Toeneboehn v. St. Louis-San Francisco R. Co., No. 25493

CourtMissouri Supreme Court
Writing for the CourtLindsay
Citation298 S.W. 795
Docket NumberNo. 25493
Decision Date16 September 1927
PartiesTOENEBOEHN v. ST. LOUIS-SAN FRANCISCO R. CO.
298 S.W. 795
TOENEBOEHN
v.
ST. LOUIS-SAN FRANCISCO R. CO.
No. 25493
Supreme Court of Missouri, Division No. 1.
September 16, 1927.

[298 S.W. 796]

Appeal from Circuit Court, St. Louis County; John W. McElhinny, Judge.

Action by Bertha Toeneboehn against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. T. Miller, A. P. Stewart, and A. E. L. Gardner, all of St. Louis, for appellant.

Wilson & Trueblood, of St. Louis, for respondent.

LINDSAY, C.


This cause is now being considered upon the rehearing granted by this court. The plaintiff is the widow of Charles J. Toeneboehn, deceased, who was killed on July 16, 1922, when an automobile truck driven by him was struck by the engine of one of defendant's passenger trains, at the crossing of defendant's track and Vermont avenue, a public highway in St. Louis county, not far distant from the limits of the city of St. Louis.

The plaintiff had a verdict and judgment for $8,400. Vermont avenue runs north and south, and the deceased was driving northward. Defendant's track approaches and crosses Vermont avenue from southeast to northwest, and the train was running from southeast to northwest. The track approaches the crossing at an acute angle. The inner angle of the intersection of Vermont avenue and defendant's track is only a little more than 28 degrees. The crossing is in a cut, and in approaching it from the south, on Vermont avenue, there is a descending grade, and defendant's track approaches from the southeast upon a descending grade. There is an embankment along the southwest side of defendant's

298 S.W. 797

track on the east side of Vermont avenue, and near the crossing, and, at the time of the occurrence there was a growth of grass and weeds upon the embankment, and there was a mile post sign on the south west side. A more particular description of the physical surroundings will be given later.

Vermont avenue extends northward from the village of Afton, or from Gravois road, in St. Louis county, to an intersection with a road known as Heege road, at a point 400 or 500 feet north of this crossing. Afton is upon the line of defendant's road, that being the name of the post office, but the station at that place is known as Gravois Station. It is a little more than a mile south, or slightly southeast, from the crossing in question.

The petition alleged that what was known as Gravois road, running into the city of St. Louis, was part of a state highway, and that at and prior to the time in question Gravois road was under construction, and vehicular traffic into and out of the city detoured upon Vermont avenue and Heege street. The community was populous, and there was testimony that 500 or 600 vehicles passed daily over the Vermont avenue crossing.

The petition charged negligence in seven particulars; but in the plaintiff's instruction submitting the case and authorizing a recovery three acts of negligence were specified: (1) Operating the train at a greater rate of speed than was reasonable, having regard to the time, place, and circumstances, and the conditions existing at the crossing; (2) failure to give the statutory signal by bell or whistle, and (3) failure to keep and maintain a watchman, flagman, alarm bell, or other warning device at said crossing. The evidence shows that the train in question was a through passenger train running from Memphis to St. Louis, and was 35 or 40 minutes late, and was running at a speed of 35 or 40 miles an hour; that defendant did not maintain a watchman, flagman, alarm bell, or other warning device at said crossing. The evidence as to the giving of the statutory warning signal by bell, or whistle, is somewhat conflicting, but defendants had much evidence tending to show that the statutory signals were given. The answer, after a general denial, pleaded contributory negligence on the part of the deceased in running his automobile in front of and so close to the locomotive and train that the train could not be stopped in time to avoid striking him; attempting to cross without looking or listening and when he saw, or by the exercise of ordinary care could have seen, the train in time to have avoided injury; attempting to cross without stopping to look or listen, when by so doing he could have discovered the approach of the train; and driving his automobile at an excessive, unlawful, and dangerous rate of speed in approaching the track, when he knew, or by the exercise of ordinary care could have known, that a train might pass on said track at moment. The reply was a general denial.

There was no issue in the case under the humanitarian rule. Defendant complains of the instructions given for plaintiff; but the first and paramount question arises upon the assignment that the trial court erred in refusing to give the peremptory instruction offered by the defendant at the close of plaintiff's case, and at the close of the whole case.

It is contended for defendant that there was no evidence authorizing submission to the jury of the question whether the speed of the train was unreasonable or negligent, and that plaintiff's instruction 2 was erroneous, in submitting that question. Otherwise, there is little effort to show there was no substantial evidence of primary negligence on the part of defendant; but the claim emphasized is that deceased was guilty of contributory negligence as a matter of law. The issue made calls for a consideration of the evidence as to the circumstances under which the deceased lost his life.

Charles J. Toeneboehn lived about one mile from the crossing in question, and had ridden over it many times and was familiar with the surroundings. He was 48 years of age and was a contractor and builder and upon this occasion he was on his way into the city of St. Louis, where he was engaged in building construction. He was unaccompanied, and drove a Dorris motor truck, which he had owned and driven for a number of years. The truck was described as a right-hand drive machine. It had what was spoken of as an express top. The time was a little before 8 o'clock in the forenoon. The plaintiff called no witness who saw the collision between the truck and the train. The only witnesses who claimed to see the truck immediately before it went upon the track, called by defendant, were the fireman, and another employee of defendant, who was a passenger, and testified that he sat in the chair car on the southwest side of the train.

The testimony as to the physical conditions existing at and near the crossing require attention. The plaintiff called as a witness a civil engineer, who testified that shortly before the trial he had made a survey of the crossing and its surroundings. He testified that from the crossing, southeast, the track was straight for a long distance, and he determined that the inner angle of the intersection of Vermont avenue and the defendant's track was a little more than 28 degrees. He determined the rise in the grade of Vermont avenue, starting from the crossing and going south. He said that in the first 50 feet there was a rise of .9 of a foot; in the next 50 feet a rise of 2.4 feet, and a rise of 2.5 feet from the 100-foot point to the 150-foot point south of the intersection; that in the next 50 feet, going south, there was a rise of 2 feet in the grade, and in the next 50 feet going south a further rise of 1.4 feet;

298 S.W. 798

thence there Is a slight, continuous rise for about 450 or 500 feet. There was thus a fall of 3 feet and 4 inches in the 100 feet next to the crossing. According to his testimony, there was a hill in the acute angle of the intersection between Vermont avenue and defendant's track. This hill or ridge is higher in the center than it is at the line of defendant's right of way, or at the east line of Vermont avenue. It thus slopes downward toward the defendant's track, and toward Vermont avenue, but, as we understand the testimony, the slope toward the railroad is more abrupt. He testified as to the height of the embankment on the southwest side of defendant's track, going southeast on defendant's track from the intersection. He said:

"South of the intersection the top of the embankment is 6.5 feet higher than the rails; at 150 feet it is about 5.9 feet higher; at 200 feet it is 6.5 feet; at 250 feet it is 6.4 feet—that is, the edge of the cut just west of the tracks."

He said:

"The high point westwardly is between the cut and Vermont avenue, at 150 feet; that is, 12.5 feet higher. At 200 feet south it is 11.5 feet higher. At 250 feet it is about 12 feet higher. At 300 feet it slopes out practically the same height as it is at the edge of the cut along the railroad track on the west side of the railroad. At 300 feet the top of the embankment is 6.4 feet higher than the top of the rail. At 350 feet it is 6 feet higher; at 400 feet it is 5 feet higher; at 450 feet it is 2.8 feet higher; at 500 feet it rims out."

He testified that the hill, or ridge, is nearer the railroad track than Vermont avenue. As to the visibility of the railroad track to one going north on Vermont avenue toward the intersection: He testified that from a point about 500 or 600 feet south of the railroad track, going northward on Vermont, the tracks are visible there, and said they were visible until you get within about 250 feet of the intersection. He added:

"There you lose the view of it, that is, looking toward the north, the way you are traveling. If you turn and look to the south, of course, you can see it through that low swale, a considerable distance south."

He testified that at a point 75 feet south from the intersection of Vermont avenue and the railroad track the track was visible, looking at right angles to Vermont avenue; that from a point 75 feet south of the intersection the track at the point due east was about 40 or 41 feet from Vermont avenue. He further testified:

That a man "sitting in an automobile on...

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59 practice notes
  • Perkins v. Kansas City Southern Ry. Co., No. 29380.
    • United States
    • United States State Supreme Court of Missouri
    • April 2, 1932
    ...at an excessive rate of speed over such a crossing. Ward v. Ry., 311 Mo. 92, 277 S.W. 908; Toeneboehn v. Frisco Ry. Co., 317 Mo. 1110, 298 S.W. 795; Montague v. Mo. & Kan. Interurban Ry. Co., 305 Mo. 269, 264 S.W. 813. (b) It takes a strong case to convict the dead of contributory negligenc......
  • Dobson v. St. L.-S.F. Ry. Co., No. 4321.
    • United States
    • Court of Appeal of Missouri (US)
    • September 28, 1928
    ...evidence was sufficient to convict deceased of contributory negligence as a matter of law. [Toeneboehn v. St. Louis-San Francisco Ry. Co., 298 S.W. 795.] We think the nearness of these three tracks to each other and the fact that deceased stopped his car at a point very close to the limit h......
  • Thompson v. City of Lamar, No. 27292.
    • United States
    • United States State Supreme Court of Missouri
    • March 29, 1929
    ...Thompson v. Frisco Ry., 270 Mo. 87; Riley v. Independence, 258 Mo. 671; Morrow v. Mo. G. & E. Co., 315 Mo. 367; Toeneboehn v. Frisco Ry., 298 S.W. 795. (10) Instructions are to be read and considered as a whole and as a single charge, and error cannot be predicated upon the segregated or is......
  • Homan v. Mo. Pac. Railroad Co., No. 30117½.
    • United States
    • United States State Supreme Court of Missouri
    • November 7, 1933
    ...Becke v. Mo. Pac. Railroad Co., 102 Mo. 544, 9 L.R.A. 57, 13 S.W. 1053; Toeneboehn v. St. Louis-San Francisco Railroad Co., 317 Mo. 1096, 298 S.W. 795.] But where a much traveled railroad crossing is, for any reason particularly dangerous, it is a question for the jury whether the care whic......
  • Request a trial to view additional results
59 cases
  • Perkins v. Kansas City Southern Ry. Co., No. 29380.
    • United States
    • United States State Supreme Court of Missouri
    • April 2, 1932
    ...at an excessive rate of speed over such a crossing. Ward v. Ry., 311 Mo. 92, 277 S.W. 908; Toeneboehn v. Frisco Ry. Co., 317 Mo. 1110, 298 S.W. 795; Montague v. Mo. & Kan. Interurban Ry. Co., 305 Mo. 269, 264 S.W. 813. (b) It takes a strong case to convict the dead of contributory negligenc......
  • Dobson v. St. L.-S.F. Ry. Co., No. 4321.
    • United States
    • Court of Appeal of Missouri (US)
    • September 28, 1928
    ...evidence was sufficient to convict deceased of contributory negligence as a matter of law. [Toeneboehn v. St. Louis-San Francisco Ry. Co., 298 S.W. 795.] We think the nearness of these three tracks to each other and the fact that deceased stopped his car at a point very close to the limit h......
  • Thompson v. City of Lamar, No. 27292.
    • United States
    • United States State Supreme Court of Missouri
    • March 29, 1929
    ...Thompson v. Frisco Ry., 270 Mo. 87; Riley v. Independence, 258 Mo. 671; Morrow v. Mo. G. & E. Co., 315 Mo. 367; Toeneboehn v. Frisco Ry., 298 S.W. 795. (10) Instructions are to be read and considered as a whole and as a single charge, and error cannot be predicated upon the segregated or is......
  • Homan v. Mo. Pac. Railroad Co., No. 30117½.
    • United States
    • United States State Supreme Court of Missouri
    • November 7, 1933
    ...Becke v. Mo. Pac. Railroad Co., 102 Mo. 544, 9 L.R.A. 57, 13 S.W. 1053; Toeneboehn v. St. Louis-San Francisco Railroad Co., 317 Mo. 1096, 298 S.W. 795.] But where a much traveled railroad crossing is, for any reason particularly dangerous, it is a question for the jury whether the care whic......
  • Request a trial to view additional results

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