Miller v. Union Pac Co

• Decision Date: 04 December 1933
• Docket Number: No. 51,51
• Citation: 290 U.S. 227,54 S.Ct. 172,78 L.Ed. 285
• Parties: MILLER v. UNION PAC. R. CO
• Court: U.S. Supreme Court

290 U.S. 227

54 S.Ct. 172

78 L.Ed. 285

MILLER

v UNION PAC. R. CO.

No. 51.

Argued Nov. 10, 1933.

Decided Dec. 4, 1933.

[Syllabus from pages 227-228 intentionally omitted] Messrs. Martin J. O'Donnell and William Buchholz, both of Kansas City, Mo., for petitioner.

Mr. Charles V. Garnett, of Kansas City, Mo., for respondent.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

In December, 1927, decedents, Marcus Andlauer and his wife, Ellanore Andlauer, while attempting to cross respondent's railroad track at a highway intersection within a few feet of the easterly boundary line of the city of St. Marys, Kan., were killed as the result of a collision between a train of respondent and the automobile in which they were riding. The wife sat in the front seat with her husband, who was driving. The automobile had been driven westerly along a highway parallel to the railroad track to a point about 71 feet south of the railroad track, where it was turned into a road running northerly across the track, and driven thence without change of speed at the rate of 12 or 15 miles per hour until the accident. The day was clear. The crossing was a familiar one to decedents; and, from the point where the automobile was turned to a point beyond the crossing, trains from the east were in plain view for a distance of 2,000 feet. The train which caused the accident came from the east at a speed of from 50 to 60 miles an hour. There was evidence that the whistle was not sounded; that the train was about an hour late; that it usually slowed down in approaching the crossing to about 25 or 30 miles per hour; and that a city ordinance limited the speed of trains within the city to 20 miles per hour. The rear wheels of the automobile were on or very near the south rail of the track when the collision occurred.

The trial court took the case from the jury and dismissed the petition on the merits with prejudice, holding that both decedents were guilty of contributory negligence as matter of law. This judgment the Circuit Court of Appeals affirmed. 63 F.(2d) 574.

So far as the case for the death of the husband is concerned, we agree with the courts below. Contributory negligence on his part was clearly established under the general rule frequently stated by this court. We need do no more than refer to the case of Northern Pacific Railroad Co. v. Freeman, 174 U.S. 379, 19 S.Ct. 763, 43 L.Ed. 1014, where a person killed by a moving train at a railroad crossing well known to him, with the coming train in full view which he could have seen while 40 feet distant from the track if he had looked, was held guilty of contributory negligence because, putting aside the oral testimony, these facts demonstrated that either he did not look or took the chance of crossing before the train reached him. 'When it appears,' the court said (pages 383, 384 of 174 U.S., 19 S.Ct. 763, 765), 'that, if proper precautions were taken, they could not have failed to prove effectual, the court has no right to assume, especially in face of all the oral testimony, that such precautions were taken. * * * Judging from the common experience of men, there can be but one plausible solution of the problem how the collision occurred. He did not look; or, if he looked, he did not heed the warning, and took the chance of crossing the track before the train could reach him. In either case he was clearly guilty of contributory negligence.' Authority for this view was found especially in Chicago, R.I. & P. Railroad Co. v. Houston, 95 U.S. 697, 702, 24 L.Ed. 542.

The case for the death of the wife is controlled by different considerations. Although it was at one time ruled in England Thorogood v. Bryan, 8 C.B. 115 (1849)—that the negligence of the driver of a vehicle is imputed to a passenger, that doctrine, much criticized and finally abandoned in England (The Bernina, 12 Pro.Div. 58), was never generally accepted in this country. Followed by a few state decisions, it was rejected by the great weight of American authority and, after full consideration, distinctly repudiated by this court. Little v. Hackett, 116 U.S. 366, 6 S.Ct. 391, 29 L.Ed. 652. And see Union Pac. Ry. v. Lapsley (C.C.A.) 51 F. 174, 16 L.R.A. 800. Whether a passenger or guest in a public or private conveyance, having no control over its movement, may be denied a right of recovery for personal injury or death on the ground of contributory negligence, depends upon his own failure to exercise a proper degree of care, and not upon that of the driver. This is true where the passenger is the wife of the driver as in other cases. Chicago, R.I. & P. Ry. Co. v. Fanning (C.C.A.) 42 F.(2d) 799, 803. And, while the state decisions are not uniform on the subject, the federal rule is definitely settled that the burden of proving such contributory negligence rests, in all cases, upon the defendant, Washington & G. Railroad Co. v. Gladmon, 15 Wall. 401, 406, 407, 21 L.Ed. 114; Texas & Pacific Railway v. Volk, 151 U.S. 73, 77, 78, 14 S.Ct. 239, 38 L.Ed. 78; Central Vermont R. Co. v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann. Cas. 1916B, 252, although, if such negligence be established by plaintiff's evidence, it hardly seems necessary to add, defendant may have the benefit of it, Washington & Georgetown R. Co. v. Harmon, 147 U.S. 571, 580, 581, 13 S.Ct. 557, 37 L.Ed. 284; Indianapolis, etc., R.R. Co. v. Horst, 93 U.S. 291, 298, 299, 23 L.Ed. 898.

In the present case, as already appears, the burden was sustained as to the husband. It was not sustained as to the wife. As to her, there is an entire absence of evidence on the point. Whatever duty rested upon her under the circumstances, for aught that appears to the contrary, may have been fully discharged. It properly cannot be said from anything shown by the record before us that she did not maintain a careful lookout for the train, or that, if aware of its approach, she did not warn her husband or urge him to stop before entering upon the cross- ing. Want of due care for her own safety must be proved; it cannot be presumed. The presumption is the other way. Texas & Pacific Railway Co. v. Gentry, 163 U.S. 353, 366, 16 S.Ct. 1104, 41 L.Ed. 186; Baltimore & Potomac R.R. v. Landrigan, 191 U.S. 461, 473, 474, 24 S.Ct. 137, 48 L.Ed. 262; Atchison, T. & S.F. Ry. Co. v. Toops, 281 U.S. 351, 356, 50 S.Ct. 281, 74 L.Ed. 896. If, as here, there be no evidence which speaks one way or the other with respect to contributory negligence of the person killed, it is presumed that there was no such negligence. Looney v. Metropolitan Railroad Co., 200 U.S. 480, 488, 26 S.Ct. 303, 50 L.Ed. 564.

Here the wife was not in control of the movement of the automobile. She could only note the danger, warn her husband, and urge him to stop. She may have done so, and he, misjudging the situation or taking the chance, have gone forward nevertheless. Or she may have seen the approaching train, observed that her husband was also aware of the fact and, relying upon her knowledge of his habits and character, trusted him, with good reason, until it became too late to interfere, to do whatever was necessary to avoid the danger. The applicable rule is found in Southern Pac. Co. v. Wright (C.C.A.) 248 F. 261, 264. That was a case where one Wright was riding in a motortruck with an experienced chauffeur as driver. A collision occurred between the truck and a train, which resulted in Wright's death. It did not appear whether Wright saw the train before it was seen by the chauffeur, The court said that he might have seen it, and yet reasonably remained silent on the assumption that, the view being unobstructed, the chauffeur also saw it and was governing himself accordingly. 'So that up to...