Miller v. Union Pac. R. Co.

• Decision Date: 24 March 1933
• Docket Number: No. 9554.,9554.
• Citation: 63 F.2d 574
• Parties: MILLER v. UNION PAC. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

63 F.2d 574 (1933)

MILLER v. UNION PAC. R. CO.

No. 9554.

Circuit Court of Appeals, Eighth Circuit.

February 17, 1933.

Rehearing Denied March 24, 1933.

Martin J. O'Donnell, of Kansas City, Mo. (George H. Kelly and William Buchholz, both of Kansas City, Mo., on the brief), for appellant.

C. V. Garnett, of Kansas City, Mo. (T. M. Lillard and Bruce Hurd, both of Topeka, Kan., and Charles E. Whittaker and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, Mo., on the brief), for appellee.

Before KENYON, GARDNER, and SANBORN, Circuit Judges.

GARDNER, Circuit Judge.

This is an action for damages for death by wrongful act. Plaintiff's intestates, Marcus Andlauer and Ellanore Andlauer, husband and wife, were killed on a railroad crossing near St. Marys, Kan., December 11, 1927. It is charged in the petition that the defendant railroad company was negligent in operating its train at an excessive speed; that the trainmen failed to sound the crossing whistle; that they failed to warn plaintiff's intestates, or slacken the speed of the train after they knew, or could have known, of their peril. Defendant's answer is in effect a general denial and a plea of contributory negligence.

At the place where the accident occurred, defendant's railway track runs east and west, while Highway No. 40 runs in the same direction, but to the south of and parallel with the railway track for some considerable distance. St. Marys College is located north of the railway tracks, the grounds of which are entered from Highway No. 40 by means of a road leading north from the main highway and crossing the railway track. The distance from the north edge of the highway to the south rail of the track is 71½ feet. This railway crossing was marked by the standard railway crossing sign, located 17 feet south of the south rail, at the east edge of the highway as it passed north at right angles from Highway No. 40. The contour of the ground is generally level, so that an occupant of an automobile turning north from the main highway toward the railway crossing onto the highway leading toward the entrance of the college grounds, has an unobstructed view of a railroad train approaching from the east for a distance of more than 2,000 feet.

The Andlauers were traveling west on Highway No. 40, in a closed automobile, intending to drive into St. Marys College grounds; their son being a student at the college. After turning north, leaving Highway No. 40, and as they passed onto the railway crossing, they were struck by a west-bound passenger train and almost instantly killed.

The accident occurred about 3:30 in the afternoon, on a clear day. Andlauer and his wife were both familiar with the crossing. As they turned north, approaching the crossing, they were traveling at a speed estimated at from twelve to fifteen miles an hour, and did not slacken nor increase that speed, so far as the record shows. There was evidence that the train was traveling from fifty to sixty miles an hour, and there was testimony of two witnesses to the effect that they did not hear the crossing whistle sounded. There was also evidence that the train was about an hour late, and that it usually slowed down to from twenty-five to thirty miles an hour in passing by the St. Marys College property.

St. Marys is a town of about 1,200 inhabitants, and there is a student body at the college of from 500 to 1,000 students, and a faculty of about 100, all of whom, we assume, lived on the campus in dormitories, although that is not very clear from the record. An ordinance of the city of St. Marys limits the speed of trains within the city limits to twenty miles an hour, fixing as a penalty for the violation of the ordinance a fine of not less than $25, nor more than $100.

When the plaintiff rested, defendant interposed a motion for a directed verdict, moving in the alternative for a directed verdict or a dismissal upon the merits. The court granted defendant's motion in the alternative, and dismissed the petition on its merits. To this action of the court plaintiff excepted "for the reason that under the pleadings and the evidence the plaintiff was entitled to recover and was entitled to have the cause submitted to the jury." The exception was allowed, and the case has been removed to this court by appeal.

In effect the negligence charged is: (1) Failure to sound any warning of the approach of the train, either by the ringing of a bell or the sounding of a whistle, after knowledge that the automobile in which the Andlauers were riding was approaching a position of peril; (2) failure to observe a custom theretofore observed by it, to slow down its trains when passing St. Marys College and entering the city limits of St. Marys; and (3) failure to ring any bell or sound any whistle within eighty rods of the crossing. It is the contention of plaintiff that he was entitled to go to the jury on each of these issues.

Defendant contends that: (1) The evidence was insufficient to raise an issue as to the allegations of primary negligence; (2) that plaintiff's intestates were guilty of such contributory negligence as precludes recovery; and (3) that the doctrine of discovered peril or last clear chance was not applicable because there was no evidence that the defendant's employees discovered the peril in time to have avoided the accident.

In our view of the case it is not necessary to consider the debated question as to whether there was sufficient evidence of primary negligence to entitle plaintiff to have that issue submitted to the jury, because it seems clear, under the undisputed evidence, that Mr. and Mrs. Andlauer were both guilty of contributory negligence. We therefore assume, without deciding, that the evidence on the question of primary negligence was such as to entitle plaintiff to have had that issue submitted to the jury. As has been observed, the accident occurred in broad daylight, on a clear afternoon. The view toward the east was unobstructed, and had either of the occupants of the car looked toward the east as they approached this crossing, he could not but have seen the approaching train. It appears that the car in which the Andlauers were riding, was traveling at a speed of from ten to twelve miles an hour from the time it left the main highway and approached the crossing, and during that time the speed neither decreased nor increased; the car neither stopped nor turned aside. These are undisputed physical facts. It was their duty to look and listen as they approached this crossing, at such time and place as looking and listening would be effective. This crossing was a point of danger, with which they were both familiar. Certainly, the contributory negligence of the driver cannot be denied.

It is argued, however, that the negligence of the driver should not be imputed to Mrs. Andlauer, as she was a mere passenger or guest. We need not determine whether, under the facts and circumstances disclosed by this record, the negligence of Mr. Andlauer should be imputed to his wife, because this court has consistently held to the rule that it is the duty of one riding in an automobile, even though he is not the driver, to keep a lookout at railway crossings and give warning to the driver. Bradley v. Missouri Pacific R. Co. (C. C. A. 8) 288 F. 484, 495; Noble v. Chicago, M. & St. P. R. Co. (C. C. A. 8) 298 F. 381, 384; Chicago & E. I. R. Co. v. Sellars (C. C. A. 8) 5 F.(2d) 31; Kutchma v. Atchison, T. & S. F. R. Co. (C. C. A. 8) 23 F.(2d) 183; Parramore v. Denver, & R. G. W. R. Co. (C. C. A. 8) 5 F.(2d) 912. See, also: Summers v. Denver Tramway Corp. (C. C. A. 10) 43 F.(2d) 286; Garrett v. Pennsylvania R. Co. (C. C. A. 7) 47 F.(2d) 10.

In Bradley v. Missouri Pacific R. Co., supra, the facts were very similar to those in the instant case. In that case Mr. Bradley was riding in an automobile driven by a Mr. Brown. At a point 40 feet east of the railway crossing the approaching train was visible for a distanct of 800 feet. Both occupants of the car were killed, and there was no direct testimony as to the care exercised either by the driver or by Mr. Bradley. Both, as in the case at bar, were familiar with the crossing. This court held that Bradley, even though merely a guest, was conclusively shown by the record to have been guilty of contributory negligence. In the course of the opinion by Judge Kenyon it is said: "Here the hazard was brought about as much by Bradley's negligence as by Brown's. We think the question of contributory negligence here was one of law for the court, as the evidence relating thereto was undisputed, and but one conclusion can be drawn therefrom by reasonable minds, and that is that Bradley was guilty of contributory negligence, and the court would have been justified in so holding as a matter of law."

The doctrine of the Bradley Case was reaffirmed by this court in Noble v. Chicago, M. & St. P. R. Co., supra. In that case,...