Plaintiff was entitled to this evidence even though he had based his case on general negligence and the rejected evidence tended to prove specific negligence. Fairley v. St. Louis Public Service Company, Mo.App., 389 S.W.2d 378, l.c. 382 (6, 7); Hill v. Montgomery, 352 Mo. 147, 176 S.W.2d 284, l.c. 287(2); Williams v. St. Louis Public Service Company, 363 Mo. 625, 253 S.W.2d 97, l.c. 101, 102(7). In its brief, the defendant stated, "The trial court did not err in refusing to allow plaintiff to read to the jury from witness Cary's deposition because: (A) Plaintiff offered the Cary deposition for the sole purpose of attempting to contest defendant's claim that the inspection reports made by witness Cary and others were privileged, and now for the first time asserts that the deposition should have been received to prove specific negligence, an issue never raised at trial by pleading or otherwise."
The ultimate test for the correctness of an instruction is whether it follows the substantive law and whether it will be correctly understood by a jury composed of average lay people. Arthur v. Royse, 574 S.W.2d 22 (Mo.App. 1978); Fairley v. St. Louis Public Service Company, 389 S.W.2d 378 (Mo.App. 1965); Koirtyohann v. Washington Plumbing and Heating Company, supra. The words "had he done so" clearly refers to something he did not do, that is, keep a careful lookout.
The test for determining the correctness of an instruction rests in whether the average juror will correctly understand therefrom the applicable rules of law. Spritz v. St. Louis Public Service Company, 341 S.W.2d 790 (Mo. 1961); Fairley v. St. Louis Public Service Company, 389 S.W.2d 378 (Mo.App. 1965); Koirtyohann v. Washington Plumbing Heating Co., 494 S.W.2d 665 (Mo.App. 1973). An instruction is to be considered as a whole and an independent phrase or clause should not be considered apart from its context.
The test to be applied is "... whether the average juror will correctly understand therefrom the applicable rules of law." Fairley v. St. Louis Public Service Company, 389 S.W.2d 378 (Mo.App. 1965). We also must view all of the instructions including plaintiff's verdict-director in determining whether the jury was properly instructed.
Defendants' reply brief filed on this appeal does not deny that plaintiff's evidence was substantially the same at the second trial. This and the above statements do constitute admissions by defendants. Fairly v. St. Louis Public Service Co., Mo.App., 389 S.W.2d 378. However, defendants urge that: " Defendants' evidence was not the same in the extremely important respect that in the previous trial there was no evidence of Ackerman's Principle of Automotive Steering and therefore no mathematical evidence of the physical impossibility of plaintiff's version of the manner in which this accident happened."
Having proceeded to offer evidence after that motion was overruled, defendants waived their right to complain of the trial court's action in that regard. Woods v. Dalton, Mo.App., 331 S.W.2d 132; Fairley v. St. Louis Public Service Co., Mo.App., 389 S.W.2d 378; Civil Rule 72.02, V.A. M.R.; and see cases collected at 27 Mo. Digest, Trial, 420, p. 1073. Other allegations of error attempt to raise the issue of submissibility.