Steinmetz v. Saathoff

• Decision Date: 13 May 1935
• Docket Number: No. 18310.,18310.
• Citation: 84 S.W.2d 434
• Parties: STEINMETZ v. SAATHOFF et al.
• Court: Missouri Court of Appeals

84 S.W.2d 434

STEINMETZ v. SAATHOFF et al.

No. 18310.

Kansas City Court of Appeals. Missouri.

May 13, 1935.

Rehearing Denied June 24, 1935.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

"Not to be published in State Reports."

Suit by Eva K. Steinmetz against Ralph Saathoff and Tobin Quarries, Inc. From a judgment for plaintiff, the defendants separately appealed, and the appeals were heard together.

Judgment against defendant Saathoff affirmed.

See, also, 84 S.W.(2d) 437.

Lionel Davis, of Fayette, for Ralph Saathoff.

Roy W. Crimm, of Kansas City, for Tobin Quarries, Inc., for appellants.

Bagby & Burton, of Fayette, and Roy D. Williams and W. W. Carpenter, Jr., both of Boonville, for respondent.

TRIMBLE, Judge.

This suit was brought, July 29, 1933, by the widow of William P. Steinmetz, who, on April 3, 1933, about 7:30 p. m., while standing in the private driveway leading from his home to highway No. 5 (also sometimes referred to as Nos. 5 and 20), was struck and instantly killed by an eastbound automobile driven by the defendant Ralph Saathoff. Deceased's home was a short distance from the south or right-hand side of the gravel-paved highway, at a point about 8 miles northwest of the town of Fayette and 4 miles east of Glasgow. He had a driveway running from his lawn north to the right of way of said highway and up to the gravel-paved or traveled portion thereof. At the south edge of said gravel where the decedent's private driveway joined the traveled part of the highway, the driveway was some 22 feet or more wide. Shortly before the fatal accident, deceased's nephew, Manning Steinmetz, Jr., nineteen years of age, drove his car, containing his mother and sister, up to his uncle's driveway and stopped thereon to give him his mail; his car was headed west and fully on the driveway and outside of the paved or traveled part of the highway. Mr. Steinmetz, husband of plaintiff, came out on his driveway to the car and stood on the left of the car and about 10 or 12 feet south of the said paved or traveled part of the highway. While thus standing on his own driveway, the Saathoff car came over the hill going east, that is, on the south track, approaching young Steinmetz's car, and traveling about 60 miles per hour. As young Steinmetz's car was headed west, he was on the side opposite the one he would use in continuing his journey to the west. He immediately started to get somewhat diagonally across to his right side of the road. It was about 1,000 feet west to the top of the hill over which the Saathoff car appeared, but it traveled so fast that it was approaching close to young Steinmetz's car, and just as the latter was about to get out of the south track of the paved highway, Saathoff's car, which was already veering to the south, struck young Steinmetz's rear left wheel, and, continuing to travel on the south shoulder but still veering to the south as it went, struck Mr. Steinmetz standing where he was in his driveway, and knocked him to the east between 90 and 100 feet, and then the car cut back into and across the road and went into the ditch. Mr Steinmetz was dead when picked up. Saathoff did not appreciably slacken the speed of his car as he came down the road and struck Mr. Steinmetz, but the lights of his car revealed Steinmetz standing where he was, as the car came. The road at that point was about 25 or 30 feet wide between its north and south shoulders, and Saathoff's car, passing with its right front wheel about 10 or 12 feet south of, and over on the south shoulder, struck Mr. Steinmetz and then went on back toward the north across the highway and into the ditch. Deceased, Steinmetz, noticed Saathoff's car rapidly coming east when it was 600 or 700 feet away, and called "Look out" to his nephew who was endeavoring to get on the right or north side of the highway. When the deceased called "Look out" to his nephew, he was standing about 10 feet from the south edge of the south or eastbound traveled portion of the highway. The above facts were sworn to by several witnesses, and thus the evidence amply supported plaintiff's claim, and also that Saathoff had ample opportunity to see and know the dangerous situation, and to slow down and take all necessary steps to avoid an accident long before it occurred.

The petition charged that plaintiff's husband, at the hour and date mentioned, was standing on the south side of said state highway "about twelve feet outside of the travelled portion thereof and on the driveway leading south from said highway into the premises of said William P. Steinmetz, and was oblivious to danger from automobiles or other vehicles traveling along said highway; that while said William P. Steinmetz was thus standing on the south side of said highway and on the driveway aforesaid, at the time aforesaid, said defendant, Saathoff, the agent and servant of defendants, J. A. Tobin Construction Company and Tobin Quarries Incorporated, aforesaid, and acting within the scope of his duties and employment, was carelessly and negligently operating said automobile in an easterly direction along the south side of said highway, at a high excessive and reckless rate of speed, to-wit, about sixty miles per hour, and while so operating said automobile at such rate of speed from a point in said highway one thousand feet west of where said William P. Steinmetz stood, easterly along the same the said defendant when within sixty feet of said William P. Steinmetz, without warning of any kind suddenly turned said automobile off of the travelled part of said highway and ran the same against said William P. Steinmetz and struck said Steinmetz with such force and violence that he was thrown a distance of about one hundred feet and by reason thereof, his skull was fractured, both legs were broken, and he was injured internally, from which said injuries the said William P. Steinmetz immediately died."

The petition also alleges a violation of the last chance or humanitarian rule, but as the case was not submitted thereon, it is omitted.

The defendants each filed a separate answer. That of Tobin Quarries, Inc., admitted its incorporation under the laws of Missouri, but denied generally every other allegation. It further set up a plea of contributory negligence on the part of deceased, and then stated:

"That on the date...