50 F. 172 | U.S. Circuit Court for the District of Northern Iowa | 1891
{charging jury.') In this case the plaintiff, as administrator of the estate of Eliza J. Lapsley, seeks to recover against the defendant company for the amount of damages it is claimed was caused to the estate of Eliza J. Lapsley by reason of the fact that in November a year ago Miss Lapsley was killed by an aocident happening upon the track of the defendant company. In order to entitle the plaintiff to recover under circumstances of this kind, it is not sufficient simply to show that an accident has happened, and that injury or death has resulted therefrom, the accident being caused by a collision with the train of the defendant upon the road of the defendant company. The burden is upon the plaintiff of going further, and showing, in the first instance, by a fair preponderance of the credible testimony in the case, that the accident was caused by negligence upon the part of the railway Company. In other words, this action is one that is
The next charge of negligence is that the train was run at a high and unnecessary rate of speed. Now, gentlemen, there is no law in this state that fixes the rate of speed — that is, the number of miles per hour — that a train may run under the circumstances surrounding this transaction. The rule, therefore, to be applied is the common-law rule — the common-law rule that the duty and obligation rests at all times upon the railroad company to use proper care — ordinary care and prudence — in the running and management of its trains, so that no unnecessary risk or hazard shall be cast upon the public. So you see, therefore, that the question as to the rate of speed, whether it is negligence to run a train at a given rate of speed, depends upon the facts and circumstances surrounding the case. As has been said by counsel, when a train is running out upon the open prairie,- — in the open country, — where there is not much liability to meet people crossing a track, and other sufficient signals are given, the cars maybe run at a high and rapid rate; and there is no law that would require them to check the rate of speed when they are approaching the crossing, if the circumstances and surroundings of that crossing are such that, with the signals that they have given, reasonable warning of the approach of the train is given to the public. You see that is the test. The train must be run at such rate of speed, and accompanied by such signals, as that, as they approach these crossings or highways, a reasonable warning may be given to the public in order that any person desiring to cross may receive reasonable warning of the approach of the train, and be able to take proper care for his own safety. When trains are run into a city or place where there is a large amount of travel that may be expected to cross the railroad track at a given point, at the intersection of a given street, then the speed at which the train may be rightfully run there depends, as you see, on the circumstances that surround that particular crossing. Now, in determining that, you must take into account the surroundings of the crossing, the opportunities that parties may have who are coming down upon the street for the purpose of crossing the railroad track of observing and seeing trains. If there are no obstructions in the way, no buildings about the corners, so that persons driving along the street or highway have a full opportunity of seeing the trains as they come in either direction for quite a distance, and in that way, by the use of reasonable care on their part, may receive warning of the approach of trains, why then, in the exercise of ordinary care, the railroad company would be justified in running its trains at a more rapid rate of speed than it would be if the crossing was not so situated. Now, if you have a case in which, by reason of buildings or other natural obstructions, like trees or embankments, or the shape of the ground from a cut or embankment, or whatever it may be, the fact is that persons driving down and along the highway have their view obstructed, and they would be unable, by reason of these obstructions, to see the cars at any distance, then the railroad company must run its trains and determine the speed of trains
The third charge of negligence contained in the petition is that there was no flagman or other means of warning placed at this intersection of -Leech street with the line or track of the defendant company. Now, there are circumstances that may surround railroad companies, such as the amount of business, the amount of travel over the street, the obstructions that surround- -the intersection of the street or the highway; that may require of the railroad company, not alone the giving of signals by the ringing of the bell or the sounding of the whistle or means of that kind,- but ma3r also require of them, in the exercise of proper care and prudence upon the part of the railway company, the placing of flagmen at the crossings, or the placing of gates, or some means by which the public will bé warned of the approach of the train by signals that are given either by flagmen or the lowering or raising of gates, so that the persons who come down and along the highway are warned thereby that there ⅛ danger by reason of the coming of a train. The law does not’define the way that should be done, excepting under the same general rule that I have already given you. The duty and obligation, as I have already said, is upon the railway company to take all reasonable care and prudence to so manage the running of its’ train, including the care of crossings, — the protection in that sense of the crossings, — as that the cars and trains may be passed over the
Now, gentlemen, in deciding all questions of this kind you must remember that you are to place yourselves as near as may be in the position that the parties occupied just prior to the happening of the accident. It is a familiar and common saying that hindsight is better than foresight. It is not that we can look back and, in the light that is now thrown upon the transaction, say that now, looking at it in view' of the accident as it happened, that, if thus and so had been done, or this and that had not been done, the accident would not have happened. That is not a fair way of viewing the position of the parties. The question is, taking the position of the parties and the situation of affairs as it was just prior to the accident, as the matters then stood, what was then and there required of the parties in the exercise of ordinary care and prudence? Now, then, looking at that crossing before this accident happened, we will say on the morning of that day, — looking at that crossing, its nature, its character, and the obstructions that were round about it, whatever they may have been, taking into account the speed at which the railway company expected to run its trains over that crossing, taking into account all of those circumstances, — it is for you to say then whether, as the company then stood, and as the circumstances then appeared, the company did or did not exercise proper, care and prudence on its part, whether it required the placing of flagmen or the placing of gates or any other means of warning at this crossing. These remarks that I have made apply to these other questions of negligence. We are to look at it as it would appear to reasonably fair and prudent men immediately prior to the time of the happening of the accident. If the evidence has failed to satisfy you that the defendant was guilty of negligence in any of the three particulars that I have named before you, that ends the case. Then the plaintiff has failed to make out the charge of negligence against the railroad company; and, that being the case, then yoür verdict must be for the defendant. If, however, under the evidence, you find that the defendant, under the instructions that I have given you, was guilty of
Now, it is a principle of law that where the negligence of both parties combine to produce the accident, then neither one can recover as against the other. The law does not attempt to separate out the consequences of the negligence of the one party, as distinguished from the negligence of the other. If the negligence of both parties contribute to or aid, as the proximate cause or causes in the producing of the accident, then neither one can recover from the other, and this is what is known inlaw as the defense of contributory negligence. As I have said to you, gentlemen, the law places upon the party — the citizen, the individual — who is about to use a highway or street which crosses over a railway track the duty of using due care, ordinary prudence, foresight, and caution for his own protection. A person is not justified, when he is approaching a railway crossing, in simply driving over it without taking any precautions at all to see whether there is a train approaching. It is his duty to know and he is bound to know that there may be trains coming down upon that track. As you drive down along a street or highway, and you see that there is a railroad- track laid down across that street or highway, as you approach it-, your own common sense tells you that may be a place of danger. You know the purposes for which those rails are laid there. It is intended that trains should pass over them, and you know that railroad trains are run at a very considerable rate of speed, and in many instances at a high rate of speed, and that they may rightfully run, under proper circumstances, at a high rate of speed. You know that trains are composed of many cars; that they are very weighty; and that it is impossible, in the nature of things, to always stop a train promptly; and that, therefore, as you approach that crossing, if there is a train coming upon the track, if you attempt to pass over it you may be subjected to risk and danger by so doing. Hence the law places on you, as you approach the crossing, the exercise of due care and caution for your own protection; just as, in the. case of a railroad company, what a party should do as he approaches one of these crossings would depend on the surrounding circumstances. If you are driving in an open country, and the railroad track is in sight for a long distance on either side of you, the law expects you to exercise your senses of sight and hearing, and that you will be careful to see whether or no there is- a train approaching, and whether you can or cannot safely attempt to make the crossing; and you are not justified in attempting to make the crossing if the train is approaching so close as that, if you attempt to make that crossing, you will thereby run the risk or danger of injury. Now, then, when a crossing is obstructed— I may say, however, further, as you approach a railroad track in an open country, and you have full opportunity of seeing the tracks for quite a distance, and if you fairly use your senses' of
Now, gentlemen, the evidence in this case shows that the deceased, Miss Lapsley, was in a wagon, driven by her brother, and that there was one or two other members of the family in the wagon. The evidence has shown you the facts and circumstances as to how they came to be there; how they passed down on Leech street, and drove towards this crossing, and, as the horses and wagon passed over and upon that track, that they were struck by a train or locomotive upon the defendant’s railway;
Some discussion has been had in this case in regard to the negligence on the part of the driver, and the relation that he maintained' to the deceased. The uncontradioted evidence in the case shows that the wagon was driven by the brother, and upon the part of
There may be other circumstances, gentlemen of the jury, in which it becomes á question of fact to determine whether a party is or is not to be held liable for the negligence of another one who accompanies him. If there are a number of us together in a common enterprise, and we are in a carriage or wagon, and one is holding the reins and driving, and the others have the right of control over him, and in fact exercise it over him, although this relation of husband or parent or guardian or of master and principal may not in fact obtain as a matter of law, yet, if the relation is such that a person does in fact have the right of control, and does in fact exercise the right of control, then a jury would be justified in finding that the negligence of the driver would be imputed to the other, but would not be justified in imputing it without the parties in the particular instance did in fact exercise this right of control under such circumstances as that it would justify you in finding that the driver was
If you find, gentlemen, however, that the circumstances were such
You have got to apply those general rules that I have given to you in the exercise of sound common sense, with the facts and circumstances that are developed in the evidence. All that the law can do is to give you general rules, and it is for the jury to apply those rules of law with reference to the facts and circumstances as they are developed in each particular case, — as those facts and circumstances are brought before you in the evidence in the case. Upon this charge of contributory negligence, as I have said to you, a duty and obligation would be upon this deceased, either through herself or her brother, if she had control over him in the management of that wagon, so that he was her representative in that particular, to exercise due care in the approach to that crossing; and, if he was her representative, and she had control over him, so that his negligence could be imputed to her, and he was negligent, then a recovery cannot be had in this action. Or, on the other hand, if the relation and position that the parties occupied to each other was not such as that the negligence of the brother could be imputed to the sister, then the negligence of the brother would not
If upon the issues you find for the plaintiff, your next duty will be to determine the amount of damages. In cases of this kind, gentlemen, the rule is compensation for the pecuniary loss that is caused to the estate of the deceased by the death of the party. You are not entitled, in cases of this kind, under the law, to take into account the injury to the feelings of. the members of the family or the relatives that are left. The law does not attempt to weigh that, or give damages therefore. The measure is the pecuniary, loss caused to the estate of the deceased party. Now, that is a money loss. Of course,- it is impossible for testimony to be brought before you to show the exact amount of that pecuniary loss; that is to be intrusted to the good common sense and good judgment of the jury; but that is what you are to allow. The theory is this: that, when a person is killed, then the estate suffers a loss in money, — what the person may accumulate had he continued to live for- the probable extent of his lifetime. The Carlyle tables have been admitted before you, showing the expectancy of life of the party who was killed, — I believe, some 22 years, or a little over. Remember, gentlemen, that you are not to assume it as a fact -that Miss Lapsley would have lived 22 years, and then figure up what she might have earned in 22 years, and allow that as damages. That is not the rule, because you know these tables are merely based upon the average expectancy. Notwithstanding her expectancy of life would be 22 years, and although this accident might not have happened, she might have lived only a year; she might have died from a variety of causes-, and she might have lived longer than her expectancy. Therefore, all you can do in a case of this kind is to give weight to the probabilities. You know that the probabilities are that a person who is young will live
Verdict and judgment for plaintiff for $1,000.
The following authorities are cited in support of the doctrine contained in the instructions in reference to imputed negligence: Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. Rep. 391; Noyes v. Boscawen, 61 N. H. 361, 10 Atl. Rep. 690; Nesbit v. Town of Garner. 75 Iowa, 314, 39 N. W. Rep. 516; Robinson v. Railroad Co., 66 N. Y. 11; Railway Co. v. Creek, (Ind. Sup.) 29 N. E. Rep. 481; Cahill v. Railway Co., (Ky.) 18 S. W. Rep. 2; Randolph v. O’Riorden, (Mass) 29 N. E. Rep. 583.