Emery v. Northern Pacific Railroad Company

• Decision Date: 27 March 1969
• Docket Number: No. 19275.,19275.
• Citation: 407 F.2d 109
• Parties: Alice EMERY, Individually, and as Trustee for the North Dakota Workmen's Compensation Bureau, Appellant, v. The NORTHERN PACIFIC RAILROAD COMPANY, a Corporation; William Norman and Thomas McMahon, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

407 F.2d 109 (1969)

Alice EMERY, Individually, and as Trustee for the North Dakota Workmen's Compensation Bureau, Appellant, v. The NORTHERN PACIFIC RAILROAD COMPANY, a Corporation; William Norman and Thomas McMahon, Appellees.

No. 19275.

United States Court of Appeals Eighth Circuit.

February 17, 1969.

Rehearing Denied March 27, 1969.

COPYRIGHT MATERIAL OMITTED

Carlton J. Hunke, Fargo, N. D., for appellant; Mart R. Vogel, of Wattam, Vogel, Vogel, Bright & Peterson, and Thomas A. Davies, of Soule & Davies, Fargo, N. D., with him on the briefs.

E. T. Conmy, of Conmy, Conmy & Feste, Fargo, N. D., and Edward M. Glennon, Minneapolis, Minn., for appellees.

Before MATTHES, GIBSON and LAY, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

This is the second appeal by plaintiff Alice Emery from a final judgment dismissing her complaint against the defendants, The Northern Pacific Railroad Company, and William Norman and Thomas McMahon, the engineer and fireman of a Northern Pacific passenger train involved in a railroad crossing accident, on February 23, 1964 in Grand Forks, North Dakota. The train collided with a Volkswagen bus resulting in five fatalities, including that of Bishop Richard H. Emery, the plaintiff's decedent. The bus was owned and operated by Reverend Edwin L. Bigelow.¹ Jurisdiction is based on diversity of citizenship and a claim in a requisite amount. The substantive law of North Dakota applies.

Judgment for defendants was entered based upon a jury verdict in their favor. The facts are set out in the first appeal, Emery v. Northern Pacific Railroad Company, 370 F.2d 1009 (8 Cir. 1967), and will not be repeated here except where necessary to discuss the issues of this appeal. The first appeal resulted in a remand because of an erroneous instruction, submitting the issue of joint enterprise and imputed negligence to the jury, this Court holding that there was no substantial evidence to support the joint enterprise issue and that no basis existed for the submission of the imputed negligence issue to the jury.

The plaintiff on this appeal charges the District Court with error: (1) in refusing to give a requested instruction that Bigelow's negligence was not to be imputed to Emery, (2) in instructing the jury on contributory negligence, and (3) in refusing to instruct the jury on the last clear chance doctrine.

Plaintiff's requested instruction No. 3 on nonimputation of negligence reads:

"You are reminded of the fact that the vehicle in which the deceased Richard H. Emery was riding at the time of the accident in question was then being operated by Edwin L. Bigelow. You are instructed that the negligence of Edwin L. Bigelow, if any, may not be imputed to the decedent, Richard H. Emery, and therefore, you shall find that he the said Richard H. Emery was not guilty of contributory negligence in any degree proximately contributing to causing the accident." (Adapted from Cal.Jury Instructions, No. 210C.)

"Ordinarily, negligence on the part of the driver of a vehicle cannot be imputed to a passenger riding with him." Kelmis v. Cardinal Petroleum Company, 156 N.W.2d 710, 715 (N.D.1968); see also, Anderson v. Stokkeland, 125 N.W.2d 665, 667 (N.D.1964); Wilson v. Oscar H. Kjorlie Co., 73 N.D. 134, 12 N.W.2d 526 (N.D.1944). Absent joint enterprise, that principle was recognized by us in the first appeal in this case.² Although defendants again argue that Bishop Emery was not a guest and that Bigelow and Emery could have been on a joint mission for their church, that issue has been settled in the first appeal; and the evidence on the retrial being substantially the same on this point, the law of this case is that the driver's negligence cannot be imputed to Bishop Emery and no basis exists for the submission of the imputed negligence issue. As stated in American Surety Company of New York v. Bankers Savings and Loan Association, 67 F.2d 803, 805 (8 Cir. 1933):

"Stated generally, the rule is that, `where evidence is substantially the same on both trials, questions of law determined on writ of error or appeal are "law of the case," * * *, on second writ of error or appeal.\'"

This reasoning was also followed in Metzger v. Hossack, 165 F.2d 1 (8 Cir. 1948) and in Kempe v. United States, 160 F.2d 406 (8 Cir. 1947), subject to the exception expressed in both of those cases that the law of the case need not be followed if the original holding was "completely erroneous". See 1B Moore, Federal Practice § 0.4041 (2d ed. Supp. 1965). We feel that our previous analysis of this point was correct.

The plaintiff was clearly entitled to an instruction that the driver Bigelow's negligence was not to be imputed to Bishop Emery. While there does not appear to be any North Dakota decision on this precise point, other jurisdictions have held that where the issue of contributory negligence is submitted it is prejudicial error to fail to inform the jury that the driver's negligence is not imputed to the passenger. Bishop v. Plumb, 363 Mich. 87, 108 N.W.2d 813 (1961) held at 815:

"Once the court submitted the question of * * * contributory negligence to the jury, it was an essential requirement of fair and full instruction on the law applicable to the plaintiff\'s case that he also instruct the jury that driver\'s contributory negligence, if any, should not be imputed to * * * a guest passenger, and he did so. Had he failed to so instruct on such an important element of the law applicable to the facts in this particular case, he would have committed reversible error even though no request were made to so charge."

Tomson v. Kischassey, 144 Cal.App.2d 363, 301 P.2d 55 (1956) held it to be reversible error not to give an adequate instruction that the contributory negligence of the driver of a bicycle was not to be imputed to the passenger, unless the jury found a joint enterprise. To the same effect is Van Noy v. Frank, 10 Cal.App.2d 423, 51 P.2d 1166 (1935). Accord, Gellerson v. Rasins, 248 Md. 75 234 A.2d 758 (1967); Cobb v. Chubeck, 399 Pa. 201, 160 A.2d 207 (Pa.1960).

The question arises of: (1) whether a proper request for such an instruction was made, and (2) whether the court in effect covered this issue in its charge.³ The District Court refused to give the requested instruction No. 3 because of the last clause thereof reading: "Therefore, you shall find that he the said Richard H. Emery was not guilty of contributory negligence in any degree proximately contributing to causing the accident." We think the instruction as requested was too broad and the District Court was correct in refusing it as requested in that it directed the jury to conclude that Emery could not be found contributory negligent since Bigelow's negligence could not be imputed. Emery's contributory negligence, if any, was still a submissible issue as decided on the first appeal, thus making the last clause of the instruction incorrect and misleading.

The plaintiff orally requested a correct instruction solely related to the point that the driver's negligence could not be imputed to Emery, but defendants argue that this request was not made in accordance with Rule 51, Fed.R. Civ.P., requiring written requests for instructions. While we think the defendants are technically correct on the procedure to be followed in requesting instructions, we do think that basically the plaintiff was entitled not only to an instruction on her theory of the case but to a clear and unequivocal instruction that driver Bigelow's negligence (which appears to be obvious) should not be imputed to Bishop Emery. We canvass the charge then to ascertain, as contended by the defendants, that such instruction was in effect given. For as noted in Cohen v. Evening Star Newspaper Co., 72 U.S.App.D.C. 258, 113 F.2d 523, 524 (1940):

"A party has no vested interest in any particular form of instruction. This is true, even though the proffered prayer may be unobjectionable in itself, standing alone, as a statement of law. What the language of the instructions shall be is for the trial judge to determine. If, on examination of the entire charge, it appears that the jury has been fairly and adequately instructed, the requirements of the law are satisfied."

See also, LaBarge Water Well Supply Co. v. United States, 325 F.2d 798 (8 Cir. 1963); McDonnell v. Timmerman 269 F.2d 54, 62 (8 Cir. 1959); Mounds Park Hospital v. Von Eye, 245 F.2d 756, 764, 70 A.L.R.2d 335 (8 Cir. 1957). The Court in its charge did say that if the defendants were found to be negligent, the jury must inquire whether,

"* * * The defendants have proven by a fair preponderance of the evidence that Richard Emery himself was guilty of contributory negligence as defined in these instructions. and If you find by a fair preponderance of the evidence that Richard Emery himself was guilty of negligence * * such contributory negligence would bar any recovery by the Plaintiff * * * regardless of any negligence on the part of the Defendants, * * *.

* * * * * *

"And With regard to the Defendant\'s claim that the Plaintiff\'s decedent, Richard Emery, was himself guilty of contributory negligence, you are instructed that the law presumes that said Richard Emery, in his conduct at the time of and immediately preceding the accident, was exercising ordinary care." (Emphasis supplied.)

The use of the pronoun "himself" did serve to direct the jury's attention to the fact that it was the negligence of the decedent Emery that would defeat plaintiff's recovery in the event the defendants were found negligent. But the obvious negligence of driver Bigelow dominates this factual consideration, and we think the plaintiff was entitled to a clear and unequivocal statement that the driver's negligence was not to be imputed to Bishop Emery. Failure to do so deprived plaintiff of a fair submission of her case.

Plaintiff maintains the District Court erred in instructing the jury on the issue of contributory negligence and cites two North Dakota ...