Kitchen v. Pratt
| Decision Date | 02 June 1959 |
| Docket Number | No. 7736,7736 |
| Citation | 324 S.W.2d 778 |
| Parties | Nina Bernice KITCHEN, Plaintiff-Respondent, v. Elmer Marvin PRATT, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for appellant.
Earl R. Blackwell, Thurman, Nixon & Blackwell, Hillsboro, for respondent.
This appeal is from a judgment for personal injuries in the sum of $5,000 rendered in favor of plaintiff, Nina Bernice Kitchen, against defendant, Elmer Marvin Pratt, in the Circuit Court of Stoddard County, Missouri, sustained when plaintiff's automobile collided with defendant's pickup truck.
The petition stated that plaintiff was operating an automobile northwardly on Highway 21 in Iron County, Missouri, when it collided with defendant's pick-up truck due to the negligence of defendant in failing and omitting to drive his vehicle upon the right path of the roadway, in driving at an excessive rate of speed, in causing said vehicle to travel from the southbound lane of the roadway across the center line into the northbound roadway, and in operating his automobile on the wrong side of the roadway; that as a result of defendant's negligence plaintiff sustained injuries in the sum of $17,500.
The answer admitted the residence of defendant, and denied all other allegations of the petition.
Plaintiff submitted her case to the jury under Instruction No. 1 on defendant's negligence in failing and omitting to drive his vehicle upon the right hand side of the highway, in causing his vehicle to travel from the southbound lane of said highway across the center line and into the northbound lane and in operating his vehicle in the wrong lane of said roadway. The jury returned a verdict for plaintiff in the sum of $7,000. The court required a remittitur of $2,000 thus reducing the judgment to $5,000.
The collision occurred about 11:00 o'clock A.M., March 23, 1957, on U. S. Highway No. 21 in Iron County, just south of Graniteville. The highway is a two lane, blacktop pavement divided by a white center line. The road was more or less level and straight at point of collision and the pavement was wet from rain. Plaintiff testified that at the time of the collision she was traveling north, at a speed of not over 40 miles an hour; that she first observed defendant's truck before he crossed the bridge, which, at that time, was in his own lane of traffic; that as it left the bridge he came gradually over on plaintiff's side of the road, over the white line; that she slowed her car, put on the brakes, pulled over on the shoulder as far as she could; that defendant's truck kept coming and hit her car on the left front side, turning it completely around facing south. She did not know whether her car was moving at the time of the collision. On cross-examination plaintiff testified that she did not hear a tire on defendant's car blow out and she did not know how far defendant's truck was from her car at the time it came off the bridge or how fast he was traveling.
Plaintiff's evidence was supported by the testimony of Elaine Kitchen, her daughter, who was riding in the car with her at the time, and her husband, Everett Kitchen, who came to the scene of accident shortly after it happened. We think the facts definitely show that the accident took place in plaintiff's lane of traffic.
James R. Edmunds testified for plaintiff as follows:
(To this question defendant objected, which objection was by the court overruled and witness answered.) 'Well, I was traveling approximately 30 or 35 miles an hour.'
Witness stated that it was raining that day and slick. He testified:
He stated he was not close enough to tell the positions of the automobiles when they came together.
Frank Sheible, State Highway Patrolman, testified for plaintiff that he was called to investigate the accident which occurred on Highway 21; that the pick-up truck, belonging to Elmer Marvin Pratt, and the Chevrolet sedan, driven by plaintiff, Nina Bernice Kitchen, were still at place of accident. He testified that it was raining and the pavement was wet; that plaintiff's car had been turned completely around and headed south on the east side of the highway and that the truck was setting near the shoulder on the blacktop. He gave this testimony:
(Witness stated the marks showed to be three feet over the center line.)
'Q. When you say three feet over the center line, you mean in the northbound lane? A. Yes.
'Q. Did you take a statement from Mr. Pratt? A. (Reading.)
On cross-examination the witness testified:
* * *
'The Court: Objection sustained.'
Witness then testified that the tire had a split in it eight or nine inches long lengthwise of the tread or crosswise; that the skid marks started in the southbound lane and went into the northbound lane into the path of Mrs. Kitchen's vehicle.
The Sheriff of Iron County testified that there were some marks on the east side of the road in the right lane going north where something had scarred the road; that they were the only skid marks he saw. On cross-examination he testified:
Harry LaCamp testified for defendant. He stated he operated a repair shop; that he removed the left front tire from defendant's truck, noted the serial number thereon and identified the tire as the one he removed from the truck.
Defendant testified that on the day in question he was using the truck for selling shrubbery; that he had owned it about nine months and had driven it about 1,000 miles since its purchase; that the tires on the front were the same as were on the truck at the time of purchase and he had had no difficulty with them. He identified exhibit No. 4 as the front tire on his truck. He stated he was traveling south on Highway 21; that it was raining and the road was an average two-lane, blacktop highway; that as he passed over a culvert he had a blow-out on the left front tire; that at that time he was traveling in his right hand lane and plaintiff in her own proper lane about 150 feet from him when his tire blew out. He said when the tire blew out the car pulled to the left; that he began to fight it, pulling on the steering wheel, trying to hold it in the road, and that he pulled so hard he broke the steering wheel; that he was not able to hold it and that the car gradually went over on the other side of the road; that the blow-out pulled it to his left; that he made a little attempt to apply his brakes, but not much, because he was afraid it might turn the truck over or pull it crossways of the road; that when the tire blew out he was traveling about 35 miles an hour; that at the time of the collision he was to the left of the center line, not over two or three feet of his car would have been across the center line.
Appellant assigns as error the trial court's action in admitting evidence by plaintiff's witness, Edmund, over defendant's objection as to the fact that defendant had overtaken and passed him some 700 yards north of the accident for the reason that it was too remote and was no evidence of negligence at the time of the collision.
To support this contention appellant cites Wood v. Claussen, Mo.App., 207 S.W.2d 802; Harter v. King, Mo.App., 259 S.W.2d 94; Sisk v. Industrial Track Const. Co., Mo.Sup., 295 S.W. 751; McComb v. Vaughn, 358 Mo. 951, 218 S.W.2d 548; and Stelmach v. Saul, Mo.App., 51 S.W.2d 886.
This law was declared in the cases above cited but all of such authorities were cases in which speed was a prime factor in the finding of negligence. Respondent did not submit her case on nor instruct on the defendant's negligence by reason of speed, either disjunctively or conjunctively. Speed was not an ultimate fact to be found by the jury. This evidence was properly admitted for another reason. The witness testified that the truck passed him when he was driving 30 or 35 miles an hour, 700 yards from the point of collision with plaintiff's car, and that he was never out...
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