Atchison, T. & S.F. Ry. Co. v. McNulty

• Decision Date: 02 November 1922
• Docket Number: 5964.
• Parties: ATCHISON, T. & S.F. RY. CO. v. McNULTY.
• Court: U.S. Court of Appeals — Eighth Circuit

285 F. 97

ATCHISON, T. & S.F. RY. CO. v. McNULTY.

No. 5964.

United States Court of Appeals, Eighth Circuit.

November 2, 1922

Rehearing denied January 16, 1923.

Erl H Ellis, of Denver, Colo., and Gardiner Lathrop, of Chicago Ill. (Henry T. Rogers, Lewis B. Johnson, Pierpont Fuller Percy Robinson, and Frank A. Kemp, Jr., all of Denver, Colo on the brief), for plaintiff in error.

Harry S. Silverstein, of Denver, Colo., and Chester B. Horn, of Colorado Springs, Colo. (G. Dexter Blount, of Denver, Colo., on the brief), for defendant in error.

Before KENYON, Circuit Judge, and MUNGER, District Judge.

MUNGER District Judge.

The defendant in error had a verdict and judgment in an action for personal injuries alleged to have resulted from the negligence of the plaintiff in error, and this proceeding seeks a review of the refusal of the court at the close of the evidence, to instruct the jury to return a verdict in favor of the plaintiff in error. The parties will be referred to as they appeared in the trial court.

The plaintiff's petition alleged that she was injured when the defendant's train struck an automobile in which she was riding, as the automobile was crossing the railway track of the defendant upon a public street crossing in the city of Colorado Springs, Colo.; that the train was negligently operated; and that proper warnings of its approach were not given. The sufficiency of the evidence of the defendant's negligence is conceded, and the sole question presented is whether the facts proved the contributory negligence of the plaintiff so conclusively, that a verdict should have been directed against her. The accident occurred between 5 and 6 o'clock in the afternoon of August 3, 1920, as the automobile was being driven east along Del Norte street in the northern part of Colorado Springs. Del Norte street is 100 feet wide. The automobile was struck by the engine of a north-bound train just as the front portion of the automobile arrived on the track. Four hundred feet south of and parallel to Del Norte street is Caramillo street, 100 feet wide; and 850 feet south of Caramillo street is Columbia street. The portion of the city adjacent is platted into blocks 400 feet square north of Caramillo street. The railway right of way south of Del Norte street is 80 feet wide, and the single line of railway track runs along its center, upon a grade hardly raised above the level of the streets or of the adjoining lands. The right of way just south of Del Norte street cuts through one of the city blocks leaving a strip of land fronting on Del Norte street for about 225 feet on the west, upon which there are three or four dwelling houses facing Del Norte street; the one farthest to the east and nearest to the railway track being a two-story frame dwelling, set back from the street. East of this dwelling and between it and the right of way is a narrow street about 20 feet in width, called Del Norte court, which extends south along the right of way for about two-thirds of the block. There are other buildings in the vicinity, but their location is not now important. The railway track to the south of Del Norte street curves to the east until about Columbia street. A person approaching the railway crossing from the west on Del Norte street in an automobile at a point 88 feet west of the crossing could have seen to the southeast along the railway track a distance of 1,446 feet, and could have seen all the intermediate points along the track, except that the trunk of one shade tree in front of the last house, and the trunk of a smaller tree and one telegraph pole and two columns of the front porch of that house, would have slightly obstructed full vision. It was admitted by plaintiff that an approaching train would have been in plain view at a point 70 feet west of the crossing, if the train had been no farther south than Caramillo street, which was 400 feet south of Del Norte street. There were no buildings or other obstructions along the railway track, the right of way, or Del Norte court, that would have hidden an approaching train. At a point 42 feet west of the crossing, the view to the south along the track was clear for 1,100 feet. The last obstruction to view of a train to the south had been passed at the point 70 feet west of the track.

The witnesses differed as to the speed of the train, placing their estimates from 12 to 35 miles an hour. The speed of the automobile, as it approached the crossing, was estimated by the witnesses as 10 to 15 miles per hour, and no change of speed was made, as it drew near the railway track. The plaintiff was a young woman 19 years of age at the time of the accident, residing at the home of her parents about three blocks from where the accident occurred. The automobile had just been overhauled and was in good condition. It had a front and rear seat and the driver sat on the left of the front seat. The plaintiff had driven this automobile daily when it was at home and had driven the family cars for nearly four years. The plaintiff left her home about 5 o'clock in the afternoon, driving this car, to obtain some supplies for the family's evening meal. She made her purchases at a store some six or seven blocks away and started home. She met a young man named Wilson, with whom she was acquainted, and stopped the car and talked with him. Wilson also wished to obtain some supplies from a nearby store, and the plaintiff asked him to get in the car. Wilson was a young man then 17 or 18 years of age, was a friend of the plaintiff's family, and had been riding with the plaintiff two or three times before this occasion. Wilson usually drove the car on these trips and had driven the car away from plaintiff's home to the knowledge of plaintiff's father. Wilson accepted plaintiff's invitation to get in the car, and she drove the car over the crossing where the accident later occurred and stopped at a store on the first street corner west of the crossing. After leaving the store, Wilson drove the car, the plaintiff sitting to the right of him on the same seat, and a young brother of plaintiff, who had accompanied her, rode upon the rear seat. Wilson drove the car south for two blocks, but it was decided not to stop at the store where plaintiff had already made some purchases, so he drove the car a block farther west and then a few blocks north to Del Norte street and then east about two blocks until the railway tracks were reached where the accident occurred. If there was negligence on the part of Wilson, the driver of the automobile, was it imputable to the plaintiff? While there are many instances in which a passenger in a vehicle is not responsible for the negligence of the driver, because he exercises no control over him (Little v. Hackett, 116 U.S. 366, 379, 6 Sup.Ct. 391, 29 L.Ed. 652; Dale v. Denver City Tramway Co., 173 F. 787, 788, 97 C.C.A. 511, 19 Ann.Cas. 1223, 8 L.R.A. (N.S.) 597), the negligence of the driver is imputed to the passenger where the relation between them is such that the passenger has control over the movements of the vehicle (Kayser v. Van Nest, 125 Minn. 277, 279, 146 N.W. 1091, 51 L.R.A. (N.S.) 970; Union Pacific Ry. Co. v. Lapsley, 51 F. 174, 177, 2 C.C.A. 149, 16 L.R.A. 800; Bernhardt v. City & S. Ry. Co., 263 F. 1009, 1012, 49 App.D.C. 265; Booth v. Mister, 7 Car. & P. 66, 67; Markowitz v. Metropolitan St. Ry. Co., 186 Mo. 350, 357, 85 S.W. 351, 69 L.R.A. 389; Slothower v. Clark, 191 Mo.App. 105, 110, 179 S.W. 55; Louisville Lozier Co. v. Sallee, 167 Ky. 499, 504, 180 S.W. 841; Ulman v. Lindeman, 44 N.D. 36, 41, 176 N.W. 25, 10 A.L.R. 1440; Hammond v. Hazard, 40 Cal.App. 45, 49, 180 P. 46; Solon & Billings v. Pasche (Tex. Civ. App.) 153 S.W. 672; Bofill v. New Orleans Ry. & Light Co., 135 La. 996, 1002, 66 So. 339, L.R.A. 1915C, 419; Read v. City & Suburban Ry. Co., 115 Ga. 366, 369, 41 S.E. 629; Elliott on Railroads, Sec. 1174; 36 Cyc. 1560).

The facts are undisputed as to the relationship of the...