Summary
In Doyle v. St. Louis Merchants' Bridge Terminal Railroad Co., 326 Mo. 425, 31 S.W.2d 1010, the plaintiff tripped over a wire in the railroad yards. It was shown that the wire had been firmly embedded in the ground; that the ground had been worn solid at this point by use, justifying only one inference, that the wire had been there a long time.
Summary of this case from State ex Rel. Trading Post Co. v. ShainOpinion
October 13, 1930.
1. NEGLIGENCE: Lamp Lighter: Wire in Path: Notice. Plaintiff's duty was to light lamps upon the main track in a terminal switch yard. In doing so, he walked north along a smooth and hard space used by switchmen as a pathway, eight or nine feet wide, between the main track and a drill track on the east, which sloped west from the drill track to the main track about a foot lower. As he proceeded north, he observed, five or six feet ahead, a loop of wire, fourteen inches long and three inches out of the ground, its ends embedded in the ground; the ground was solid and had been tramped upon, and both ends of the wire were tight in the ground, and the wire was old and rusty. Good railroading required the removal of the wire, and plaintiff's intention was to remove it, but when he came within three feet of it a train on the drill track, moving northward, whistled sharply, causing him to look around to observe the direction of the train and to step to the west to avoid being struck by it, and as he stepped his foot caught in the loop of wire and he fell under a drag train moving northward on the main track, which cut off his foot. Held, (a) that he was within the scope and course of his duties, both in going towards a lamp to be lighted and in commencing and intending to pick up the wire; (b) the fact that the wire was rusty and old and securely embedded in ground that had become solid and smooth was evidence that the wire had been in the pathway for a sufficient length of time to permit an inference that defendant had at least constructive notice or knowledge of its existence, and that it was a dangerous obstruction, and ample time to have discovered and removed it before plaintiff's injuries occurred.
2. ____: Evidence: Conclusion: No Objection. Even if the testimony of the witness that the ground around the ends of the wire embedded in the pathway between the railroad tracks "was trampled upon, showing the wire had been there at least several days" were a conclusion, and not a statement of conditions, it was not without probative value on the question of constructive notice if admitted without objection.
3. ____: ____: Contrary to Physical Facts. It cannot be held, as a matter of law, that the testimony of plaintiff that, as he stepped to the west to avoid a train on the east track, he caught his right foot under a loop of wire, its ends embedded in the hard pathway between the tracks, and was thereby caused so to fall that his left foot was mangled by the wheels of a car moving on the track west of the path, was so out of harmony with the physical facts as to deprive the statement of weight or credence. It cannot be held as a matter of law that, by the immutable law of physics, in catching his right foot under the wire, his head, instead of his left foot, would have fallen to the west towards the train. Courts know from common knowledge that inexplicable happenings do occur, and are reluctant to declare that sworn facts are manifestly impossible or untrue.
4. NEGLIGENCE: Assumption of Risk: Knowledge of Dangerous Obstruction: Unforeseen Danger. It is not enough, to charge plaintiff with responsibility for his injuries, that he had knowledge of the wire embedded in the pathway between the railroad tracks, that he recognized it as a dangerous obstruction to the performance of the duties of himself and similar laborers, and that he undertook to remove it; it is also necessary that it be made to appear that the loop of wire endangered his safety, or that the danger that, in attempting to avoid a suddenly approaching train, his foot would catch in the wire and cause him to fall under another train passing on an adjoining track, was so obvious that an ordinarily prudent man would have appreciated or foreseen such result.
5. ____: ____: Instruction. An instruction on the assumption of risk telling the jury that if the plaintiff lamp lighter knew of the existence of a loop of wire in the pathway between railroad tracks, and saw, appreciated and realized its position, he cannot recover, is tantamount to a directed verdict for defendant, and should be refused unless it also requires the jury to find that he knew or ought to have known that the wire endangered his safety, or that the danger was so obvious that an ordinarily prudent man would have appreciated it.
6. ____: ____: ____: Abstract Statement of Law: Correlation to Evidence. An instruction on assumption of risk which is not predicated on the facts and is a mere abstract statement of the law, but nevertheless directs a verdict for defendant, is properly refused; and likewise it should be refused if it authorizes the jury to consider "any situation creating a risk."
7. ASSIGNMENTS: Abandonment. Failure of appellant to mention, in his points and argument, complaints of the action of the trial court in refusing his withdrawal instructions, is held to be an abandonment of such assignments.
8. WITHDRAWAL INSTRUCTIONS: Negligence. Where the giving of all or any of defendant's requested instructions withdrawing from the consideration of the jury the acts of negligence alleged in the petition, would be equivalent to a directed verdict for defendant, or would affect the acts of negligence alleged, all such instructions should be refused where the evidence makes a submissible case.
9. ____: Acts of Negligence: Abandonment. By submitting the cause on certain charges of negligence, plaintiff abandons all other charges and they drop out of the case, and it is therefore unnecessary to give defendant's requested instructions withdrawing such abandoned charges from the consideration of the jury.
Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.
AFFIRMED.
J.L. Howell and Roy W. Rucker for appellant.
(1) Since this is an action under the Federal Employers' Liability Act, the Federal rule as to assumption of risk applies. Hoch v. Railroad, 315 Mo. 1199. (2) There was a total failure to prove that defendant had either actual knowledge or constructive prior notice of the location of the wire. The demurrer to the evidence should, therefore, have been sustained. Winslow v. Railroad, 192 S.W. 121; Hoch v. Railway, 315 Mo. 1208; Boldt v. Railway, 245 U.S. 445; Gila Valley Railway v. Hall, 232 U.S. 101; Jacobs v. Railway, 241 U.S. 235; Railway v. De Atley, 241 U.S. 313; Erie Railway v. Purucker, 244 U.S. 324; Railway v. Berkshire, 254 U.S. 418. (3) The master is not an insurer of the safety of the place where employee works and fully discharges his duty when he exercises reasonable care to furnish the servant with a reasonably safe place in which to perform his work. (4) No warning of danger is required where the servant is aware of the peril to which he is about to be exposed or where it is obvious and appreciated. Knoles v. Bell Tel. Co., 218 Mo. App. 235. (5) Instructions G and H, offered by defendant and refused by the court, properly state the rule of assumption of risk applicable to this case. Hoch v. Railway, 315 Mo. 1208; Boldt v. Railway, 245 U.S. 445; Gila Valley Railway v. Hall, 232 U.S. 101; Jacobs v. Railway, 241 U.S. 235; Railway v. De Atley, 241 U.S. 313; Erie Railway v. Purucker, 244 U.S. 324; Railway v. Berkshire, 254 U.S. 418. (6) Testimony which is at variance with physical facts will not be considered even in passing on a demurrer. New York Tel. Co. v. Becker, 30 F.2d 579; Hickey v. Railway, 8 F.2d 130.
Mark D. Eagleton, John F. Clancy and Hensley, Allen Marsalek for respondent.
(1) The court properly refused defendant's demurrer to the evidence. (a) In passing upon a demurrer to the evidence, it is the duty of the court to accept as true all evidence in favor of plaintiff, and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn therefrom, and the court cannot draw inferences in favor of defendant to countervail or overthrow inferences in plaintiff's favor. The court can sustain a demurrer only when the evidence and the inferences to be drawn therefrom, considered in the light of the foregoing rule, show conclusively that plaintiff has no case. Buesching v. Gas Light Co., 73 Mo. 219; Gratiot v. Railroad, 116 Mo. 466; Troll v. Drayage Co., 254 Mo. 332; Scherer v. Bryant, 273 Mo. 602; Caroline etc. Ry. Co. v. Stroup, 239 F. 75, 244 U.S. 649, 61 L.Ed. 1371; Bolton-Pratt Co. v. Chester, 210 F. 255; Goodwin v. Traction Co., 175 F. 63. (b) The jury had the right to find that a wire, of the character and in the position described by plaintiff, located in the space between defendant's tracks, habitually used by its employees as a pathway, rendered the place dangerous and not reasonably safe. This evidence was sufficient to support an inference of negligence. Baltimore Railroad Co. v. Flechtner, 300 F. 318, 266 U.S. 613; Lock v. Railroad, 281 Mo. 532; Holloway v. Ry. Co., 276 Mo. 490; Winslow v. Railroad (Mo. App.), 192 S.W. 121; Lancaster v. Fitch (Tex.), 239 S.W. 265; Barbee v. Davis, 187 N.C. 78. (c) From the evidence as to the appearance and condition of the wire, and the manner in which it was imbedded in the earth, the jury had the right to draw the reasonable conclusion that it had been there sufficiently long for the defendant, in the exercise of ordinary care, to have discovered and removed it. Gutridge v. Railroad, 105 Mo. 520; Dakan v. Mere. Co., 197 Mo. 254; Kramer v. Power Light Co., 311 Mo. 369; Vordermark v. Lumber Co. (Mo.), 12 S.W.2d 501; Koonse v. Steel Works, 221 Mo. App. 1235; Ogan v. Railroad, 142 Mo. App. 248; Strobel v. Mfg. Co., 148 Mo. App. 22; Johnson v. Bolt Nut Co., 172 Mo. App. 219; Bone v. Contracting Co. (Mo. App.), 191 S.W. 1062; Reese v. Biscuit Co. (Mo. App.), 224 S.W. 63; Brown v. Ry. Co. (Mo. App.), 227 S.W. 1069; Stewart v. Ry. Co. (Mo. App.), 262 S.W. 441. (d) Furthermore, the plaintiff testified pointedly, and without objection by defendant, that the condition of the wire showed that it had been there at least for several days. The jury had the right to consider said evidence on this issue. Riley v. City of Independence, 258 Mo. 681; Eyerman v. Sheehan, 52 Mo. 221; Taylor v. Jackson, 83 Mo. App. 649; Standley v. Railroad, 121 Mo. App. 543; Kirchof v. U. Rys. Co., 155 Mo. App. 83. The foregoing evidence, having been admitted without objection, its probative effect was for the jury. Farber v. Railroad, 139 Mo. 254; McVey v. Barker, 92 Mo. App. 506; Covell v. Tel. Co., 164 Mo. App. 635; Sullivan v. Railroad (Mo. App.), 211 S.W. 903; Stewart v. Ry. Co. (Mo. App.), 262 S.W. 443; Herrin v. Stroh Bros. (Mo. App.), 263 S.W. 875. (e) The defendant, having alleged in its answer that the plaintiff's injury was the result of a risk, hazard and danger which was open and obvious, it cannot, on appeal, be heard to contend that there was no danger incident to the location and position of the wire, and that defendant could not have discovered the wire, in the exercise of ordinary care. The defendant is bound by allegations of its answer. Grott v. Shoe Co. (Mo. App.), 2 S.W.2d 785; McKenzie v. U. Rys. Co., 216 Mo. 19; Jewell v. Mfg. Co., 143 Mo. App. 210. (f) In a case of this nature the account of the occurrence as given by plaintiff can be rejected as opposed to the physical facts only when that conclusion is so clear and irrefutable that no room is left for the entertainment by reasonable minds of any other. Benjamin v. Railroad, 245 Mo. 609; Kibble v. Railroad (Mo. Sup.), 227 S.W. 46; Kelly v. Rys. Co. (Mo. App.), 225 S.W. 133; Reisinger v. Rys. Co. (Mo. App.), 211 S.W. 909; Maloney v. U.S. Rys. Co., 237 S.W. 509. (2) The court properly refused defendant's Instruction G, on assumption of risk. Said instruction was merely a general statement of law, not in anywise applied to the facts of this case, and was properly refused for that reason, and for the further reason that it did not correctly state the law. Moran v. Railroad (Mo. App.), 255 S.W. 331; Young v. Railroad, 79 Mo. 341; Culbertson v. Railroad (Mo. App.), 178 S.W. 272. (3) The court properly refused defendant's Instruction H on assumption of risk. Said instruction directs a verdict for the defendant upon a finding that plaintiff was familiar with the yard and train movements, saw the wire and realized its position. The evidence tends to show that plaintiff tripped over the wire by reason of a sudden movement caused by the sharp whistle of a train approaching from his rear. As applying to such a situation, the instruction is obviously incorrect in failing to require the jury to find that plaintiff voluntarily encountered the risk with full appreciation of the danger. Dean v. Woodenware Works, 106 Mo. App. 180; Devitt v. Railroad, 50 Mo. 302; Lopez v. Hines (Mo.), 254 S.W. 37; Preston v. Railroad Co., 292 Mo. 442, 260 U.S. 753, 67 L.Ed. 496; Van Loon v. Ry. Co. (Mo.), 6 S.W.2d 587; Oregon etc. Railroad Co. v. Tracy, 66 F. 931; So. Railroad Co. v. Miller, 267 F. 376, 254 U.S. 646; Schlemmer v. Ry. Co., 205 U.S. 1, 51 L.Ed. 681; Seaboard Air Line v. Horton, 233 U.S. 492, 58 L.Ed. 1062; C. O. Railroad Co. v. De Atley, 241 U.S. 310, 60 L.Ed. 1016; Montgomery v. Railroad Co., 22 F.2d 359; Burgess v. Ore Co., 165 Mass. 71; Sumner v. Railroad Co., 235 Mich. 293; 4 Thompson on Negligence (1 Ed.) 623, sec. 4608; Id. 628, sec. 4610. (4) The court properly refused defendant's withdrawal instructions. The court, by Instruction 1, given at plaintiff's request, having submitted the case to the jury on a definite theory of negligence, the other allegations of negligence are regarded as abandoned. Instructions to the jury withdrawing said other allegations of negligence are unnecessary, and at the best confusing to the jury, and their refusal cannot be considered reversible error. Deitzman v. Screw Co., 300 Mo. 196; Snyder v. Tel. Co., 277 S.W. 367; Roland v. Anderson, 282 S.W. 752.
This is an action under the Federal Employers' Liability Act by an employee of defendant to recover against it damages for personal injuries. The jury returned a verdict in plaintiff's favor for $40,000, but as the court ordered a remittitur of $15,000 as a condition precedent to the overruling of defendant's motion for a new trial, plaintiff filed a remittitur in that sum, which resulted in the overruling of said motion. Thereupon judgment was entered for $25,000 in plaintiff's behalf, and defendant appealed.
The evidence adduced on behalf of plaintiff warrants the finding that the accident occurred about two-thirty o'clock in the afternoon on November 13, 1924. He was in the employ of defendant, and was then engaged in lighting switch lamps in the terminal yards of defendant at Venice, Illinois. His age was on said day forty-five years, and his wages $3.12 a day. There were about 150 switch lamps to be lighted, and, in order that all the lamps might be lighted before darkness came on, he began his duties in that regard on said day about twelve-thirty P.M. These lighted lamps were necessary to the handling of freight and traffic in the yards, and to provide signals for the main track over which interstate traffic passed. These switch lamps were from a foot and a half to two feet above the ground. He had been performing his duties for about two hours, and, at the particular time of his injury, he was proceeding to lamps on the main track to light them. Plaintiff's general work was that of track laborer, but at this time and for the space of a week, due to the regular lamp lighter's illness, he was designated as a substitute for him and was thus engaged in said duties. On a previous occasion he also had acted as lamp lighter for a period of a week.
The physical situation of the terminal yards at the place plaintiff suffered injuries may be described thus: Two railway tracks existed, one a main-line track and the other a drill track, both of which ran generally north and south. The drill track was east of the main track. A space of eight or nine feet obtained between the two tracks. This space was ordinary earth or ground, and was beaten smooth and hard. It was used by switchmen and other employees, day and night, as a pathway. The ground sloped from the drill track to the main track, which latter track was about a foot lower than the former.
Plaintiff ordinarily would finish lighting the lamps about four o'clock in the afternoon. He was walking northwardly between the drill track and the main track to light main-track lamps, and was from four to four and a half feet from the main track. When he started no train was moving on either of the tracks, but there was a train called the "drag" on the main line. This drag started to move to the north as he was going over. He testified:
"Q. Now, will you tell us what you were doing — how you got hurt — tell me that? A. Well, I was walking north, going to light these other lamps; I saw this piece of wire in sort of a loop, it was about three inches out of the ground and about fourteen inches long, and my intention was as I got to the wire to stoop down and remove it, as required by good railroading, so no one would have to step on it or be in danger, and I went sideways to pick up the wire, when a sharp whistle blew from an engine on the drill track to my right, and as I moved over to get out of the way of this engine, which was almost upon me, my right foot caught in this piece of wire and I fell over under the wheel.
"Q. Fell where? A. Under the wheels of the car.
"Q. Under the wheels of what car? A. Left foot — the track of the main line to my left.
"Q. Now, this wire, can you describe to us how it was embedded in the ground there? A. Both ends seemed to be pretty tight in the ground — solid ground.
"Q. What was the appearance of the wire there? I mean, what kind of a wire was it? A. Something like a hay wire — an old, rusty wire.
"Q. And the ground in around the ends where the wire was located, how was that ground with reference to whether it was trampled or not? A. Yes; it was trampled upon, showing the wire had been there at least several days."
He stated that he had never seen this before this occasion. He was five or six feet away from it when he first saw it. He intended to remove it, but when he came to a point about three feet away from it, a train on the drill track whistled sharply, causing him to look around to observe the direction of the train. The whistle startled him, causing him to step to the left or west in an effort to get out of the way of the train on the drill track because of danger of something dragging from the train, that is, the car doors or something of that sort. He stepped that direction to keep in the clear. As he thus stepped, his foot caught in the loop of the wire and he fell under the train running on the main track, which cut off his foot, causing further amputation. When the whistle blew, he was close to the wire and was just about to pick it up. The east and west ends of this wire were embedded in the ground and extended about three inches above the surface. This loop of wire was at right angles with a path along which plaintiff was proceeding. In performing his work on previous days plaintiff followed the same general course of travel, varying his course slightly according to the presence and the situation of trains and cars on the tracks. Other pertinent facts, if any, will be adverted to in the opinion.
I. It is said by defendant that the trial court erred in refusing its instructions, offered at the close of plaintiff's evidence and at the close of the whole evidence, directing a verdict in its favor. This contention is based on two postulates: first, the failure of the evidence to warrant a finding that defendant was negligent; second, the assumption of the risk by plaintiff.
Defendant avers that the evidence wholly fails to develop that defendant had prior notice or knowledge, either actual or constructive, of the existence of the wire embedded Defendant's between the tracks, which tripped plaintiff. The Negligence: evidence warrants the finding that the loop of wire, Notice. over which plaintiff tripped, causing him to fall with his foot under the train's wheel, was embedded in the ground on defendant's property, between the drill track and the main track, in a passageway used by defendant's employees in connection with their work. Plaintiff, in proceeding from lamp to lamp, was not limited to a defined or specific route or path, but his pathway varied somewhat according to conditions confronting him. As he was then going to a lamp, he was within the scope and course of his duties. Moreover, in commencing and intending to pick up the wire, as it was within the path that he was likely thereafter to use in accomplishing his work, he acted within the scope of his employment in making an attempt to remove the obstruction, where it might thereafter, as the result of inattention or forgetfulness, prove dangerous to himself or other employees. This conclusion is fortified by his statement that the removal of the wire was required by good railroading, as that tended to show that defendant authorized the removal of obstructions under such circumstances. The inference that the wire was a dangerous obstruction was permissible. [Baltimore Ohio R. Co. v. Flechtner. 300 F. 318; Lock v. Railroad, 281 Mo. 532. 219 S.W. 919.]
The wire was rusty and old and was securely embedded in ground that had become solid and smooth, as the result of user and the elements, we may infer. This was evidence that the wire had been there for a sufficient length of time to permit an inference that defendant at least had constructive notice or knowledge of its existence. It thus had ample time to have discovered and removed it before plaintiff's injuries occurred. [Baltimore Ohio R. Co. v. Flechtner, 300 F. 318; Kramer v. Power Light Co., 311 Mo. 369, 279 S.W. 43.] Moreover, in answer to a question as to the condition of the grounds around the ends of the wire, plaintiff answered: "It was trampled upon, showing the wire had been there at least several days." Even though we could say that the statement of the witness was a conclusion and not a statement of the conditions, yet, as the statement was admitted without objection, it was not without probative value. [Riley v. City of Independence. 258 Mo. 671, 167 S.W. 1022.]
II. It is said that plaintiff's testimony that, as he stepped to the west, he caught his toe under the wire which caused him to fall so that his left foot was mangled by the cars is so out of harmony with the physical facts as to deprive Evidence: his statement of weight or credence. It is Contrary to argued that, in catching his foot under the wire Physical Facts. as he stepped to the west, we must judicially notice that his head would have fallen to the west towards the train instead of his feet. We cannot say as a matter of law that plaintiff's history of the manner of the occurrence was untrue or impossible. We know from common knowledge that inexplicable happenings do occur. Unless we can say that the evidence was opposed to the immutable laws of physics, we cannot declare it to be fiction. We cannot say that the evidence lacked weight or credence. The courts are reluctant to say that declared facts are manifestly impossible or untrue. [Schupback v. Meshevsky, 300 S.W. 465; Laudwig v. Power Light Co., 24 S.W.2d 625, l.c. 626.]
III. The case that most appropriately states the rule of assumption of risk is Gila Valley Ry. Co. v. Hall, 232 U.S. 94, l.c. 101, 102. The rule as there enunciated reads: "In order to charge an employee with the assumption of a risk Assumption attributable to a defect due to the employer's of Risk. negligence, it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person under the circumstances would have appreciated it." [Boldt v. Railroad 245 U.S. 441; Ches. Ohio Ry. Co. v. De Atley, 241 U.S. 310; Erie Railroad Co. v. Purucker, 244 U.S. 320; Clift v. Railroad, 320 Mo. 791, 9 S.W.2d 972.]
It is evident that plaintiff knew of the existence of the wire or defect in the pathway before him, but it is also evident, we think, that plaintiff cannot be held, as a matter of law, to have known and appreciated, under the facts and circumstances herein, that the loop of wire endangered his safety, or that the danger from it was so obvious that an ordinarily prudent man under the circumstances would have appreciated or contemplated the result. He was about to attempt to remove an obstruction of potential danger. Nothing appeared in the situation before him as he made the attempt to remove it to show that he was in peril. It was the sharp whistle of the engine on the drill track that startled him and his reaction to it was that he was in danger from a train on the drill track. At that moment he was in a place where his duties called him, nevertheless subject to the duty of exercising ordinary care for his own safety. In a position of danger from a train on the drill track, as he thought when the whistle startled him, the fact that he erred in judgment and moved in a direction that caused him to trip on the wire does not charge him, as a matter of law, with knowledge that the loop of wire embedded in the ground endangered his safety or that the danger was so obvious as to be appreciated. [Frankel v. Hudson, 271 Mo. 495, l.c. 504-505, 196 S.W. 1121.]
IV. The defendant offered and the court refused an instruction involving assumption of the risk, which declared, among other things, that if plaintiff knew of the existence of the wire in question, and saw, appreciated and realized its position, then he could not recover. The instruction was tantamount Instruction. to a directed verdict. We think the court properly refused the instruction, because it did not require the jury to find that plaintiff knew or ought to have known that the wire endangered his safety, or that the danger was so obvious that an ordinarily prudent man would have appreciated it. [Gila Valley Ry. Co. v. Hall, 232 U.S. 94; Ches. Ohio Ry. Co. v. De Atley, 241 U.S. 310.] That plaintiff knew of the existence of the wire, and saw, appreciated and realized its position is conceded, but, under the facts and circumstances herein, he is not to be charged as a matter of law with knowledge and appreciation that it endangered his safety. As the instruction did not require that finding, it was properly refused.
V. Defendant complains of the refusal of the court to give an instruction offered by it. This instruction was Refused predicated also on assumption of risk. It reads: Instruction.
"The court instructs the jury that the defense called assumption of risk, interposed by the defendant in this case, is a legal defense under the law as concerned with this case. In this connection the court instructs you that the defense assumption of risk means that if there exists any danger, risk or hazard which is ordinarily incident to the work in which the plaintiff is engaged, plaintiff assumed such ordinary risk, danger and hazard and cannot recover in case he is injured thereby.
"The law further is to the effect that even though the risk, danger or hazard is not ordinarily incident to the work which plaintiff was doing, still, if it appear from the evidence that any situation creating risk, danger or hazard is open and obvious, and is known and appreciated by the plaintiff, then even in that event plaintiff is not entitled to recover and your verdict must be in favor of the defendant."
The instruction was not predicated on the facts. It was merely an abstract statement of the law. It also authorized the jury to consider " any situation creating a risk." It thus broadened the issues and required the jury to find for defendant on any situation relating to his duties that created the risk, notwithstanding that such risk, danger or hazard may not have had causal connection with plaintiff's injuries.
VI. In its assignment of errors, defendant charges that the court erred in refusing to give its withdrawal instructions lettered C.D. E and F. The purpose of these Withdrawal instructions was to withdraw from the Instructions. consideration of the jury the four assignments of negligence alleged in the petition.
While defendant in its assignments of error complains of the action of the court in refusing the instructions, it does not further mention them, either in its points and authorities or in its argument. These assignments of error are not tenable for three reasons. First, that by failing to further notice the assignments, it will be held to have abandoned them. Second, that the giving of all of the instructions would not only have been tantamount to a directed verdict for defendant, but the giving of any of them would have affected the assignments of negligence which were properly submissible to the jury. [Clift v. Railroad, 320 Mo. 791, l.c. 802, 9 S.W.2d 972.] Third, that by submitting the cause on certain assignments of negligence, plaintiff abandoned all other assignments of negligence and they dropped out of the case. The refusal to give the withdrawal instructions could not be said to be error. [Reith v. Tober, 320 Mo. 725, l.c. 737-8, 8 S.W.2d 607.]
It follows that the judgment must be affirmed. It is so ordered. Henwood and Cooley, CC., concur.
The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. All of the judges concur.