Hartz v. Heimos
| Decision Date | 08 January 1962 |
| Docket Number | No. 1,No. 48506,48506,1 |
| Parties | Fred HARTZ and Dora Hartz, Plaintiffs-Respondents, v. Emory HEIMOS, Defendant, and Kirby Shoults, Defendant-Appellant |
| Court | Missouri Supreme Court |
William K. Standard, II, St. Louis (Carter, Bull & Baer, St. Louis, of counsel), for appellant, Kirby Shoults.
Thomas W. Challis, Jr., Flynn, Challis & Sumner, William L. Mason, Jr., St. Louis, for respondents.
Action for damages for the wrongful death of plaintiff's eighteen-year old, unmarried and unemancipated daughter, Geraldine Rita Hartz. Verdict and judgment were for plaintiffs for $25,000, and defendant Shoults has appealed.
Plaintiffs' daughter was struck and killed about 7:20 p. m. on November 24, 1959, by a southbound automobile alleged to have been operated by defendant Shoults. She was standing in the center of, and attempting to cross, Lemay Ferry Road in front of an A & P store, located in the 200 block on the west side of the highway in St. Louis County. The action was instituted against defendant Shoults and one Emory Heimos, who, at the same time and place, was operating an automobile in the opposite direction on the same highway, but, on trial against both, the jury found the issues in favor of defendant Heimos and plaintiffs filed no motion for a new trial.
The cause was submitted to the jury against defendant Shoults solely on the theory that he was negligent in failing to keep a proper watch and lookout while operating his automobile at the time and place in question and that by reason of such negligence he struck and killed plaintiffs' decedent. Since the first assignment on this appeal is that there was no substantial evidence that defendant Shoults failed to keep a proper watch or lookout, or that any such failure caused Geraldine's death, a statement of the evidence favorable to plaintiffs is required. We shall disregard defendant's evidence unless it aids the plaintiffs' case and also disregard evidence affecting the credibility, weight and value of plaintiffs' evidence.
The jury could have found the facts to be substantially as follows: The 200 block on Lemay Ferry Road was built up as 'a pretty well congested business district.' The highway was paved through the area; it was level and had four lanes but the two outside lanes were used for parking and only two lanes for traffic, one north and one south. The traffic lanes were approximately nine feet in width. A filling station was located across from the A & P store, but a little to the north of the main entrance. The highway curb was directly in front of the main entrance to the store.
At the time in question cars were parked on each side of the highway but none in front of the entrance to the filling station opposite the north part of the A & P store. It was a clear, dry night and driving conditions through the area were normal. Although at 7:20 p. m. it was dark, the area in the 200 block was well illuminated by artificial lighting, chiefly from the business houses. There was no regular crossing for pedestrians immediately in front of the A & P store but pedestrians regularly crossed in that area, since it was 750 feet to the Fanny Street intersection to the south, where a school crossing was marked by lines, and it was approximately 300 feet to the north to where Wachtel and Military Avenues intersected in a 'Y' with Lemay Ferry Road. A white line was painted down the center of the highway.
On the evening of November 24, 1959, shortly after 7 p. m., Roger Lutz, Geraldine's boy friend, met her and she asked him to take her out on Lemay Ferry Road to make some purchases at the A & P store. He let her out in front of the store on the right-hand, west side of the highway and he proceeded on south to a filling station where he purchased some gasoline and came back north on the east side of the street and parked his car opposite the A & P store and a little north of its main entrance, where he awaited Geraldine's return.
About 7:20 p. m. he saw her come out of the store carrying a bag of groceries and stop on the west curb directly in front of the main entrance to the store. She was then about a half a car length behind and across the street from his parked car. He looked away and started his motor and as he did so he heard two distinct noises which 'sounded at first like two cars hitting together,' but it happened fast. He looked back and saw someone's body hit and land upon the hood of an automobile going north and he saw the body start rolling. He didn't then realize it was Geraldine. He investigated at once and found her body lying on the center line of the street, her head toward the south and her feet toward the north. She was then unconscious.
As stated, at the time and place in question, Emory John Heimos was driving his 1957 Bellaire, four-door Chevrolet sedan north on Lemay Ferry Road in the lane of travel for northbound traffic. He was taking his mother to the doctor. The left side of his car was approximately three feet from the center line. He was driving at twenty miles per hour. As he was passing through the 200 block and in front of the A & P store, there was traffic ahead of him and behind him, but not close behind him. He looked ahead and saw Geraldine wearing a black cost and standing in the middle of the street on the white line two or three car lengths ahead. She was facing east, standing still and looking southeast, somewhat in the direction from which his car was approaching. At that time there was a steady stream of southbound traffic on the same highway. When his car reached the entrance to the service station opposite the A & P store, he saw the girl's body flying through the air toward his car and he pur on his brakes an instant before the impact. He had continuously watched the girl from the time he first saw her, but he did not see her move until he saw her 'flying through the air toward his car.' While he had not taken his eyes off of her, he 'did not actually see a car strike her.' Her body landed on the hood of his car and then went off and landed in the street, probably a car's length ahead.
Geraldine was immediately taken by ambulance to the St. Louis County Hospital, where she was pronounced dead. A postmortem revealed that she had sustained extensive lacerations and a 'crescentic evulsion' of the left hip, crescent shaped as if caused by a motor vehicle fender, also a star-shaped gouge on the right thigh, numerous fractures of the ribs and an extensive fracture of the skull.
When a St. Louis County police officer arrived at the scene, he found Geraldine's body on the center line of the highway and about fifteen to twenty feet north of the entrance to the A & P store. There were no skid marks observable on the highway and, aside from blood, the only other evidence found on the highway was small bits of glass and bits of plastic from Geraldine's compact, about twenty-eight feet south of where her body was found.
After the ambulance moved the girl's body, Heimos took his mother to the doctor and on the way noticed that his left front headlight had burned out. The glass was not broken and he had the sealed-beam unit removed and replaced with a new one. In addition, he noticed that there were two small dents on the hood of the Chevrolet, where Geraldine's body had landed.
Defendant Shoults resided near Festus, Missouri. He was 43 years of age and was employed by the Pittsburgh Plate Glass Company at Crystal City. He owned a light green, 1957 Pontian automobile with a dark green top. On November 24, 1959, the car was 'quite dirty.' On the night of the 23rd Shoults had slept only about four hours and a quarter, and then gotten up and gone to work at midnight. He worked from midnight until 8 o'clock on the morning of the 24th. He left his home about 2:30 in the afternoon and drove to St. Louis and left downtown in St. Louis at about ten minutes after six. He purchased gasoline at a station on South Broadway and passed along and through the 200 block of Lemay Ferry Road at approximately 7:20 p. m. He drove in the southbound lane at about 20 m. p. h. No one was with him. He was in a normal condition and not sleepy. In going through the area where the A & P store is located, he did not swerve his car, apply his brakes or sound any warning, and he did not see Geraldine standing in the center of the street, although he said he was looking straight down the road. His headlights were on dim, they were pretty good headlights and showed the road ahead for the normal distance. There was artificial illumination around the area in addition to his headlights. Nothing happened to divert his attention prior to the time that he heard a thud on the left side of his vehicle. He did not look around to see what caused it. He did not see anything at that time and didn't stop or slacken speed, but drove on about a block or more and stopped momentarily and noticed an indentation on his left front fender. He did not get out of the car to examine the fender or go back to the place he heard the thud, but went straight on to Festus and to his home and to bed. The first time he knew that a pedestrian had been killed in the mentioned area was at the breakfast hour the next morning. He then went out and looked at his car and observed that the dirt had been removed from the left headlight area of the car and the headlight rim was recessed, 'pushed back.' He also observed the dent he had observed the night before on top of his left front fender. He also observed 'some grease apparently that was on my headlight rim, and at the top of my headlight rim was sort of polished clean, no dirt in there such as balance of my car is all over.' He did not observe any fiber or fabric about the headlight rim or indentation on the fender. He returned his car immediately to the St. Louis County Police in the condition in which it was then in and told them the approximate hour and approximate location in...
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