Chicago & EI Ry. Co. v. Sellars

• Decision Date: 30 March 1925
• Docket Number: No. 6790.,6790.
• Citation: 5 F.2d 31
• Parties: CHICAGO & E. I. RY. CO. v. SELLARS.
• Court: U.S. Court of Appeals — Eighth Circuit

5 F.2d 31 (1925)

CHICAGO & E. I. RY. CO. v. SELLARS.

No. 6790.

Circuit Court of Appeals, Eighth Circuit.

March 30, 1925.

Frank H. Sullivan, of St. Louis, Mo. (Jones, Hocker, Sullivan & Angert and William O. Reeder, all of St. Louis, Mo., on the brief), for plaintiff in error.

Charles P. Noell, of St. Louis, Mo. (Sidney Thorne Able, of St. Louis, Mo., on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and POLLOCK and SYMES, District Judges.

SYMES, District Judge.

This suit results from a railroad crossing accident at Haubstadt, Ind., on the night of August 26, 1922. A fast passenger train, operated by the plaintiff in error (defendant below), struck an automobile and killed instantly the wife of the plaintiff below, defendant in error here. He sued as the administrator of her estate and recovered a verdict.

We will first consider two questions of law that arose in the course of the trial.

The jury, after it had been out for some time, returned into court and received certain additional instructions upon the law. After further deliberation, they came in again, and in response to a question by the judge, announced they had not agreed upon a verdict; that they were unable to agree; that it was of no use to keep them together longer; that a great majority of the jurors thought they understood the court's charge and the evidence, but the others saw it in a different light. The presiding judge then instructed them further by reading an extract from the case of Allen v. U. S., 164 U. S. 501, 17 S. Ct. 154, 41 L. Ed. 528, to which the defendant excepted. The jury retired, and in less than five minutes returned with a verdict for the plaintiff. This excerpt from the Allen Case, supra, has been condemned as an instruction by this court in Stewart v. U. S., 300 F. 786, where it is set forth in full, as tending too strongly towards coercing the minority of the jury to surrender their honest convictions. The facts of the two cases are similar enough to make its use here a reversible error.

We have carefully considered the opinion of this court in Hill v. Wabash R. R. Co., 1 F.(2d) 626. The rule laid down there that: "All parties to the controversy are entitled to the uncoerced judgment of the jurymen, and the test of such an instruction as herein complained of is whether it is in fact an attempt to assist the jury or to coerce them. If it is an attempt to break down the individual judgment and honest conviction of a juryman in order * * * to reach a verdict, it is erroneous; but if it is an admonition or request to the jury to reason together, to consider one another's views, and attempt to reach a conclusion, it is entirely proper" — condemns the instruction under consideration here.

The court instructed the jury that there was no plea of contributory negligence by the railroad company, and that there could not be any, because the deceased, Mrs. Sellars, was only a guest or passenger in the car of Mrs. Burris, and had no control over it. This was error for two reasons: First, the answer made contributory negligence an issue by alleging specifically that the said Ida C. Sellars failed to look and listen for approaching trains, and neglected to warn the said Eleanor Burris of the danger in crossing the track, and negligently failed to exercise ordinary care to discover the approach of the train, etc. Secondly, this court has passed upon the liability of a passenger riding in an automobile driven by another, and has held that, although the negligence of the driver is not imputable to the passenger and the latter is not precluded from a recovery by the former's negligence, yet the passenger is himself chargeable with contributory negligence, when by looking he could have seen the train in time to have prevented the accident. A passenger who sits quietly in an automobile and allows the driver thereof to take him into a place of danger, without effectively exercising his senses for his own protection, or without warning the driver or making a protest, is guilty of contributory negligence and cannot recover. It therefore follows that the jury should have been instructed on the question of contributory negligence as requested by the defendant. Bradley v. Missouri Pacific R. R. Co. (C. C. A.) 288 F....