112 '., I
FE,l),ERAL
vol. 50.
as defendants in this action. Thee:itception to the news:paperarticle is therefore maintained. The exception of misjoinder is overruled, and the defendants have 10 days in which to answer the . plaintiff's petition.
as
LAPSLEY
v.
UNION PAC.
R.
CO.
(Oircuit Court, N. D. Iowa. Ootober 10, 189L) 1.
A(lOIJ)lIINTS AT RAILWAY CII088INGs-RINGING BELl"
2.S:urn:....:RATE OF SPEED AT CROSSD1G.
Thol'e
3:
SAME-FLAGMAN ANn GATlIIS AT CROSSINGS.
.Tl1e question of .whetherthe railroad company should have flagmen or gates at orossillgs, ill the absence of statutes, depends likewise on the circumstances, such as bheamount of travel over the orossing, the obstructions, etc., and is a matter of faotto be determined by the jury·
.. SAME-IMPUTED NEGLIGEN01ll·.
,"
Where a woman is riding on the baok seat of a two·seated spring wagon, which is driven by her brother, who owns the team and wagon, and over which she has no control, and she is injured in a oollision at a crossing by a railway train, if the .negligence of the brother in driving upon the crossing contributes to said injury, hoeld, that said contributory negligence cannot, as a matter of law, be imputed to her.
At La,w. Action by James J. Lapsley,administrator of the estate of Eliza J. Lapsley, against the Union Pacific Railroad Company, to recover damages for causing the death of his intestate. Verdict and judgment for plaintiff in the sum of $1,000. · A. S. S. H. Marsh, for plaintiff. Wright H'/!-bbard and W1'i,qht Baldwin, for defendant·
«
is
District Judge, (charging jury.) In this case the plaintiff, administrator of the estate of Eliza J. Lapsley, eeeks· to recover agaiJ?st tbedefendant company for the amount of damages it is claimed was caul?edto the estate of Eliza J. Lapslp,y by reason of the fact that iIi November a year ago Miss Lapsley was killed by an accident happe.ning 'j:ipon the track of the defendant company. In order to entitle the plaintiff to recover under circumstances of this kind, it is not suffioient simply to show that an accident has happened, and that in]1;1ry or.de;ttb has resulted the acddent beinl?; caused by a GPllisioJ? ,,,ith the train of the defendant upon the road of the defendant The burden is upon the plaintiff of going further, and showing, .tn the first instance, by a .fair preponderance of the credible testitpopfiri the case, that the accident was. caused .by negligence upon the .Of ,the railway company. . 'other; words, this action is one that is In ",_, '.·· ' · J.I <" . .· SHIRAS,
L£PsLEY". UNIONPAc;R. CO.
173
based on the charge of negligence, and the burden is upon the plaintiff of establishing it in the first instance. In this case there are three allegations of negligence made against the defendant company. Before passing to dIem, however, I will say, gentlemen, that the main facts in the matter are not in dispute between the parties. The evidence shows without contradiction that in November a year ago Miss Lapsley was in a wagon, being driven alQng the line of Leech street in this city, and that that street intersects or crosses the line of the defendant company; that while the wagon was being driven over the track of the defendant company it was struck by a train belonging to the defendant company, and that Miss Lapsley was thrown out, and received injuries which caused her immediate death. It is charged in the petition that the defendant company was guilty of negligence in three particulars. In the first place, it is said that there was no proper signal given of the approach of the train. Now, gentlemen, before passing to the particular facts, I should say to you that under the law of Iowa railroad companies have the right to place their tracks and run their trains upon a level with other highways; in other words, under the law of Iowa, a railway track and public highway, like a street in the city. may be legally placed upon the same grada and intersect each other; so that as a necessary consequence it follows in passing trains along the track of the railway company and persons driving vehicles along the street, where the street and railway track intersect each other upon the Same level, there will be therefore necessarily danger of collision unless proper care is exercised by both parties to prevent a collision at any gi\'en time. Therefore, under this law, the railroad company had a right to· have its track where it was, and to run its trains over and along that track. Also, the public had a right to pass over Leech street,..,-to drive vehicles over the samej but by reason of the fact that there would be danger of a collision unless proper care is exercised on the part of both the railway company and the persons using the street or highway. the law imposes upon both parties the duty and obligation of using and exercising proper care,-suchcare asa reasonable and prudent man should exercise in view of the circumstances that surround them at the time that either or both parties purpose to make use of the legal right that they have,-on the part. of the railway company of running its train on its line of track over the highway, and on the part of the citizens of passing over the street across the track of the railway company, when they know that there i!? a liability or a possibility of trains coming along that track. Now, the amount of care or duty that is required by the law is the same as to both. The same rule is applied to both the railway company and to theindividualcitizenj and that is. as I have al;. ready said, the duty of exercisiug the amount of care and caution and skill· that ordinarily prudent men should. exercise in view of the circumstances that surround them at the particular time. Furthermore, it is a principle of In'" that w!Jen human life or limb may be put at risk or danger the care lUlLl eautionand the skill that should be exercised is higher or greate;' than under circumstances where human life and limb may not be pnt at risk ordangl'lr.
a
As I have before stated to you 1 the, plaintiff makes in thi8 three charges of negligence.against the defendant company in the rUllning and management of its train at this particular thne when theaccideni happened. The first is that no proper signal waS given of the approach of the train. Thestatote of Iowa requires that, 'When approaching a crossing where a highw.$yJntersects :orOtOljses a railway track, it is the duty ofthe company to cause the whistle upon the engine to be sounded by two sharp blasts of the whistle, and that the bell must be rung continqously from that time, and from that point, to wit. 60 rods from the until the erQssing is reached, with a proviso that in the case of cities the blowing of the whistle may not be required. In other words, the railway comIJanieS, in case of cities, where they are within the limHs of may be giving the signal by the blast of the whistle. Therefore, ,so far as this case is concerned, as the evidence shows and it is admitted that this accident happened within the limits of the city of Sioux City, the question, so far as statutory obligation is dowIl to the ringing of the bell. Therefore I charge YOl1;,that the law is, under the statute of Iowa, that the duty and oblirests upon the railway company of giving a signal when a train appl''(lllches within 60 rods of a street or highway crossing by the ringing aHhe engine bell, and the ringing should be continued, under the statute.. from that point up to the time that the locomotive may reach the crossing or highway. Now, it is charged by the plaintiff that this signal was Dot given, and that, as a consequence thereof, the plaintiff and the person who was injured failed to receive notice of the approach of the train,and thereby the accident happened that caused the death of Miss Lapsley. Of course, as you understand, gentlemen, the purpose and object of requiring a signal of anyol\ture to be given when a train is approaching a crossing or highway is that thereby warning may he given to the. parties who are about to pass O\'er the railroad track of the approach ofthetr8.in, so that they,oo part, may be warned of the approach of the train, and exercise due care for their own protection. Now, gentlemen, it is a question of factto be determined by you, under the evidence in this case, whether or no this train which struck the wagon, and which ctlused, in that sense, the death of Miss Lapsley,'whether or not, as that train approached:this crossing or intersection of Leech street, the bell wRarung in accordance with the requirements of the statute, and in such manner as to accomplish the purpose of its requirement. The eviden 00 is in conflict upon that subject, and it is for you to determine whllt the fact is. All I can.say to you is that the statute of Iowa requirestbat notice be given by the ringing of the bell. If the evidcnc.esatisfies you that the bell was rung, then negligence in that particular is not shown against the defendant company. On the other ha,I),d, if, the satisfies you by a fair and reasonable preponderance that th, \:leU,was 110t rung"then thatjustifies you in finding that in that tberailroad company, through its failure to observe this requirement, was guilty of,oegligence j and, if that contributed to or aided in causing the accident, that justifies you in finding that the
1JU'SLET1J. ·tmroN 'PAC. B. 00·
175
.ohatgeof negligence in ' this particular is made out against the' railway company. It is for you to decide what the facts in that particular are. The next charge of negligence is that the train was run at a high and unnecessary rate of speed. Now, gentlemen, there is no law in this state thattixes the rate of. speed-that is, the number of miles' per hour-tbat a train may run under the circumstanCes' surrounding .this transaction. The. rule, therefore, to be applied is the rule-the common;' law rule that the duty and obligation rests at all tiDies upon the railroad company to use proper care--4>rdinarycare and prudence-in the running and management of its trains, so that no unnecessary risk or hazard ahall be callt upon the public. So you see, therefore" that the question 88 to the rate of speed, whether it is negligence to run a train at a given rate of speed, depends upon the facts ·and circumstances surrounding has been said by counsel, when a train is running out upon the open prairie,-in the opencountry,-wherethere is not much liability ·to meet people crossing a traok, and other sufficient signals are given, the cars maybe run at a high and rapid rate;· and there is no law that would require them to check the rate ofspeed when they are approaching the crossing, if the circumstances and surroundings of that crossing are auah that, with the signals that they have given, reasonable warning of the approach of the train is given to the public. You see that is the test. The uain must be run at such rate of speed, and accompanied by such signals, 88 that, as they approach these crossings or highways, a reasonable warning may be given to the public in order that any person desiring .to cross mllY receive ,reasonable warning of the approach of the train, and be able t() take proper care for his own safety. When trains are run into a city or ,place wherethere is a large amount of travelthat may be expected to croBS the railroad track at agiven point, at the intersection of a then the speed at which the train may be rightfully run there depends, as you see, on the circumstances that surround that particular crossing. Now, in determining that, you must take into account the surroundings of the crossing, the ()pportunities that parties may have who are coming down upon the street for the purpose of crossing the railroad track of observing and seeing trains. If there are no 01>s.trpctions in the way, no Q1,lUdings about the comers, 80 that persons driving along the street or highway have a full opportunity of seeing the trains as they come in either direction for quite ,a distance, and in that way, by the use of reasonable care on their part, may receive war:ning ,of the approach of trains, why then, in the exercise of ordinary care, the railroad company wQuld be justified in running its trains at a more rapid rate of speed than it would be if the crossing was not so situated. Now, if you have a case in which, by reason of buildings or other natural obstruqtions, like trees or embankments, or the shape of the ground from a cut or embankment, or whatever it may pe, the fact is that persons driving down along the highway thei!,' view obstl'ucted, and they would be unable, 'by reasonof th8¥ob!ltructions, to see the caraat any distance, then the railroad company must run its trains &ijd the speed of trains
176
"DERAL
voL 50.
withreferimce to those facts; the test being always, as I said, that the mnning and management of the train must be with reference to this role, that 'no unnecessary risk or hazard must be thrown upon the pub. lic who a're there rightfully in the Use of the highway. The public have a right to be on the highway; the railroad company has a right to run its trains upon its track; but both of them must use this right that they have with reference, you see, to the duty which it owes to the other party. Thereforethe duty aildobligation upon the railroad company is to run its train at such rate of speeq as willnotca8t any unnecessary risk or hazard upon those who are using the highway. Therefore, with reference to the speed of the train, it -is for yon to determine under the evidence whether or no that eharge:ofnllgligence is or is not made out, the burden being on the plaintiff. Does. the evidence satisfy you that the train was running at· tms :partieular place at such rate oj: speed' as that, taking into account the 'signals that were:in fact givenana:intended to be given by the panYI and provided for,--was thtnate of speed at which that train was run -of ,such character as to thereby: bast unnecessary risk and hazard in the use and occupancy of the street· or u pont tqe' persons high.way-iat the crossing? .If the evidence satisfies you that the train was ran,nta'speed that cast this unneMssary risk and hazard upon those using the highway rightfully, that justifies you in finding that who in this:pa.rticular the rAilroad company was negligent, and, if tbat negligence aided or caused the accident, it would justify you in that regard in finding ,that issue in favor 'of the plaintiff. Of course, if the eviyou of thatfact,as I have said, the burden being ohtheplaintiff, then on that issue your verdict would be for the defendant, -or your lindingwould 'be for the defendant upon that issue. The third charge of negligence contained in the petition is that there was no-flagman or other means of warning placed at this intersection·()fiLeech street with the line or track of the defendant company. Now, there :are circumstances that may surround railroad companies, such llstheamount of business, the amount of travel over the street, the obstructions that surround the intersection of the street or the highway, that may require of the railroad company, not alone the giving of signals by the ;ringing of the bell or the sounding of the whistle or means of tbat kind, but may also require of them, in the exercise of proper Mfe and prudence upon the part of the railway company, the placing of flagmen'8.t the cros!lings, or the placing of gates. or some, means by which the public will be warned Of, the approach of the train: by signals that are given: either by flagmen or the lowering or raising of gates, so that theper80ns who come down and along the highway are warned thereby that there is danger by reason of the coming of a train. The law does not define the way that should be done, excepting under the same general rule that I have already given you. The duty and obligation,Qs I have. already said, is upon the railway company to take all .reasonable care and prudence to so manage the running of its train, including the care ofctossings,-the protection in that sense of thecrossings,-as tbat the cars and trains may be passed over the
.e
LAPSLEY V. UNION PAC.B. CO.
177
highway without casting any unnecessary risk or hazard upon the people who use the crossing. Now, then, if the surroundings of the crossing are of such a nature, the obstructions about it are of such a nature,' and the aDlount of travel upon the highway is of such a nature, as that in the exercise of this duty, which the railroad company owes to the public, of the exercise of ordinary care for the protection of the public against danger from the passage of trains, as to require the placing of flagmen, or the placing of gates, or other like means of warning; if the evidence satisfies the jury that that was required of the railway company, and it was 110t done,-then that justifies the finding that in that particular the railway company had failed to exercise the degree of care which the law required of them, and of course justifies the finding of a verdict of negligence in that particular. Of course, before you can find that. you must be satisfied from the evidence that the facts and circumstances surrounding the parties at the place were such as to require of the railway company the exercise of this degree of care for the protection of the public upon the highway. Now, gentlemen, in deciding all questions of this kind you must remember that you are to place yourselves as near as may be in the. positionthat the parties occupied just prior to the happening of the accident. It is a familiar and. common saying that hindsight is better than fore.!lighLIt'is not that we can look back and, in the light that is now thrown upon the transaction,. say that now, looking at it in view of the accident as it happened, that; if thus and flO had been done, or this and that had not been done, the accident would not have happened. That is not a fair way of viewing the position of the parties. The question is, taking the position of the parties and the situation rJf affairs as it was just prior to the accident, as the matters ,then stood, what was then and there required of the parties.in the exercise of ordinary care and prudence? Now, then, looking at that crossing before this accident happened, we will sayan the morning of that day, -looking at that crossing, its nature, its character, and the obstructions that were round about it, whatever they may have been, taking into account the speed at which the railway company expected to run its trains over that crossing, taking into account all of those circumstances,-it is for you to say then whether, as the company then stood, and as the circumstances then appeared, the company did or did not proper care and prudence on its part, whether it. required the placing of flagmen or the placing of gates or any other means of warning at this crossing. These remarks that I have made apply to these other questions of negligence. Weare to look at it as it would appear to reasonably fair and prudent men immediately prior to the time of the happening of the accident. If the evidence has failed to satisfy you that the defendant was guilty of negligence in any of the three particulars that I have named before you, that ends the case. Then the plaintiff bas failed to make out the charge of negligence against the railroad company; and, that being the case, then your verdict must be for the defendant. If, however, under the evidence. ;you find that the defendant,under the instructions that I have given you,was guilt.)' of v.50F.no.2-12
178
FEDERAL. REPORTER,
negligeqee in anyone or more of the.threeparticulars that! have named by reason thereof the accident was caused which re8ulted?iD'lthedeath of Miss Lapsley, then, so far as :this 'question of the negllgeneeof the defendant is concerned, your finding would be for the plaintifl\::and you would be required to determine thequestiollS that arise. pSilder the defense of contributory negligence. Nowdt isa principle of law that where the negligence of both parties produce the accident,· then neither one can recover as against the other. The law does not attempt to separa.te out the consequences of the negligence of the one party, as distinguished from the negligence of. the other. If the negligence of both parties contribute to or aid, as theptoximate,canse or causes in the producing of the accident, then neither ODecan.recoverfrom the other; and this is what is known in law as the defense of contributory negligence; As I have said to yoil, gentlemen, the law placesupon the party-the citizen, the individual.,..-who is about to use · 'highway or street which crosses over a railway track the duty of using due care, ordinary prudence, foresight, and cantion for his own protection; . Aperson is not jlistified,when he is approaching a railwa.y crossing" in simply driving O\'er it without taking any precautions at all to see whether there is a train' approaching. It is his duty to know and he is .bound' to know that there maybe trains coming down upon that track. As you drive down along a street or highway, and you see that there is a ,railroad track laid down .across that street or highway, as you approach it; your own common sense tells you that· may be a place of danger. You know the purposes for which those rails are laid there. It is intended that.trains should pass overthem l and you know that railroad trains are rpn at a very considerable rate of speed, and in many instances at a high "rate 01 speed, and that they may rightfully run, under proper circumstances, ata high rate of speed. You know that trains are composed of many cars; that they arei very weighty; that it is impossible, in the nature of things, to always stop a train .promptly;and that, therefore, as you approach that crossing, if there is a train coming upon the track l if you attempt to pass over it you may be subjected to "risk and danger by so doing. Hence the law- places on you, as you approach the crossing, the exercise of due care andca.ution for your own protection; just as, in the case oCa railr6ad company, what a party should do as he approaches one of these crossings would depend "on the surrounding.cil:cumstances. If you are driving in an open country, and the railroad track is in sight for a longdist.ance on either side of you, the law expects you to exercise your senses of sight and hearing, and that you will be to see whether or no there is a train approaching, and whether youclln or cannot safely attempt to make the crossing; and you are not justified in attempting to make the crossing if the train is approaching so close as that, if you attempt to make that crossing, you will thereby runthecrisk or danger of injury. Now, then, when a crossI may. say, however, further, as you approach a ing railroad track in an open country, and you have full opportunity of seeing the tracks for quite distance, and if you fairly use your senses of
LAPSLEY t1. UNION PAC. B. CO.
179
sight Q.ndhearing,.the law places no obligation upon you unnecessarily to stop. If you cap fairly see the track, and use fair caution and prudence for your own protection without stopping your horses, you are not obliged to do that. So, when you approach a crossing in the city or the town, the question whether you should or should not be required to stop your horses before you get upon the track depends upon the facts and circumstances that surround you at the time. You have a right to use the highway. You have a right to pass over the crossing. You have a right to assume that the railroad company on its part will give all neeeiJsaryand usual signals and warnings of the approach of the train. You have a right to go towards the track expecting that those signals and warnings will be given. Then, taking into account all of the circumstances that surround the particular crossing, the law requires you now to use that amount of caution and· skill and prudence for your own protection that ordinarily prudent men should exercise under like circumstances. If there are obstructions in the way of surh character as that they prevent your seeing the track as you come close up to it,that it is impossible by the use of your sight to ascertain whether or no in fact a train is or is not approaching,-does not then common prudence upon your part require you to approach that track more carefully, being more upon your guard in that particular, than if you were dri down upon a track in an open country, where your sight is unobstructed, and where you can see a long distance, and be satisfied in that way that there is in fact TiO train approaching close to you? If, however, the obstructions are of such a nature that quite a distance before you reach the track you cannot see a train, what assurance have you, as you approach the track, that a train may not be coming there? The law does not say absolutely that you should stop your horses, or that you shoul<) not stop your horses. It says that yOll must do whatever ordinarily prudent men should do under the circumstances that surround you at that time, in order that you may fairly ascertain whether, in the exercil:ie of reasonable care upon your part, you can pass upon that track in safety. The law imposes upon you the duty of using the saUle degree of care that the railroad company is expected to exercise for your own protection; and if you fail in doing that, and drive upon the track, and you are injured, and your n(;1gligence in that way contributed to your injury, you cannot recover from the railroad company, even though the railroad company .may be negligent in the management of its train. Then we would have a case where the negligence of the two parties contributed to produce the accident, and, 8S I have said, in that case neither party can recover from the other. . Now.: gentlemen, the evidence in this case shows that the deceased, MiSE! Lapsley, was in a wagon. driven by her brother, and that there was one or two other members of the family in the wagon. The evidence has showny,ou the facts and circumstances as to how they came to be there; bow they passed down on Leech street, and drove. towards this crossing,. and, as the horses and wagon passed over and upon that track, that by a train or locomotive upon the defenuaut's railwaYi
'FEDERAL· REPORTER,
vol. 50;
that Miss Lapsley was thrown out of the wagon, and received the injuries that caused her death. There is no dispute over those facts. The question is, onthisdefehse of contributory negligence, whether or no proper care and prudence was or was not exercised in the manner in which that wagon approached that crossing. You have had before you, gentlemen, the evidence that shows what the circumstances were. Now, the first question for you to determine under the evidence is whether or no the parties who were in charge of that wagon approached that crossing using due and proper care,-that amount of care and prudence which the facts and circumstances that surrounded them at the time requIred at their hands. The whole evidence is before you. The rule of law is that persons are required to use ordinary prudence-ordinary care---'for their own protection, and that one is not justified in driving down recklessly or carelessly without exercising a lookout, to use the senses of sight and hearing to the best ability that the circumstan,ces surrounding will permit at the time. He must do that, and, it' he 'fails in doing that, he is guilty of negligence. Now, then, what do you say under the faCts as developed by the evidence in this case? Was or was not due care and prudence exercised in the mode in which that wagon w'as driven down to arid across the track of the defendant company? If it 'wae,-if dUe care was exercised,-why then the defehsedfcontributorynegligence is not made out; the burden of establis,hihg it being upon the defendant. If the evidenuefails, therefore; to- satisfy you that due care,-or, rather, if this defense is not sustained by-a fair and reasonable preponderance of the testinlony, the burden beiogon the defense, then the defense of contributory negligence jails.' That is, I mean to say if, under the evidence in this case, you are not fairly satisfied that there was a lack of the exercise of proper care and prudence and foresight on the part of those having charge of that wagon,' why, then, you cannot say that this charge of negligence is made out in the mode in which the wagon approached this crossing and passed in front of the train.' If there was no negligence, then in that there was no'contributory negligence, and there is no defense then to the claim of the plaintiff, providing you find the other issues for the plaintiff. If, however, gentlemen, you are satisfied that in the mode in which the this crossing, and in front of the train upon wagon was driven down the defendant's road, there was negligence; that the parties in the management Of that wagon did not use due care; that, failing to exercise the care' and skill and foresight that the law imposes upon them, the wagon was carelessly or recklessly driven upon that track when that train was approaching, and under such circumstances as that it would beappareht tbatthere was danger of accident,-then the questionariseswhether or no the deceased is or is not to be held liable for the consequences of that negligence. Some discussion has been had in this case in regard to the negli:gencl:lori: the part of the driver, ahd the relation 'that be maintained to the deceased. . The uncontradicted evidence in the caseshowfl that· the' >wagon was driven by the brother, and upon .the part of
to
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181
the defendant cOTDpany it is claimed that the negligence of the brother is, as a.matter oflaw, to be imputed to the deceased. Now, there are certain circumstances, gentlemen, in which as a matter oflaw the negligence of a driver of a carriage in that way may be imputed to another person who occupies the vehicle with him; as, for instance, a fatper is driving, and has a child in the carriage, or a husband is driving, and has his wife there with him, or a guardian is driving with a ward that he has under his care. The relations that exist between the parent and child, and husband and wife, or guardian and ward are such that the law may impute as a matter of law the negligence of the father or husband or guardian to the wife or the child or the ward, because there is a relation there existing where the one controls the other, and where ordinarily, in the ordinary affairs of life, we recognize the fact that the one trusts tbe other, and relies upon the otber for protection; that is, a husband exercises protection, and the wife looks to the husband for protection. So in the case of the child with the parent, and so in case of the ward with thegual'dian. Again, there may be the relation of master and servant, or principal and agent, which may exist under such circumstances as that the negligence of the driver would be imputed to the master. For instance, you own a team. It is yours. You have a man thal is your driver. You are going out with him, driving along the highway. He is under your control. He is bound to obq your directions that you give him. You have the right of control and the power of control over him. You approach a crossing, and he is driving, and you are in a position where you can supervise and control him. Now,then, if you allow him to drive negligently and recklessly down without stopping, if that would be required, or upon the railroad without exercising proper care, why, then, the negligence of that driver is imputed to you, because he is your servant, because he is under your ·control and under your management, and you have opportunity of cantrolling and managing him. Under those circumstances and in that ·case the law would impute to the master the n"egligenee of the servant, and if an accident happened, and the master is injured, he cannot recover. There maybe other. circumstances, gentlemen of' the jury, in which it becomes a question of fact to determine whether a party is or is not to be held liable for the negligence of another one who accompanies him. If there are a number of us together in a common enterprise, and we are in a carriage or wagon, and one is holding the reins and driving, and the olhers have the right ofcontrol over him, and in fact exercise it over him, although this relation of husband or parent or guardian or of master and principal may not in fact obtain as a matter of law, yet, if the relation is such that a person does in fact have the right of control, and ,does in lact exercise the right of control, then a jury would be justified in finding that the negligence of the driver would beimputed tothe other, but would not be justified In imputing it with<mt the parties in the par. tiCular instance did in fact exercise this right of control under such cir-cuil1stances as that it wouldjustify you in finding that the driver was
.182
FEDERAL llE1'OBTEB,
under the other party. Now, take the facts of this case. The relation here was that of brother and sister; ·Theevidence show!! that who was killed was older than the brother. They were both of mature age. The evidence shows that the sister was accustomed to manage affairs for herself; that to a greater or less extent she was in the control or management of her father's farm or business before his death, and after that she was appointed administmtrix of his estate. Now, under those circumstances, is there anything to show that the brother exercised over her a control, OJ' owed her a duty of protection and care, such as a husband would ordinarily exercise over a wife, or a parent over a child? It seems to me, gentlemen, that there is nothing in the case that will justify you in finding that-there is nothing here that would tend to show that-simply the relationship of brother and sister-nothinF; under these circumstances that would justify you in finding that the brother.controlled the actions of the sister, or the sister the actions of the brother, in such sense as that the negligence ofthe one would be imputed to the other as a matter oflaw. Now, then, what is the fact? It may be that this sister did exercise a control over the management of the wagon. If the evidence satisfies you, in the driving of the wagon and in the carrying out of the business in which they were that Miss Lapsley did exercise control over the management alit, then, of course, that would justify you in finding that if there was negligence in. the ment Qfthe wagon, and she in fact exercised a control over it in that sense, and there wasnegligence.upon the part of the driver, that would justify you in finding as a matter of law that the negligence of the brother was to be imputed to the sister; but you must be satisfied from the eVIdence in the case that it was an actual control upon her part; that she stood in such position that she could and did in fact exerci!le a control and managernentand direction over it, so that you can say from all of the evidence in the case that she exercised a control over the mode in which that wagon was driven down to the crossing, in order to impute to her the of her brother: If you find that the brother was negligent in the mode in which he drove that wagon upon that trl1ck, so that, if he had been injured, and he brought a suit to recover damages, he would be defeated by reason of his contributory negligence, then that negligence upon his part will defeat the right of recovery in this case, providing you find. that the sister, Miss Lapsley, who was killed, exera over the. management and driving of the wagon in such Bense th!lt she should be held responsible for what in fact the brother did; but, unless that actual control existed, then you would not be justified in finding that you could impute to her the negligence of her brother, if you find such negligence did in fact exist.. l If you find, .gentlemen, however, that the circumstances were such IThe are cited {Jul1Pport of the 40ctrine contained in the instl'Uctionsin reference to Imputed negligence: Little v. Hackett, 116 U. S. 866, 6 Sup. Ct. Rep. 891,; Noyes v. Boscawen,'M Nt B.8llt, to At!. Rep. 690; Nesbit v. Town of Garner. 75 Iowa, 814, 89 N. W.Rep.516;Robinson v. Railroad Co., 66 N. Y. 11; Railway Co. v. Creek, (Ind,. E!up:) 29 N.' E. Rep. Cahill v. RaUwa,Y Co., (Ky.) 18 S. W. Rep. 2; Randolpl1 v.ORIOrden, N. Jli. !w.P.588.
LAPSLEY V. UNION PAC. R. CO.
183
that negligence of the brother, is not to be imputed to the sister, if the brother did not represent the sister in driving and in the management of the wagon, and, if she exercised herself no control-no direct control-over the brother, then8he was not freed in law from the duty and obligation that was upon her of exercising for her own protection due care and prudence when she approached that crossing. You see, it will not do to hold that the sister was entirely freed from the exercise of caution and care for her own protectio:n,because the brother was driving the team, and then turn around and hold that she is free from the consequences of that brother's negligence because he drove the teamj that cannot be done. If the sister was therein an independent relation, having no control over the brother, so that his negligence could not be imputed to her, then she simply stands there as any other citizen would, charged by the law with a duty and obligation of exetcising due care for her own protection. Determine the question of contributory negligence upon what she did or may have omitted to do. Now, she being in that wagon, with the opportunities of seeing, according to the testimony, the wagon being an open wagon, being driven down towards that crossing, what did common prudence upon ber part require her to do? She must exercise,-the law says she must use ordinary care and prudence,-exercise her senses of sight and hearing, as to whether or no the train was approaching, for her own protection. She is not justified in driving or perherself to be driven recklessly or carelessly upon that track, and thereby subjecting herself to danger by an approaching train. She must exercise due care and prudence upon her own part for her own protection. If she did do that, and. the accident happened, then the charge of negligenceagainst her is not made out. If she failed to exercise proper care and a proper lookout for herself, and failed to do that, and the accident happened thereby, her own neglect contributing to it, then the defense of contributory negligence would be made out against her, and your verdict would have to be for the defense. You have got to apply these general rules that I have given to you in the exercise of sound common sense, with the facts and circumstances that are developed in thee,vidence. All that the law can do is to give you general rules, and it is for the jury to apply those rules of law with reference to the facts and circum.stances as they are developed in each particular case,-RS those facts and circumstances are brought before you in the evidence in the case. Upon this charge of contributory negligence, as I have said to you, a duty and obligation would be upon this deceased, either through herself or her brother, if she had control over hill) in the management of that wagon, so that he was her reprasentative.in that particular, to exercise due care in the approach to thatcrossingj and, if he was her representative, and she had control over him,so that his negligence could be imputed to her, and he was negligelltdhena recovery cannot be had in this .action. Or, on the other hand, if the relation.and position that the parties occupied to each other was not such as that the negligence of the brother could be imputed to the sister,then the negligence of the brother would not
184
REPORTER,
The right of recovery would 'not be then dedefeat the right of feated, unless you find under the evidence that the sister herself was negligent. As I have said to you,under those circumstances the law charges the sister with the duty of exercising due care for her own protection,and to exercise her senses of hearing and seeing, in view of the circumstances that surrounded her when she was thus being driven towards that crossing. 'If, under the instructions that I have given you, you find that the charges of negligence in anyone of the particulars that 1 have named to you are not made out against the defendant company, or' if,in other; words, you find that there was no negligence upon the pa.rt of the defendant company, then, of course, your verdict will be for: the defendant. If, on the other hand, you find in anyone or more of the particulars that'l have named to you the defendant company was negligent,and that negligence aided or was the proximate cause inpraduoing'the accident, then your verdict would be for the plaintiff, unless: tluidefense of contributory negligence is' established. Bnt if the .defendant was negligent, and the deceased was negligent, or was responsibla for the negligence of hetbrother, and· he was negligent, andtMt negligence aided in causing the accident, then the plaintiff cannot recover, because :the defense of contributory negligence would be established. ' If llpt>n· the· issues you find for the 'plaintiff, your next duty will be to determine the amount of damages. Incases of this kind, gentlemen, the rule is compensation for the pecuniary loss that is caused to the estate of the deceased by the death of the party. You are not entitled, in cases of this 'kind, under the law, to take into account the injury to the feclings of the members of the family or the relatives that are left. The law does not attempt to weigh that;, or give damages therefore. The measure is the pecuniary loss caused to the estate of the deceased party. Now, that is a money loss. Of course, it is im':' possible for testimony to be brought before you to show the exact amount Of that pecun'iarylossj that is to be intrusted to the good Common sense and good judgment of the juryj but that is what you are to allow. The theory is this: that, when a person is killed, then the estate suffers a loss in money,-what the person may accumulate had he continued to live forths probable extent of his lifetime. The Carlyle tables have been admitted! :before you, showing the expectancy of life of the party who was killed,-I believe, Some 22 years, or a little over. Remember, gentlemen\ 'that you are not to assume it as a fact that Miss Lapsley would have lived 22 years, and then figure up What she might have earned in 22 years. and allow that as damages. That is not the rule, because you: know these tables are merely based upon the average expectancy. Notwithstanding her expectancy of life would be 22 years, and although this aceident might not have happened; she might have lived only 'a yearj she might have died from a variety of causes, and she might have lived longer than her expectancy. Therefore, all you can do in a case of this kind is to give weight to the probabilities. You know that the probabilities are that a. person who is young will live
KERLIN '!1. CH!CAGO, P. ,& ST. I.. R. CO.
185
longer than a person who is old. The older we get, the more certain you know we are approaching the time of dissolution, and that is true in a general sense. You take into account, therefore, the age, the health, the strength of the party, and the ability to earn money, as it may be developed in evidence before you, and fix such fair sum that, being now paid. and paid in a lump, and being freed from all the contingencies and uncertainties that inhere in human life, will fairly compensate the estate of the deceased for what the estate has been deprived of in the way of accumulations the party might have made had they lived. You cannot figure that out in a mathematical way. You can only take the reasonable probabilities, and that must be determined by the jury in the exercise of good common sense and judgment on your part. Verdict and judgment for plaintiff for $1.000.
KERLIN 11. CHICAGO,
P. &
ST.
L. R. Co. et ale
(Circuit CO'Uh't, D. Indiana.
April 21,1892.)
L
MASTElt AND SEltVANT-VICE PltINCIPAL-CONDUCTOlt AND BAGGAGD MASTElt.
In Indiana, a baggage master on a railroad train is considered a coservant with the conductor of another train, through whose negligence a collision occurs. Railway Co. v. Ross, 5 Sup. Ct. Rep. 184, 112 U. S. 377, distinguished.
2.
SAME-FoLLOWING STATE DECISIONS.
The control of the relation of master and servant and other like relations is reserved to the states, and the federal courts, when administering the state law upon such subjects, should'follow the decisions of the state courts.
8.
SAME-PLEADING.
A deCl,aration which, among other allegations of negligence, avers that a conductor was not a careful, skillful. and attentive conductor for a passenger train, which was known to the company, and that the death of a baggage master was caused by the ,conductor's ne!l'ligence, contai,ns all the allegations necessary to cODstitute a good cause of actlOn, and a demurrer on the ground of insufllciencl should be overruled.
At Law. Action by Anna J. Kerlin, administratrix, against the Chicago, Pittsburgh & St. Louis Railroad Company et al., for damages for the death of an employe in a collision. Heard on demurrer to the complaint. Overruled. Finch &; Pinch, for plaintiff. S. O. Picken8, for defendants. BAKER, District Judge. Complaint in two paragraphs, to each of 'Which the defendants severally demur for want of facts. The first paragraph, so far as material to the present inquiry, alleges that the plaintifrs intestate was in the employ of the defendant as baggage master, having charge of a baggage car of one of the passenger trains run by defendant between Chicago, Ill., and Indianapolis, Ind.,