. (a) Plaintiff cannot recover because, knowing of a present danger, she failed to exercise ordinary care for her own safety in using the sidewalk where she fell. O'Neill v. City of St. Louis, et al., 292 Mo. 656, 239 S.W. 94; Waldman v. Skrainka Construction Co., 289 Mo. 622, 233 S.W. 242; Hamra v. Helm, et al., 281 S.W. 103; Muller v. Sensenbrenner Mercantile Company, 260 S.W. 982; Sloan v. American Press, 327 Mo. 470, 37 S.W.2d 884. (b) Plaintiff is guilty of contributory negligence as a matter of law because she observed the pipe over which she later fell, and forgot about its presence on the sidewalk. Wheat v. City of St. Louis, 179 Mo. 572, 78 S.W. 790; Goldman v. City of Columbia, 211 S.W.2d 541, l.c. 543; Am. Jur. Vol. 38, Sec. 187 (Neglig.); 45 Corpus Juris 950, Sec. 509. II. THE COURT ERRED TO DEFENDANT'S PREJUDICE IN GIVING PLAINTIFFS' INSTRUCTION NO. 3 (Tr. 115). (1) This instruction erroneously advises the jury that Myrtle Clark "had the right to assume that she could use the sidewalk . . . with safety," in the face of her own testimony that she knew of the dangerous condition on the sidewalk. Waldman v. Skrainka Construction Co., supra; O'Neill v. City of St. Louis, supra; Rohmann v. City of Richmond Heights, 135 S.W.2d 378. (2) The instruction is also erroneous because it does not hypothecate any facts which would authorize the jury to find Plaintiff not guilty of contributory negligence, but it permitted the jury to speculate as to what facts would be necessary to find Plaintiff was using ordinary care. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 174; Green v. Guynes, 235 SW (2) 298. III. THE COURT ERRED TO DEFENDANT'S PREJUDICE IN GIVING PLAINTIFFS' INSTRUCTION No. 4 (Tr. 116). (1) The instruction erroneously requires Defendant to prove contributory negligence to the "reasonable satisfaction of the jury" and to "so prove and satisfy the jury." Krause v. Spurgeon, 211 Mo. App. 26, 256 S.W. 1072, l.c. 1074; Seago v. New York Central Railway Co., 349 Mo. 1249, 164 S.W.2d 336 l.c. 341; Schultz v. Zeitinger, 238 Mo. App. 833, 188 S.W.2d 956, l.c. 958; Padgett v. Mo. Motor Distributing Corp., 354 Mo. 219, 177 S.W.2d 490, l.c. 493; State v. Barton, 236 S.W.2d 596, l.c. 600. (2) The instruction erroneously told the jury that even though Plaintiff knew of a dangerous condition on the sidewalk she was not required to use any greater degree of care than would have been required had she not known of the condition. Mullen v. Sensenbrenner Mercantile Co., supra; Eisele v. Kansas City, et al., 209 Mo. App. 302, 237 S.W. 873 (3) And the instruction attempts to justify Plaintiffs' conduct without hypothesizing any facts sufficient to excuse her forgetfulness. Yates v. Manchester, supra; Green v. Guynes, supra. IV. THE COURT ERRED IN REFUSING TO GIVE INSTRUCTIONS 2, 6 AND 8 OFFERED BY DEFENDANT (Tr. 126, 127, 128) SUBMITTING THE ISSUE OF CONTRIBUTORY NEGLIGENCE. (1) Each of these instructions hypothesized the forgetfulness of Plaintiff and correctly instructed the Jury that she could not recover if her forgetfulness caused her injury unless she had some legal excuse for such forgetfulness. Wheat v. City of St. Louis, supra; Goldman v. City of Columbia, supra; Am. Jur. Vol. 38, Sec. 187 (Neglig.); 45 Corpus Juris 950, Sec. 509. V. THE COURT ERRED IN PERMITTING THE PLAINTIFF TO BE RECALLED AS A WITNESS AFTER THE CLOSE OF ALL THE EVIDENCE AND TO BE INTERROGATED ABOUT MATTERS NOT IN REBUTTAL. (1) It was error to permit Plaintiff to attempt to bolster her case by additional testimony concerning her contributory negligence about which she alone testified. (a) It was not proper rebuttal evidence. Seibel v. Suessdorf C. I. Mfg. Co., v. Manufacturers Railway Co., 230 Mo. 59, 130 S.W. 288 l.c. 293 (Syl. 2); Glenn v. Stewart, 167 Mo. 584, 67 S.W. 237 l.c. 239 (Syl. 2); Flowers v. Smith, 214 Mo. 98, 112 S.W. 499, l.c. 510 (Syl. 17); Christal v. Craig, 80 Mo. 367 l.c. 375 (Syl. 8). (b) Nor was it proper for the Court to accept this testimony by "reopening the case," because to do so constituted an abuse of his discretion. Christal v. Craig, supra. (c) All of this testimony of Mrs. Clark was further objectionable because it was elicited by leading and suggestive questions propounded by counsel and the Court and she was permitted over objection, to testify to her conclusions concerning the principal issue in the case. (d) The Court emphasized the error stated above by making a statement and asking a question during this testimony which indicated bias in favor of Plaintiff and which was particularly prejudicial in this very close case. Rose v. Kansas City, 125 Mo. App. 231, 102 S.W. 578; Primmer v. American C. F. Co., 299 S.W. 825, 827; Maryland Casualty Company v. Spitcaufsky, 352 Mo. 547, 178 S.W.2d 368.
Cope Ponder, for Respondents.
ASSIGNMENT OF ERROR NO. I. DEFENDANT'S MOTIONS TO DISMISS WERE PROPERLY REFUSED. (1) Under the proof in this case plaintiff, Myrtle Clark, was not guilty of contributory negligence as a matter of law, for either of the reasons assigned. Butler v. City of University City, 167 S.W.2d 442, (Mo. App.); King v. City of De Soto, 89 S.W.2d 579 (Mo. App.); Cordray v. City of Brookfield, 65 S.W.2d 938 (Mo.); Fischer v. City of St. Louis, 88 S.W. 85; 189 Mo. l.c. 578; Wyckoff v. City of Cameron, 9 S.W.2d 872, 875, (Mo. App.); Certiorari Quashed 321 Mo. 221; 9 S.W.2d 876; Brashear v. Mo. Power Light Co., 49 S.W.2d 639 (Mo. App.); Heberling v. City of Warrenburg, 103 S.W. 36, 204 Mo. 604. (a) As to the first assignment of error on this question the rule of law is well expressed in the case of Cordray v. City of Brookfield, supra. The evidence in this case was directed chiefly to plaintiff's contributory negligence in attempting to go over a dangerous crossing-walk, with the conditions of which he was perfectly familiar. The court said: "There is no new question presented here in regard to contributory negligence. Plaintiff was shown to have had knowledge of the defective condition. Whether such a person when injured and suing for damages, will be held to have assumed the risk of using the walk in its known condition or be held for contributory negligence in so doing has been frequently adjudicated. The rule is settled that a pedestrian having such knowledge is generally guilty of contributory negligence as a matter of law in continuing to use the defective sidewalk. Whether he is or is not negligent depends on the circumstances of the particular case and is a question for the jury. The test to be applied is whether a reasonably prudent person would under the particular facts continue in such use, or otherwise expressed, is the danger of doing so so obvious and glaring that a reasonably prudent person would not do so." (b) As to the second assignment of error on this question the rule is well expressed in Butler v. City of University City, supra. "There should be a present awareness of the defect and a realization of its dangerous nature, or the defect should be of such a striking character that no reasonable person who had previously observed it would come into close proximity with it without recalling it to mind. Thus, we could safely say that if a five-foot pit had been at the place in question, instead of an inch and a half hole, we would not hesitate to hold that the condition was so glaringly dangerous that plaintiff, who had seen it many times previously, should be charged with contributory negligence as a matter of law in not making certain that she did not fall into the hole. But, common experience teaches us that not all of our past mental impressions are carried into present consciousness. Whether the failure to recall to mind such matters, so as to act upon such knowledge and to take the extra precaution that the situation demands, can be declared negligent conduct depends upon the nature of the matter observed, and upon whether an ordinarily prudent person would, when observing the defect, fix and retain it in his mind against possible future contact with it and not fail to act upon such knowledge. If reasonable minds might differ on the question, the issue is for the jury. It is only where the facts in evidence exclude any inference but negligence that the court decides the case as a matter of law. Maus v. Springfield, 14 S.W. 630." ASSIGNMENT OF ERROR NO. II. PLAINTIFF'S INSTRUCTION 3. (a) Appellant failed to set out and specify in Motion for New Trial, (Tr. 132), alleged errors in Instruction 3, therefore, nothing was preserved for review on appeal under this assignment of error in Appellant's brief. Sec. 512.160 Mo. R.S. 1949; Meierotto v. Thompson, 291 SW (2) 161 l.c. 165 (Mo.); Hill v. Montgomery, 176 S.W.2d 284 l.c. 288 (Mo.) Norman v. Jefferson City Coca-Cola Bottling Co., 211 SW (2) 652 l.c. 557. (b) This instruction substantially declares the law of this case in such terms as has repeatedly met the approval of the courts of this state. Elliott v. Kansas City, 96 S.W. 1023 l.c. 1029 (Mo.). (c) Object of danger in this case negligently placed on sidewalk by defendant and was easily removable, and was not a hole or defect. No notice was required as against a city. Plaintiff had right to assume object would be removed and not left to endanger persons. Deland v. City of Cameron, 87 S.W. 597, 112 Mo. App. 704. This is a negligence case against defendant for negligently leaving dangerous object on walk, and not case against city. Brashear v. Mo. Power Light Co., supra, 49 S.W.2d 639. (d) Plaintiff had right to assume she could travel the walk in safety so long as she used such care as an ordinarily prudent person would exercise under like or similar circumstances. In case of Cordray v. City of Brookfield, supra, it was said: "His knowledge of the defect was entitled to consideration as bearing upon the issue of his negligence, but it was not decisive of that issue." (e) Defendant's answer in this case, (Tr. 7) merely a general denial and question of plaintiff's negligence not a proper issue for jury, and was improperly injected in the case by defendant's improper pleading and instructions. (Taken up fully in next assignment of error). (f) This instruction not subject to criticism assigned when read and construed with all other instructions, as must be done. Schneider v. Dubinsky Realty Co., 127 S.W.2d 681, 344 Mo. 654. (g) Appellant made no request for the clarification or modification of this instruction, nor did it offer an instruction defining "ordinary care," and not having done so at the time cannot now complain. Johnson v. Chicago E.I. Ry. Co., 64 S.W.2d 674, 334 Mo. 22; Wolf v. Kansas City, 68 S.W.2d 821, 334 Mo. 796; Cooper v. Atchison, T. S.F.R. Co., 148 S.W.2d 773, 347 Mo. 555. ASSIGNMENT OF ERROR NO. III. PLAINTIFFS' INSTRUCTION NO. 4. (a) Nothing has been preserved for review in the Motion for New Trial on this assignment of error. Sec. 512.160 R.S. Mo. 1949; Meierotto v. Thompson, supra, 291 SW (2) l.c. 165; Hill v. Montgomery, supra, 176 SW l.c. 288; Norman v. Jefferson City Coca-Cola Bottling Co., 211 S.W.2d 562 l.c. 557. (b) This instruction approved in: Williams v. City of Hannibal, 68 S.W. 380, 94 Mo. App. 549; Pohlman v. Town of Wayland, 226 S.W. 92 (Mo. App.). (c) Any error in this instruction was invited by defendant's illegal injection into the case the issue of contributory negligence for the jury, which is an affirmative defense, and the answer must specify and set out the substantive facts necessary to constitute the defense in ordinary and concise language. The answer in this case merely a general denial, and reference to contributory negligence therein merely states a legal conclusion and tenders no issue of fact, (Tr. 7). Keppler v. Wells, 238 S.W. 425 l.c. 429 (Mo.); Lumb v. Forney, 190 S.W. 988 (Mo. App.); Secs. 509.080- 509.090 Mo. R.S. 1949; Hudson v. Railway, 14 S.W. 15, 101 Mo. l.c. 28; Hughes v. Railway, 30 S.W. 127, 127 Mo. l.c. 453. And a party cannot complain of an error in an instruction invited by him. Schneider v. Dubinsky Realty Co., supra; Herman v. Owens, 42 Mo. App. 387; Haddaway Curd Goal Co. v. Breese-Trenton Mining Co., 200 S.W. 104 (Mo. App.). (d) Appellant's criticism of the wording of this instruction "to the reasonable satisfaction of the jury" not supported by any decision where case has been reversed on this point. (e) If Appellant was not satisfied with plaintiff's burden of proof instruction on contributory negligence, it should have requested an instruction in conformity with its views on the subject, or for a modification or clarification of same, and not having done so at the time cannot now complain. Johnson v. Chicago E.I. Ry. Co. supra, 64 S.W.2d 674; Wolf v. Kansas City, 68 S.W.2d 821 supra; Cooper v. A.T. S.F.R. Co., 148 S.W.2d 773, supra. ASSIGNMENT OF ERROR NO. IV. DEFENDANT'S REFUSED INSTRUCTIONS NOS. 2, 6 and 8. (a) Nothing has been preserved for review on this assignment in the Motion for New Trial, therefore, Appellant cannot avail itself of same. Sec. 512.160 R.S. Mo. 1949; Meierotto v. Thompson, supra; Hill v. Montgomery, supra; Norman v. Jefferson City Coca-Cola Bottling Co. supra. (b) Contributory negligence not a proper issue for the jury in this case, defendant's answer being a general denial and tenders no issue of fact on question of plaintiff's negligence. Keppler v. Well, supra; Lumb v. Forney, supra; Secs. 509.080- 509.090 R.S. Mo. 1949. (c) Defendant's instructions Nos. 2, 6, and 8 did not properly declare the law of the case. (Cases cited by Respondents under Assignment of Error I). And were argumentative and failed to properly hypothecate the facts under the evidence. Cannon v. S.S. Kresge Co., 116 S.W.2d 559, 233 Mo. App. 173; Henry v. First Nat. Bank, 115 S.W.2d 121, 232 Mo. App. 1071. ASSIGNMENT OF ERROR NO. V. PERMITTING PLAINTIFF TO BE RECALLED AT CLOSE OF CASE. (a) It is within the sound discretion of the trial court to allow evidence in rebuttal which might have been offered in chief, and also the introduction of testimony after the case has been closed. This rule is so well established it needs no citations. State Highway Commission v. Cook, 161 SW (2) 691 (Mo. App.); Cento v. Security Bldg. Co., 99 S.W.2d 1 (Mo.); Jones v. Chicago B. Q.R. Co., 125 S.W.2d 5 l.c. 18 (Mo.). (b) Objection to evidence, not designating evidence charged to have been erroneously admitted in Motion for New Trial, cannot be considered on appeal. Jermain v. City of Milan, 277 S.W. 67, 220 Mo. App. 760; Sec. 512.160 R.S. Mo. 1949.
Mrs. Myrtle Clark and her husband, C.B. Clark, were plaintiffs and appellant was defendant in the trial court, and they will be so referred to herein.
The petition was filed in Butler County, Missouri. The caption does not show where the answer was filed. The case went to Stoddard County on change of venue, and was there tried before a jury on January 15, 1951.
Plaintiffs resided in the city of Poplar Bluff, and defendant was a business corporation and maintained an office in that city. On or about March 30, 1950, defendant was engaged in extending its gas mains in that city, in furtherance of its business there, and was alleged to have left over night a section of gas pipe across the sidewalk leading to the home of plaintiffs. Plaintiff Myrtle Clark tripped over such gas pipe and fell, and claimed to have been seriously injured. Suit therefor was filed by her against defendant, Plaintiff C.B. Clark joined as a plaintiff, for loss of the services of his wife, his co-plaintiff. The jury trial resulted in a finding for plaintiff Myrtle Clark in the sum of $5000.00, and in a finding for plaintiff C.B. Clark, in the sum of $2000.00. Motions for new trial in both cases, and to set aside the verdicts, were overruled, and defendant has appealed. Defendant's negligence is conceded by defendant.
In its brief, defendant makes the following statement:
"Since it is conceded that Plaintiff made a submissible case on the question of Defendant's negligence this testimony will not be further detailed."
The evidence of plaintiffs tended to show that defendant left the gas pipe upon the sidewalk, without lights or flares, to show the presence of such gas pipe over the sidewalk.
Defendant had been engaged in extending its gas pipes to a section of Poplar Bluff, which had not previously enjoyed gas service. It had dug long and possibly deep ditches or tunnels in which its gas pipes would eventually be laid. Defendant did not claim that it left flares or other lights upon the sidewalk itself. A careful study of defendant's evidence reveals the fact that the nearest flare, testified to by any witness for defendant, placed such flare about three feet from the sidewalk and that the other flares, claimed by defendant to have been left there, were probably put there to protect people from getting into the ditch or tunnel. On the other hand, plaintiffs' witnesses testified that there were no lights or flares whatever left at the scene of the accident.
At the particular place, where the testimony of plaintiff Myrtle Clark tends to show that she was hurt, the tunnel or ditch was planned to go under the sidewalk. Dirt therefrom had been thrown into the adjoining yard. There was a pole of some sort near the scene of the accident, and on that pole was an electric light of some voltage, probably not over 100 watts. The evidence does not show the presence of any reflector or shade above such light, which would throw light upon the sidewalk. The trees were not in leaf on March 30, 1950. The testimony tended to show that such leaves were budding out at about that time; but were not fully opened.
At about 7:00 o'clock P.M. plaintiff Myrtle Clark passed over the sidewalk at that point in going to her sister's home nearby. She then tripped over the gas pipe and knew defendant had left it there and that it had been in that condition since about 5:00 o'clock P.M. of that day. About 9:00 o'clock P.M., as she returned from the home of her sister, she tripped or stumbled over the gas pipe again and fell, and then sustained serious injuries. She was unable to perform her household duties and her husband, plaintiff C.B. Clark, was compelled to do many things about the home which plaintiff Myrtle Clark usually performed. Plaintiff C.B. Clark testified that he had been damaged by the injury to plaintiff Myrtle Clark, in this way.
In the petition plaintiff Myrtle Clark claimed damages in the sum of $10,000.00 and plaintiff C.B. Clark claimed damages in the sum of $5000.00. As no contention appears to have been made, in defendant's brief, that the verdicts of $5000.00 damages to plaintiff Myrtle Clark and $2000.00 damages to plaintiff C.B. Clark, which the jury returned, are excessive, no futher attention in this opinion will be paid to the amounts of those verdicts.
The main contention of defendant is that plaintiff Myrtle Clark was guilty of contributory negligence in tripping or stumbling over the gas pipe on the sidewalk, when she knew, or should have known, that such gas pipe was on the sidewalk. Contention is also made of the impropriety of some of the instructions given for plaintiff Myrtle Clark, and the refusal of certain instructions offered by defendant. Defendant also claims error in the admissibility, for plaintiff Myrtle Clark, of certain testimony in rebuttal. Of these, in their proper order.
The most serious question in this case is whether or not plaintiff Myrtle Clark was guilty of negligence contributing to her injury. There can be no question but that the jury in this law case had the right to believe plaintiffs' witnesses and to disbelieve defendant's witnesses. There was most substantial evidence of defendant's negligence. The evidence showing such negligence was admitted. Did Myrtle Clark have sufficient knowledge of the misfeasance of defendant, or its employes, to debar her and her co-plaintiff from recovery of damages? Defendant's main contention is that the trial court erred in not sustaining its motion to dismiss the case, at the end of plaintiffs' testimony and at the conclusion of all the testimony in the case.
The first case cited by defendant is O'Neill v. City of St. Louis, et al. 292 Mo. 656, 239 S.W. 94. The opinion in that case was written by Judge Graves, in Division One of the Missouri Supreme Court. The alleged defect in the sidewalk was not only known by plaintiff, but had existed for many years and plaintiff had warned her son against stepping in the water service box. She was evidently fully aware of the danger of stepping into the hole in the sidewalk. The element of thoughtlessness was not important in that case as in the case at bar. In that case, it was evidently broad daylight, as plaintiff was going to church. In this case, it was dark and, according to plaintiffs' testimony, no flares existed to remind her of the danger. While the leaves of the trees were only budding, the limbs of the trees themselves obscured the danger to some extent. The danger in this case was only temporary, and all the knowledge shown to have been possessed by Myrtle Clark was her tripping or stumbling over the pipe earlier the same evening.
While the knowledge of the danger in the O'Neill case extended over a long period of time, the danger in this case was recent, easily forgotten and removable at any time. In the O'Neill case, Judge James T. Blair, of that Division of the Supreme Court, was marked as not sitting. Whether or not he concurred in the opinion is not shown. Under the facts in that case, the plaintiff therein was held to be guilty of contributory negligence; but we think the facts in this case are much stronger against defendant and largely distinguish that case from the case at bar.
Defendant next cites Waldmann v. Skrainka Construction Co. 289 Mo. 622, 233 S.W. 242. Plaintiff in that case was injured after dark; but defendant had placed a red light in the center of the excavation. Plaintiff knew all about the excavation and was injured in stepping out of it. She knew the excavation was there, because she had gone over it in going to the show that night. It was not the excavation which caused the injury; but plaintiff therein failed to step high enough to get out of the excavation. The work was not shown to have been negligently done. Plaintiff's claim in that case that she could not see to get out of the excavation was held to be contrary to the physical facts. We think the facts in that case are quite different and much stronger for the construction company, than are the facts in the case at bar for defendant.
Hamra v. Helm, et al. 281 S.W. 103, was by this Court. It was a suit originally against the City of Caruthersville, which city was excavating the surface of a street when plaintiff, in that case, on April 19, 1924, drove his automobile into a manhole in the street. The excavation in that street had been there since the month of October preceding. There was no light or barrier to prevent the plaintiff in that case from entering the street; but he admitted that he knew the street had been under repair. Judge Bailey there said:
"To our minds but one conclusion can be drawn from the testimony, which is that plaintiff failed to look and failed to exercise ordinary care such as a reasonably prudent person would exercise under like or similar circumstances."
Defendant cites two other cases supposed to have a bearing on its claim of contributory negligence on the part of plaintiff Myrtle Clark; but those cases can be as readily distinguished from the facts in this case at bar, as the cases cited and quoted from by us.
Respondents have cited the case of Cordray v. City of Brookfield, decided by Frank, Presiding Judge, of Division One of the Missouri Supreme Court, on December 6, 1923, and reported in 65 S.W.2d at page 938, which covers the situation of plaintiff Myrtle Clark very well indeed. The facts in that case were quite different from the facts in this case; but the principles of the law are the same. In that case, Judge Frank said:
"There is no new question presented here in regard to contributory negligence. Plaintiff was shown to have had that knowledge of the defective condition of this sidewalk which came to a user of the same by frequently passing over it. Whether such a person, when injured and suing for damages, will be held to have assumed the risk of using the walk in its known condition or be held for contributory negligence in so doing has been frequently adjudicated. The rule is settled that a pedestrian having such knowledge is not generally guilty of contributory negligence as a matter of law in continuing to use the defective sidewalk or street. Whether he is or is not negligent depends on the circumstances of the particular case and is a question for the jury. The test to be applied is whether a reasonably prudent person would under the particular facts continue in such use, or otherwise expressed, is the danger of doing so so obvious and glaring that a reasonably prudent person would not do so?"
It seems to us that to hold plaintiff Myrtle Clark guilty of contributory negligence would be a clear invasion of the rights of the jury. Of course she knew, according to her own testimony, that defendant's employees had gone off about 5:00 o'clock P.M. and left a piece of gas pipe across the sidewalk. It was there at 7:00 o'clock P.M. and she must have had knowledge of its presence there at 7:00 P.M. One of defendant's witnesses testified that he moved the gas pipe off the sidewalk the next morning, and the jury had the right to think that plaintiff Myrtle Clark could well assume that the sidewalk would have been free of its obstruction by 9:00 o'clock P.M., if she thought about the gas pipe at all. The only light or flare defendant claimed was at least three feet away from the sidewalk, and that would not show the gas pipe clearly. The light on the pole was not very great at best and there was no evidence that it specially showed on the sidewalk over which the gas pipe had been left at 5:00 o'clock P.M. While the leaves on the adjacent trees were not out, the buds were opening, and all of those things together with plaintiff Myrtle Clark's probable forgetfulness, may have contributed to the failure of plaintiff Myrtle Clark to recall the dangerous presence of the gas pipe before she fell over it. She was doubtless thinking of something else at the time.
We cannot think or hold that her conduct, together with the conditions surrounding the gas pipe over the sidewalk, was such as, in using it, to make her guilty of negligence contributing to her injury. At the very least, her alleged contributory negligence was a question for the jury to decide, and not for the trial court or this Court.
Defendant's Points II, III and IV in its brief, may be considered together. Paragraph I of Section 512.160, R.S. Mo. 1949, which is a copy of Section 140, R.S. Mo. 1943, page 397, (being a part of the New Code of Civil Procedure) outlawed the sort of procedure in an Appellate Court, which defendant attempted to follow in this case. Possibly some lawyer, who wanted an Appellate Court to consider the instructions given and refused by the trial court on appeal, whether or not the attention of the trial court was called to all of the alleged errors, which appellant, on appeal, claims in his brief, induced the Missouri Legislature in 1947 to provide, in Section 122, page 228, of the 1947 Session, that the trial court's attention must be called to claimed errors "except it shall not be necessary to state grounds for objections for instructions."
This amendment in 1947 probably makes it necessary for us to consider defendant's present objections, even though such alleged errors were discovered or thought of by defendant, possibly months after the trial court completed the case and had passed long before, on defendant's motion for a new trial, which defendant then did not even think of.
Defendant now urges error of the trial court in giving instructions 3 and 4 for plaintiff and in refusing to give defendant's offered instructions 2, 6 and 8, and specifies claimed errors therein. Grounds 16, 17 and 18, of defendant's motion for new trial in the trial court, probably called the attention of the trial court generally to the alleged errors in the giving and refusal of such instructions.
We have carefully considered those objections and find that plaintiff's given instructions either properly stated the law or the trial court's refusal of instructions offered by defendant was proper, because the trial court had already given proper instructions to the jury on the same subject.
We certainly would not now order a new trial, based on defendant's charge of error of the trial court in permitting plaintiffs to introduce rebuttal evidence, even though such evidence was not strictly rebuttal evidence.
Ground 21, of the motion for new trial is the only ground of that motion, we can find, which attempts to cover rebuttal evidence at all. That ground does not even hint how defendant could possibly have been prejudiced by such rebuttal testimony. It is now too late to urge slight objections to such rebuttal testimony. The judgment is affirmed.
It is so ordered.
Vandeventer, P.J., and McDowell, J., concur.