Brandes

Respondent brought this action to recover, damages for personal injuries sustained as a result of being struck by an automobile driven by the appellant Manbert and belonging to his employer and coappellant RuckerFuller Desk Company. The trial took place before a jury and respondent was awarded a verdict. Judgment was entered accordingly and this appeal was taken therefrom. A reversal is sought upon the ground mainly that two instructions given at respondent’s request were erroneous, appellants contending that thereby the jury was authorized to find against the Rucker-Fuller Desk Company on issues of negligence not raised by the pleadings and having no support whatever in the evidence.

The complaint alleged in substance that Manbert “so negligently and carelessly operated and controlled” the automobile as to cause it to leave the highway and to run along and upon the sidewalk and strike respondent, etc. The answer consisted merely of specific denials of the allegations of the complaint, no special or affirmative defenses being pleaded, and no claim being made at any time that respondent was at all negligent. The following were the undisputed facts adduced in support of the…