Union Pac. Ry. Co. v. Lapsley

• Decision Date: 13 June 1892
• Docket Number: 87.
• Citation: 51 F. 174
• Parties: UNION PAC. RY. CO. v. LAPSLEY.
• Court: U.S. Court of Appeals — Eighth Circuit

51 F. 174

UNION PAC. RY. CO. v. LAPSLEY.

No. 87.

United States Court of Appeals, Eighth Circuit.

June 13, 1892

Statement by SANBORN, Circuit Judge:

The defendant in error, who was the plaintiff below, was the administrator of the estate of Eliza J. Lapsley, deceased and brought this action against the Union Pacific Railway Company to recover damages for the negligent killing of the decedent. The evidence disclosed the following facts: On November 27, 1890, the decedent was living on a farm near Dakota City, Neb., which had belonged to her father, and continued to be the homestead of the family after his death. She was 48 years of age, and was a capable woman, in good health, and accustomed to manage the affairs of the homestead. The plaintiff was her brother, and lived in the same neighborhood. They had a brother living in Sioux City Iowa, one of whose family was ill, and decedent proposed to go to Sioux City with a younger sister to visit the sick one and do some shipping. The plaintiff informed her that he was going to that city the next day to do some business of his own, and they could wait and go with him. On the next day the plaintiff and his two sisters went to Sioux City in plaintiff's open two-seated democrat wagon, where they each attended to their respective business matters, and after taking dinner at their brother's, started to return home. Plaintiff, who was 45 years old, sat on the front seat with the younger sister, and drove his team, while the decedent sat on the back seat of the wagon. Leech street, in Sioux City, crosses the street upon which defendant's railroad is operated; and, owing to the lay of the ground and to the buildings and other obstructions, it was impossible for one approaching the crossing on this street to see a train coming from the south for quite a distance along said street until one was close to the track. Plaintiff drove down towards the crossing on this Leech street at a slow trot, looking for trains in the usual way. No bell, whistle, or other signal was heard, and just as the team was on the track an approaching train was seen, which struck the wagon, and so seriously injured the decedent that she died in a few minutes. Both plaintiff and his sister knew the surroundings of this crossing, and they came down in the wagon without stopping to look or listen. The court below charged the jury that if the defendant was negligent in operating its railway, and that negligence was the proximate cause of the injury, the plaintiff was entitled to recover unless they found that the decedent was herself negligent in approaching the crossing, or controlled the driver as he approached the crossing and he was negligent, and such negligence contributed to the injury; but that if the decedent was herself negligent, or if she controlled the action of her brother, the driver, as he approached the crossing, and he was negligent, and such negligence contributed to the injury, plaintiff could not recover. The defendant company insisted that the negligence of the plaintiff, the driver, must be imputed to the decedent as a matter of law; but the court refused to so hold, and charged the jury upon this question that if they found as a matter of fact that the decedent had and exercised actual control or direction of the driver as he approached the crossing, and he was negligent, then his negligence must be imputed to her and she could not recover; but that, if they found she did not have or exercise such control, the negligence of the driver could not be imputed to her from the mere fact that she was riding in her brother's wagon on his invitation, and he was driving the team. This holding and charge of the court is the only error assigned in this court, and, judgment having been rendered against the defendant, it sued out this writ of error to review this portion of the charge.

J. M. Thurston, for plaintiff in error.

A. S. Wilson and S. M. Marsh, for defendant in error.

Before BREWER, Circuit Justice, and CALDWELL and SANBORN, Circuit judges.

SANBORN Circuit Judge, (after stating the facts.)

Under the instructions of the court the jury, in arriving at their verdict, must have found that the negligence of the defendant company in failing to ring its bell, sound its whistle, or provide a flagman at this crossing was the proximate cause of the injury complained of; that the decedent was not herself guilty of any negligence that contributed to the injury; and that she neither had nor exercised any control over her brother, the driver, as he approached the crossing. The owner and driver of the team exercised entire control over it, and was traveling entirely on business of his own,-- business in which the decedent had no part or interest. There is no pretense that the driver was not entirely competent to take charge of the team himself, nor that he did not possess the requisite skill to manage and control the same; so that the case sharply presents the question whether one who, while riding gratuitously in a carriage owned and driven by another, is injured by the concurrent negligence of a third person and the driver, over whom he has no control, is barred from recovering compensation for the injury from the former by the contributory negligence of the...