Kettle v. Musser's Potato Chips, Inc., 42918

• Decision Date: 23 March 1964
• Docket Number: No. 42918,42918
• Citation: 162 So.2d 243,249 Miss. 212
• Parties: Mrs. Annie White KETTLE v. MUSSER'S POTATO CHIPS, INC. and William Lewis (Louis) Matthews and Ben Phillips Bridgewater.
• Court: Mississippi Supreme Court

Page 243

162 So.2d 243

249 Miss. 212

Mrs. Annie White KETTLE v. MUSSER'S POTATO CHIPS, INC. and William Lewis (Louis)

Matthews and Ben Phillips Bridgewater.

No. 42918.

Supreme Court of Mississippi.

March 23, 1964.

Crawley & Ford, Kosciusko, for appellant.

Crawley, Brooks & Guyton, George J. Thornton, Kosciusko, for appellee.

BRADY, Justice:

At approximately ten minutes past twelve midnight on the morning of July 4, 1962, Hiram Kettle, husband of the appellant, Mrs. Annie W. Kettle, telephoned her from Durant, Mississippi, asking her to drive from their home in the Possumneck Community and pick him up in Durant. He is a truck driver with Commercial Carriers of Memphis, Tennessee. Appellant dressed, and proceeded in her 1959 Ford automobile to West, Mississippi, where she turned south on Highway 51 and had proceeded approximately two and one-half miles south of the Town of West when her car was sideswiped by a car which was proceeding north on Highway 51, driven by a Negro by the name of Lenora Davis, who was under the influence of intoxicating liquor. Davis was traveling with two Negro men, both of whom also were intoxicated. The collision bent the left front wheel of the car being operated by the appellant so that it went off of U. S. Highway 51, which is located on a fill approximately 15 to 20 feet in heighth, on the east side, and the car driven by Lenora Davis ran down the fill on the west side of said highway and continued until it struck a telephone pole, situated on the right-of-way, the cars coming to rest approximately 625 feet apart. U. S. Highway 51 is of concrete, with blacktop patching, nineteen feet, eleven inches wide, with dirt shoulders five feet, nine inches wide on the east side, and four feet, five inches wide on the west side. The appellant received no injuries from the collision, but her car damage was estimated to be approximately $750, and the damage to Lenora Davis' car was estimated at $500. The damage to appellant's car was on the left front and side and the damage to the Davis car was likewise on the left side and front. The Negro was a resident of Freeport, Illinois. After being forced into a bar pit below the highway, Mrs. Kettle took her pocketbook, a small Chihuahua dog which was accompanying her, and a flashlight, and climbed up the fill and onto the concrete highway. After getting back onto the highway, the appellant crossed over to the west shoulder where she met the defendant, Lenora Davis, approximately 225 feet from her wrecked automobile, and ascertained that he was intoxicated. While Mrs. Kettle was on U. S. Highway 51, or on the west shoulder, the tractor-trailer unit owned by the appellee, Musser's Potato Chips, Inc., which was being driven by the appellee, William Lewis Matthews, as their agent and servant, and while engaged in the performance of his duties and in furtherance of his master's business, was stopped in the northbound traffic lane of U. S. Highway 51, approximately opposite the point where the appellant, Mrs. Annie W. Kettle, was standing, and where the appellee, William Lewis Matthews testified she was talking to Lenora Davis and the other Negroes. Appellee William Lewis Mattews asserts that he depressed or dimmed the headlights of the truck which he was operating, though he did not look to see, nor remember if the red light indicator on the dashboard indicated that the lights were dimmed. He did so because he could see something in the road, and claimed that he dimmed them in order that he might be able to tell more easily what the objects were. He claimed the appellant flagged him down with a flashlight. He saw the appellant and the Negroes, and likewise the evidence in the road where appellant's car had been sideswiped by the car driven by Lenora Davis.

Matthews testified that shortly after he stopped, he saw another vehicle coming, from the north, traveling in a southerly direction, in the southbound traffic lane of Highway 51, and that he called three or four times to the appellant and to the Negroes to get out of the highway before the Negroes did so, but that the appellant waited until the approaching car was right upon her before she endeavored to get out of the southbound lane of traffic, or west lane of traffic of Highway 51. The record shows that the second car using the southbound or west lane of Highway 51 was being operated by the appellee, Ben Phillips Bridgewater, a barber who resides in Memphis, Tennessee, and with him in his car was his wife and two minor children. Ben Phillips Bridgewater testified that the lights of the truck were bright and he dimmed his lights, asking thereby that the lights on the tractor-trailer unit be dimmed also, but that they were not dimmed, and that he was blinded by the headlights of appellees' tractor. He explained this blindness by saying that he was not exactly blinded but that his vision was obstructed and he could not see any object behind the lights. The appellee Bridgewater testified that when he left the Town of West, Mississippi, he was driving approximately fifty to fifty-five miles per hour, and at the time he struck the appellant, he was traveling thirty-five to forty miles per hour. This speed is borne out by the fact the appellee Matthews testified that the appellant was knocked up into the air at least the heighth of his truck, which is twelve feet, eight inches high, and that she was propelled over the embankment and down into the bar pit. The evidence shows that she was lying some twenty three feet from the highway proper when her body came to rest at a point opposite and midway or to the end of the truck body. Bridgewater further testified that he did not see Mrs. Kettle whom he contended was in the southbound portion of the highway until he was within approximately twenty-four feet of where she was standing, that he was blinded by the lights of the tractor-trailer, which Matthews was operating. He did not apply his brakes until he saw appellant. He concedes that he was under the duty to keep a proper lookout for objects ahead and other vehicles and persons in his line of travel, and the only reason he could give for striking the appellant, other than his speed and the fact that he was blinded by the tractor-trailer lights was that Mrs. Kettle was in the southbound lane of the highway. Appellee Bridgewater testified that when he first saw the truck, he thought that the truck was moving or running, but stated further that when he got fairly close to the truck and saw that it had stopped, he slowed down by taking his foot off of the accelerator, and the first thing he saw was some Negroes standing on the shoulder of the highway and then he hit Mrs. Kettle, and subsequently ran into the Musser's Potato Chips van in trying to avoid striking her.

Appellee Bridgewater testified that he could not see past the headlights of the truck, and that when he first saw Mrs. Kettle that he was about twenty-four feet north of her and he struck her at a speed of thirty-five to forty miles per hour. Bridgewater admitted that although he could not see beyond the lights of the truck, he nevertheless continued to operate his automobile at that speed. He said that his vision was obstructed by the lights of the truck and admitted that he could not see past them. In one instance, Bridgewater testified that the appellant was standing three or four feet from the highway, that he meant the right shoulder, and then he corrected this statement by saying that she was standing three or four feet into the highway. He explained that the Negroes that he saw were standing on the shoulder of the road in front of the headlights, and that they were the length of the van, some forty to fifty feet north of the Musser tractor-trailer unit. Appellee Bridgewater further testified that he did not apply his brakes until he saw the appellant, and that he pulled into the side of the truck in an effort to avoid striking her. He testified that the appellant was standing about middleway of the van, and that he did not see her until he had gotten out of the glare of the headlights. Therefore, according to his testimony, he had apparently passed the lights of the parked truck belonging to the appellee Musser before he put on his brakes. This is corroborated by appellee Matthews, and Patrolman Howell's testimony regarding the skidmarks. Furthermore, Bridgewater testified that he was aware that some danger might be lurking ahead, but that he didn't apply his brakes until he actually saw the appellant, and was twenty-four feet north of her. The proof indicates that after applying his brakes the car skidded 58 to 60 feet before stopping 10 feet behind the van, after striking it. Appellant contends that the trial court refused to permit the appellee Bridgewater to be examined as an adverse witness, with reference to whether or not the lights of the defendant, Musser's Potato Chips, Inc., truck failed to dim its lights, but the record discloses, however, that finally this testimony was admitted and the objections by appellee were overruled. The record shows that the highway is straight at this point, was dry, was up on a fill. It was open for three and one-half or four miles, south of the Town of West, and was open and straight at the place where the Negroes' car collided with appellant's car, and where appellee Bridgewater's car struck her.

The appellant vigorously denied several times that the truck of appellee, Musser's Potato Chips, Inc., ever dimmed its lights as it approached her from the south as appellee Matthews claimed. Appellant further stoutly maintained that she was standing on the west shoulder of the highway off of the pavement when she was struck by the appellee Bridgewater's car. This was denied by the appellee Bridgewater and by the appellee William Lewis Matthews. The injuries which the appellant sustained were substantial and permanent. Her medical and hospital bills amounted to $5,084.65. She was...