Kitchen v. Pratt

324 S.W.2d 144, 1959 Mo. App. LEXIS 529
CourtMissouri Court of Appeals
DecidedMay 15, 1959
DocketNo. 7757
StatusPublished
Cited by6 cases

This text of 324 S.W.2d 144 (Kitchen v. Pratt) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kitchen v. Pratt, 324 S.W.2d 144, 1959 Mo. App. LEXIS 529 (Mo. Ct. App. 1959).

Opinion

McDowell, judge.

This appeal is from a judgment rendered in the Circuit Court of Stoddard County, Missouri, in favor of plaintiff and against defendant for damages in the sum of $1,750 arising out of injury to plaintiff’s wife and damage to his automobile resulting from an automobile collision.

The petition alleged that plaintiff’s wife was operating his automobile northwardly on State Highway 21 in Iron County and that she came into collision with defendant’s pick-up truck causing injuries to his wife, the result of which plaintiff incurred medical expenses, loss of services and damage to his automobile in the sum of $10,800.

Four assignments of negligence were relied upon in the petition for recovery: A failure to drive on the right half of the roadway; excessive speed; that defendant negligently caused his vehicle to travel from the southbound lane of the roadway across the center line and into the northbound lane; and that defendant negligently operated his vehicle in the wrong lane of the roadway.

The answer was a general denial.

Plaintiff submitted his case to the jury on the defendant’s alleged negligence in failing and omitting to drive on the right side; in permitting his automobile to travel from the south lane of the roadway across the center line into the north lane of the roadway; and in then and there operating his vehicle in the wrong lane of the said roadway.

The jury returned a verdict for plaintiff for $1750 upon which judgment was rendered. Defendant appealed.

The evidence decisive of the issues is mostly undisputed. The collision between plaintiff’s car and the defendant’s pick-up truck occurred about 11 o’clock A.M., March 23, 1957, on State Highway 21 in Iron County. Highway 21 is a two-lane, blacktop pavement with a white center line. At point of collision the road is more or less level and straight and at the time the pavement was wet from rain.

Nina Bernice Kitchen, wife of plaintiff, testified that as she was driving north in her lane of traffic at a speed of about 35 or 40 miles per hour, on March 23, 1957, about 11 o’clock A.M., she observed defendant’s pick-up truck about the time it reached a bridge, coming south; that as the truck left the bridge she saw it leaving defendant’s side of the road, crossing the white line to her side; that she pulled her car over to the right so that the right wheels of her car were on the shoulder when defendant’s truck struck the car she was driving, turning it completely around, facing back south. She stated that it looked to her like defend[146]*146ant’s truck came suddenly across the white line.

There is no dispute in the evidence that defendant’s truck did cross the center line and strike plaintiff’s car on the east side of the road, as testified by plaintiff’s wife.

Frank Sheible, State Patrolman, testified on behalf of plaintiff that he was called to the scene of accident and made an investigation of the collision; that when he arrived he found the pick-up truck, driven by defendant, and the Chevrolet sedan automobile driven by Nina Kitchen. He gave this testimony:

“Q. All right, what did Mr. Pratt tell you? A. He told me that he had a blowout on the left front and it pulled it into the other car. He said the accident was his fault.”

Witness testified that there was an indentation on the highway, three feet from the center line on the east side; that when he arrived the pickup truck was about 120 or 130 feet south of the bridge. On cross-examination witness reiterated that Pratt had told him he had a blow-out on his left front wheel and it pulled him into the other car. He gave this testimony:

“Q. * * * Now, did you observe a scuffed mark leading up to that mark you found three feet from the center line? A. Yes, you could see where the tire had blown and pulled over the center line.
“Q. Now, where in the highway did this ■scuffed mark leading up to the mark in the highway start ? A. You could see where he ■came over the bridge, the tracks, it was drizzling rain the best I remember, and you ■could see tire marks on the bridge where it ■came across, just about on the center line, and I don’t know whether the tire blew there, but as it got on down there and the tire went down you could see the marks.
“Q. Where did the scuff mark begin from the blown out tire, Trooper Sheible, in which lane did that scuff mark begin? A. It started just about the center line, right at the center line, and pulled across. The truck loaded, it pulled across the center line.
“Q. Did you examine Mr. Pratt’s automobile, or rather pickup truck ? A. Yes.
“Q. Did you observe whether or not there was a tire blown out on the pickup truck ? A. Oh, yes.”
The witness testified that a hole was blown in the side wall of the tire (indicating) a distance of some fourteen to sixteen inches and three inches wide.
Ogie Sellinger, Sheriff of Iron County, testified that he was called to investigate the collision and found that both the automobiles involved were on the east or right hand side of the road. He gave this testimony:
“Q. Did you observe any indentations in the highway there of any kind? A. There was some marks on the road.
“Q. What kind of marks, Sheriff? A. Well, I believe the left front tire of the pickup had blown out and there was rim marks or something had made a mark on the blacktop road.
“Q. On which side of the road was that ? A. Well, it’s on the right lane going north.”

On cross-examination the sheriff testified that the left front tire of the Pratt vehicle was flat. He stated that the only mark he saw on the road was where something had made a mark on the blacktop; that he did not remember whether there were any marks leading up to that mark. He said there was extensive damage to the left front tire but that he could not tell just what caused the hole in the tire but it was flat.

Defendant testified that as he left the bridge, going south, he was traveling at a rate of around 35 miles per hour in his 1954 Chevrolet pick-up truck; that he heard a big noise, like a blow-out, which began to pull his car to the left. He gave this testimony:

[147]*147“Q. All right, what did you do? A. I begin pulling the steering wheel to the right trying to hold it in the road.”

He said that he continued to pull on the wheel until his car hit plaintiff’s car. He testified that the collision occurred in the lane of traffic of plaintiff’s car; that he had gotten over the center line at the time of collision. He gave this testimony:

“Q. How far away would you say that you were, Mr. Pratt, from Mrs. Kitchen’s automobile when this blowout happened? A. Well, I think it was around 250 feet, 300 feet, something like that.”

He said he was just estimating the distance; that he could not tell just exactly how far south of the bridge the collision occurred ; that he could not testify as to how fast plaintiff’s car was traveling but he would say about the same speed as his car. He gave this testimony on cross-examination:

“Q. Did you, when you heard this noise and started this gradual pulling over there, Mr.

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324 S.W.2d 144, 1959 Mo. App. LEXIS 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kitchen-v-pratt-moctapp-1959.