Pratt v. Kistler
| Decision Date | 13 February 1925 |
| Docket Number | 5597. |
| Citation | 233 P. 600,72 Mont. 356 |
| Parties | PRATT v. KISTLER. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.
Action by Kenneth Pratt, a minor, by his guardian ad litem, Mrs Kate C. Pratt, against Dr. H. D. Kistler. Judgment for plaintiff, and defendant appeals. Affirmed.
Frank & Gaines, of Butte, for appellant.
James E. Murray and Maury & Maury, all of Butte, for respondent.
Plaintiff recovered judgment against the defendant for injuries sustained by him when a bicycle upon which he was riding was run into by an automobile driven by defendant. The defendant has appealed, and his only complaint is that the court erred in denying his motion for a directed verdict, made at the close of all the evidence.
The complaint charged the defendant with negligence in several respects, among them that he did not give warning of his approach, and that he failed to keep a lookout ahead. The defendant admitted the collision, but denied liability on the ground that plaintiff was guilty of contributory negligence.
It appears from the testimony that Park street in the city of Butte extends east and west, and at the point involved in this suit is 59 feet wide between the north and south curbs. A street car track extends along the center of the street. The distance from the north rail of the car track to the curb on the north side of the street is 27.35 feet. Alabama street runs north and south and crosses Park street at right angles. This street is 40 feet wide between the sidewalk curbs.
The defendant's account of the incident is that he was driving west on Park street in an open type Pierce-Arrow car without curtains, along a course midway between the street car track and the curb on the north side of the street at about 10 o'clock p. m., with his headlights on. The car had a right-hand drive. Lloyd Gage was at defendant's left on the front seat; in the rear seat defendant's wife sat at the left; next to her was Mrs. Gage; and on the right side was the defendant's son Donald Kistler, with Richard Evans on his lap. When he reached a point 90 feet east of the intersection of Alabama street he looked into that street and continued to do so until he reached its east line, but did not see the plaintiff approaching; and, continuing in the same course, just as he was about to cross the west line of Alabama street, the plaintiff, riding his bicycle, headed directly south, dashed in front of the car and received the injuries complained of. As soon as defendant saw the plaintiff he applied the brakes to his car and stopped as quickly as possible. All of the witnesses who were asked about it at the trial testified that as the defendant's car approached the scene of the accident it was traveling at from 12 to 15 miles per hour, and likewise that, at least until it reached the east line of Alabama street, it was midway between the car tracks and the curb.
There is some testimony in the record tending to corroborate defendant's account. Lloyd Gage said that the collision occurred immediately after plaintiff appeared in front of the car. A duly qualified witness said that under the circumstances shown to exist at the time, a car like defendant's, going at fifteen miles per hour, would be brought to a stop in a distance of 70 to 73 feet from the time the driver started to apply the brakes.
Clem Vogel, who saw the bicycle and the car just at the time of the collision, from a point not more than 60 feet away, and immediately walked over to the car, said that when he reached it "it was just a little bit past the entrance to the Mueller home and it was midway between the sidewalk and the street car track." The entrance to the Mueller home is between 50 and 60 feet west of where defendant placed the point of collision.
Plaintiff's account is that he rode his bicycle down the west side of Alabama street, traveling about 5 miles per hour, and, at a point about 3 feet from the north line of Park street, looked east on that street to see if any car was approaching and saw none. He then made the turn west on Park street, riding along about 3 feet from the curb, and had proceeded about 5 to 10 feet when the defendant's car ran into him from behind and inflicted the injuries. Other witnesses testified that before the accident plaintiff had made the turn onto Park street and was riding west as close as possible to the curb, "hugging the curb," one of the witnesses said. The witness Barker, who observed the collision from a point some 200 or 300 feet east on Park street, testified that just before the car came in contact with the bicycle, it (the car) swerved to the left and then stopped quickly. The witnesses Evans and Donald Kistler, who were riding in the car and got out immediately after the collision, testified that the car was then parallel with the curb on the north side of Park street at a point 20 to 30 feet west of the Alabama street crossing, and these two witnesses, as well as the witness Barker, said it was then about 3 feet away from the curb.
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