Brief for Respondent — Miller v. Union Pacific R. Co.

u

In the S

prem

ee | Fs as

ae aoe Se

,

r of the Estates of

ndlauer, Petitioner

.

*

*

' Andlauer and Ellanore

Umsiow Pacrrio Rarroan Comp.

Wuuiusm Muss, A

Prefiminary Statement li said aati aitieidiiediaa lsildanceceadalie . #

Statement of ‘oS cecal isssebcpscsaaibaiailatis 2-5

Summary pf the Argument... eesecccescccieceeee , 68

Marcus. Andlauer was guilty of contributory negli-

gence.as a-matter-of law................ esneneaitedaidlenaiasions 6,9

Kllanore Andlaner was also guilty of contributory |

- negligence as a matter of laW......ccccccescccsseeecenseee 6, 12

Respondent cannot be held liable under the last

TE I sc stsrntbiecsinisinchasiiaielintaschapicnemictiis ehatetccans 7, 20

There is no merit to. petitioner’ s contention. that

his rights under the Seventh Amendment to the

Constitution Were violated by the action of the

trial court in dismissing the ease with prejudice

‘rather than directing a verdict in favor of

, respondent seicaliae ieseiteadeciheSichdinedadilaneitilsiidasiacseecaiigs 8, 25

Argument idcniasineleiectie: weecesesetqeecepne aitaaaae te 9-36

. Conclusion peveeaen RED a ne TOT IONE Fo UN 37

| Table of Cases Cited.

PAGE

-, Atehison, T. & S. FL Ry. Co. v. MeNulty, ee

8) 285 ‘Fed. DT -casssepeseesteneessnscncnnamnnenennen ipaniiladn ines 714

Baltimore & Ohio "i R. Ce, v. Goodman, 275 U.- |

REESE E aoe Nreneeee ERY RAN Eb Mote aS ec REE RO OEE 6,9.

’ . Barrett v. ‘Shipley, 206 Pae. $30, ____ Sa Acer o. ae

— Beaver v. Taylor, 93 Us S. 46, | Ree

~ Beckwith v. Bean, 98 US S. 266, i cesieinas ans nneiansinnrtnite $8

' Bohenik v: eg & adien (o., 49 Fed. (2nd):

ge 724 (C. C. f Me 2) (certiorari denied, 284 U.

RE TSE LY, SIREN Wt RCS Rea i RAE EN wwe B82

racer v. Railroad, 184 Fed, G97 (CG. CL A, 8) vue . 8.

- Bradley v. Mo: Pac. Ry. Co, 288 Fed. 484, 487......6, 11, 3°

— Brommer v. Ratiyay Co, (C. C. A. 3) 179. Fed. tty |

Central Transportation Co. ve Pullman’ ~ Car Co.,

TE aR RSIS einen epic ce rane ae 8,31.

Chicago & KB. lL. Ry. Co. v. Sellars, (C. C: AL 8) Hs)

Fed. (2nd) 31 ............... Sich aeblanilhcicasaaeibpahesinlisicbiieliaannbeicenti 6, 14

Conghran v. Bigelow, 164 U. s. 301, DE omenivniten 8, 31

Davis v. CO. ROL & P. R. Co. (@. C, A:.8) 159 Fed.

0

I acinomae entann eS

Fillippon v. Albion Vein Slate Co., 250 U. S. 76, 82.. 8,27

Fluckey_v. Southern Ry. Co., (C. C. A. 6) 242 Fed.

468 santana a a sidesaailiidinaiinaabismil Diiediaissititaiindies 7, 14

Garrett: v. Pennsylvania R. Co., c. C. A. 7) 47 Fed. *

(2nd) 10 .......2.... ee 6

Gasoline Products Co. v. ‘Chemaiiin Co., 283. U. S.

EERE RES te ee cd ae RO Oe 8, 30

Guerini Stone Co. v. Carlin, Construction Co., 248

| TABLE OF CASES CLT ED—Continued.

Hall-v. Railway Co. (C. C. A. 3) 244 Ped. 104.005... 7, 14

v. —e 178 Mo. 620, G34. "Su Rinne sipedeaiiceans. a

- Mlinois Central Ry. Co. v. Ackerman, (C. C. A. 8)

144 Fed. 959 | ecssesnidananilandtshcasous T2222

eet Pee)

Kutchma v. Railway Co, (C. C. A, 8) 23 Fed. (2nd) :

183 on ‘ enisincriics OM

—

Little v. Hackett, 116 U.S. 366.0 ecsseseee 7, 20°

Mouler v. American Ins, Co., 111 U. 335, 337. POA 8

Noble v. Railway, (C. C. A. 8) 298 Fed. Rese 6,14

Oscanyan v. Arms (¢ = 103 U. S.- 261, Se ee 8, 31

; Savane v. Railroad, (C. C. A. 8) 5 ‘Fed, (2nd)

; ___ Spt DRE ONE en Oy Hef aCe Se ace 6, 14 Ne

- Pennington v. Southern Ry. Co., (C. €. ‘A 5) 61 Fed. \* |

(2nd) 399 ....... ih einai cidhebeliphecsincessingh ephatiensabicncnaaiiatis 7,14.

t+ ~ Phila. & R. Ry. Co. v. LeBarr, (©. CA. 3) 265 Fed.

129. eeepc taeiselenaabinsancinitinaailiitcnasbancaisuismetenisincieiinia.ostinunmiiees 7, 14°

Phillips | v. Davis, (C. C. A. 3) 3 Fed. ae 798........ 7,14

ss Railroad v. Houston, 95 U. 3. Oi... ae ene Oe Wc 6, 10.

Railway Co..v. Divine, 39 Fed. (2nd) 537....00...0/..0...... 15«

Robinson & Co. v. Belt, 187. U.S, 41, 50 eases a aes 8, 28

iitseiais v. Mow York Life Insurance Co., 228 U. %: wae

Pe eM EPEIE OREE nNiRS Sci Sc NEAR VL OE ey eC a

Southern Pacific Co. v. Wright, 248 Fed. 261... 17

- Southern Pacific Co. v. Stephens, 24 Fed. (2nd) 182.

| TABLE OF CASES CITED — vantinued.

PAK

Sotithern’ Ry. Co. v. Pileater, (C, ie FF 4) 289 Ved.

SN RE Rae re Coe Pm RI 7,14

Summers v.: Denver Tramway Co. (C, C.. A. 10) 43

Bed. (21d) 286 ....esssseessssepesesssssnessssnessenneensnneenssnennntinan 7,15

Toledo, St. L.& W. R. RB, Co, v. Allen, 276 U.S. 165, oy

17 3 seins eansninnenshnngseddifindsnbsapnentetatatanensDonchenhsatnesodbasahdesingnes TTT Ty + 23 F ‘

Trenholm, v. Railway Co., 8 Fed, (2nd) 45220000000... 18

United States: v. U.S. Fidelity Co. 236 U.S. 52,

RES imc ensdapeenbnanesnse. salut ge incninscel oneal 8, 27,28 -

\ Statute Cited. |

‘40 Stat. at L. 1181 (Pit. 28, See. 391, U.S. vay a 8, 29

es Text Book Cited. i ee

ij See ‘* ‘ ory .

ee Ae. |_| Ree enn Sts net te snernEnenanreee Leomoiphuascateiatiell : » 34

2 2

." the Sasiniiins Court of the

- United States

October Term, ae i

No. 51.

77

¢ Witutam Mier, Administrator of the Estates of Marcus .

. Andlauer and Fillanore Andlauer, Petitioner,

vs.

_ Union Pactric Raitroav Company, Respondent.

| iv, Responden

RESPONDENT *S STATEMENT, BRIEF AND

_ ARGUMENT. “ay

' PRELIM INARY STATEMENT.

| ‘At the time this brief went to press .on November 6,

1933, .petitioner had. served - upon respondent only a

valley proof of his proposed brief. Due to the short-—

ness of time intervening between thé dates of the receipt

of the printed record, | petitioner’ s brief (in galley form)...

and the oral argument before this Court; it is impos-

sible for respondent to await the final draft of peti-.

tioner’s’ brief -before completing its’ brief. - Hence, this ~

brief. must, of necessity, be confined to an answer to the

brief in galley form served upon a by pen oe

tioner, . is : °

Pe eet STATEMENT OF .CASE.

‘This is an i action brought - By ‘petitioner against. re-

spat for/wrongfak Gapth of petitioner’ > _ decedents, :

was’ not . ‘entitled - to ‘recover. From that judgment peti-

* tioner* prosecuted an. appeal’ to the Circuit Court of Ap- |

‘peals for the Eighth: Circuit, which. affirmed the :judg- |

“s. ment of the District Court (R. 73). Petitioner has brought

- the case- ‘to Sasol court ‘upon certiorari granted October

9th, 1933. - | i

_ “The evidence’ shows that on » Siaetiaibia: 11, 1927, Marcus

. and Ellanore Andlauer, husband ‘and wife,. while riding

\ aul it in their automobile, : were struck by one. ‘of respondent’ S

| ove ‘trains at a railway. crossing near: St. Marys, Kansas, and

- sustained’ injuries ‘which resulted in their death. At the.

ee “place: where . the accident’ occurred, respondent’ s railway |

: * track ran east and west. Located. to. the south of. the .

‘ai railway track and. running ‘parallel thereto was a high-

Way: known as. “‘U. S.:No. 40,’” from. which the view to

‘Tespondent’ s.track was clear and "unobstructed for at

, least three-quarters of a. mile. St. Mary’s College is lo--

eo cated north ‘of the “railway track, and-.entrance to it _

*. from the highway is provided ‘by means of a cross-high- .. -

ha way extending from Highway. No. 40 north into the col-

. lege: grounds. and: ae the railway - track at right

angles. . .

ae plat sheet in Felden (R. 30) sdetlie that the dis- -

-’ tance from the north edge of Highway No. 40 to the

, “- south rail of the. track is 71% feet. Seventeen: feet south

owns, . of the south. rail and at the east oes of the cross- —

¢:

3

way is a standard Tailway crossing sign. The area sur-

rounding the scene of the accident: is flat, open country

(see Deft.’s .Ex. *‘C,’? R. 36B) and.the contour of the

ground is such that the occupant'of any vehicle upon

either the cross-highway or U. S. Highway No. 40 would

havea clear and unobstructed view of railroad trains

approaching from the east for a distance # more than

2,000 feet (R. 34). .

On the day of the accident. the ition were trewel’

ing west on. Highway No. 40° in a closed automobile.

Intending-to visit their son, a student at ‘St. Mary’s

College, they turned north upon ‘the cross-highway and

were struck at the crossing by a westbound passenger

train operated by respondent, and almost instantly killed. -

The eaccident occurred on Sunday afternoon, at about.

3:30 o’clock. The-day was clear; cold and dry (R. 57).

‘The only eye-witness to the accident was Arthur N agle.

-- He was in an automobile traveling west on Highway No.

40, and was about 200 feet east of.the Andlauer car when

-the collision’ occurred (R.° 54). He testified on direct

examination that the Andlauer car slowed. up to make

the turn and then proceeded at a speed of not more than |

. 15 nor less than 10 miles per hour ( (R. 54) to the point

where the collision occurred: The witness testified that

is attention. was first attracted to the traba, as ‘it_ passed —

him ‘about 500 feet east of the crossing. On cross-exami-

nation he testified that the train was somewhat ahead

of him and that he was about 500: feet from the .cross-

ing when the Andlauer car made the turn into the cross-

highway, and that the train’ was traveling 55 to 60 miles.

’ per hour and the Andlauer car about 12 miles per hour

* (RB. 56, 57).

The amended petition is drawn in two. counts, the first

charging negligence causing the death of Mareus" And-

i

4

, lauer, and the second charging < negligence causing the —

_ death of Ellanore Andlauer. Identical charges of negli-

gence are made in each. count. It is charged that the ©

respondent_ was negligent’ in operating the train at a

high: and dangerous rate of speed; in failing to. warn

‘ after respondent knew,gor could have known, that the

decedents were in a position of peril; in failing to ‘slow.

or stop the train- after the peril arose; in failing to slow

the train while passing the college and‘entering the city

of St. Marys; and-in failing to sound a whistle or ring

a bell within eighty rods of the crossing | (R. 9,. 10).

The answer is a denial of the allegations. of negligence...

and a plea of contributory negligence (R. 17, 18).

At the close of petitioner's evidence the trial court

ruled that the decedents were guilty of contributory -

* negligence as.a matter of law. While no ‘express ruling

was made upon respondent’s requests (R. 62) for per-.

emptory instructions in the nature of demurrers to the ~

evidence, -the court sustained respondent’ s motion in the

alternative for a directed verdict or for a. dismissal, of

the cause (R. 62), and entered an order ‘dismissing the

_cause with prejudice (R. 63). * :

Us Upon appeal, the Cireuit Court of Appeals held that

it was unnecessary to consider the, fesue of. primary neg-

ligence (R. 67, 68); that Marcus Andlauer, the driver

‘ of the car,’ was guilty of contributory: negligence as a

matter of law because the undisputed facts show vio-

w os

lation of his duty to ,stop, look and listen before driv-—

ing’ into the path of the approaching train (R. 68);

that Ellanore Andlauer was also guilty of contributory

negligence as a matter of law, not upon the principle

that the negligence of the-driver should be imputed to

her, but because she, independently of the. driver, was

charged by law with the duty to keep a lookout ” ‘rail-

o

6.

way crossings and to give timely and effective warning

to the driver (R. 68); that petitioner is not entitled ta

the benefit of -any presumption that Ellanore Andlauer

exercised due care, becausé the physical facts overcome |

the presumption and establish her negligence (R. 69,

_ 70); that the doctrine of discovered peril (the last chance

rule) cannot* be invoked, first, because the train crew —

would have been warranted in assuming an intention

on the part of petitioner’s decedents to. stop (R. .71)

and, second, because there was no evidence that the

train crew did, in fact, discover the - alleged peril (R.

71); that-the alleged error of the. trial court in dismiss-

ing the case with prejudice rather than directing and —

requiring the jury to return a verdict for the respond- —

ent is purely technical, could not possibly have prejudiced .

the petitioner, and was waived because the exceptions

saved at the trial did not-call the attention of the trial

. court to ‘the specific error alleged (R. 72, 73).

The issues presented upon. this writ of certiorari in-

- volve consideration .of the contributory negligence of .

both decedents; the claim of petitioner that the ¢ase is:

a proper one for the application of the last chance rule; .

and the claim that the alleged technical error of the trial

court in dismissing the case rather than. directing a ver-

dict was preserved for review, was prejudicial to the

petitioner, and violated his rights under the Seventh

Amendment to the Constitution of the United States.

SUMMARY OF THE ARGUMENT.

. | I.

Sites Andlauer was guilty ‘of conuiloceny negligence :

as a matter of. law.

The accident: occurred in broad daylight, at a crossing

- familiar. to him, and where he: had a view of the ap-

proaching train for a distance of more than 2,000 feet.

It was his. duty to. look, listen and yield the right-of-

way to the train. .

Sliiaeiae & Ohio R. R. Co. v. Goodman, 275 U.

S. 66. ’

- Railroad vy. Houston, 95 U.S. 697. |

Bradley v. Mo. Pac. Ry. bo., 288 Fed. 484, 487.

IT.

Ellanore Andiauer_ was also guilty of sacrannaad negli

gence as a(matter of law. |

It was her nitirmative duty to maintain a becliniel for

approaching trains, and to give timely and effective

’ warning of danger to. her husband; and this she failed .

to do. |

Bradley v. Mo. Pac. Ry. Co., 288 Fed. - (C. C.

A. 8).

Chicago 2 ae Ry. Co. v. ‘Sellars, (C. C. A. 8) 5

‘éd. (2nd) 31. 3

Kutchma v. Reilwos Co., (C. ¢ A 3) 23 Fed.

a. (2nd) 183. :

'. Parramore v. Railroad, (C. ¢. A. 8) 5 Fed. (2nd)

912.

Noble v. Railway, (C. C. A. 8) 298 Fed. 381.

2

Atchison, T. ¢ 8S. F. Ry. Co. v. McNulty, (C. C. A.

8) 285 Fed. 97. | : 3

Davis v. C. Re 1. & P. R. Co, (C. C. A. 8) 159

-*. Fed. 10. - ide

Phillips v. Davis, (C. Cs A. 3) 3 Fed. (2nd) 798.

_ Hall vy. Railway Co., (C.-C. A. 3) 244 Fed. 104.

* Brommer vy. Railway Co., (C. C. A. 3) 179 Fed.

O77, 581. . cs - Ge

Phila. & R. Ry. Co. v. LeBarr, (C. GC. A. 3) 265

Fed. 129. - me a

Southern Ry: Co. v. Priester, (C. C. A. 4) 289

Fed. 945, 949. | s |

Pennington vy. Southern Ry. Co., (C. C. A. 9) 61

_ , Fed. (2nd) 399. a

Iluckey v. Southern Ry. Co., (C. C. A. 6) 242 Fed.

468. a

Summers v. Denver Tramway Co.,-(C. C. A. 10)

43 Fed. (2nd) 286. '

Garrett v. Pennsylvania R. Co.,-(C. Cz A. 7) 47

Fed. (2nd) 10. *- zs :

Little v. Hackett, 116 U. S. 366.

IL.

Respondent cannot be held liable -under the last chance

Guam =. => 0) ye

= A. The Andiauers were not shown to be oblivious to danger until .

it was too late to warn them, and the train crew had a right to as-

sume that they would not go into the path of the ap ing train.

IWinois Central Ry. Co. v. Ackerman, (C. C. A. 8)

‘144 Fed. 959. harks :

‘Toledo, St. L. d W. R. R. Co: v.- Allen, 276 U..S.

165, 173. ors re se

B. If Ellanore lauer warned her husband, there was no duty

. on the part of the\train crew, under the last chance theory, to warn

_* her, and upon that her death was brought about solely by

the negligence of her husband in failing to heed the warning, and

not by the negligence, under the last chance rule, of the respondent.

2

There. is no merit to -petitioner’s conténtion that his rights

under the Seventh Amendment, to the Constitution were

violated by the action of the trial court in dismissing the |

case with prejudice rather than directing a verdict in favor

of respondent:

A, The exceptions: _— iy petitioner did not direct the sein,

of the trial court to the claim that a dismissal would constitute de-

’ nial of the right of trial by. jury, and therefore the point was not

saved for review. |

ov nited States a i. 8. Fide lity Co, 236 oe s. 512, .

a2,

: Fillippon v. Aidit Vein Slaté Co,, $50 U. 8. 76, 82.

Querini Stone. Coo VE (| ‘arlin Construction Co., 248

USS. 334, 34s. . :

Beaver vo Taylog, WRU. S. 4G, 55,

Robinson & Co. v. Belt, 187 USS. 4, 50.

Harvey v. Tyler, 2.Wall, 828, 389,

Beckwith vo Bean, 98 U.S. 266, 284.-

Mouler vy. American Ins. ix. WLU. s a , 337,

, Bowman vy. Railroad, 1st Fed. G07 (. « \. 8).

‘

B. If it be conceded ‘that the trial court's action was erroneous, _

and was properly preserved for review, the alleged error was one

that did not affect the substantial rights of petitioner, and, ‘under

the statute, does not justify reversal of the cause.

40 Stat. at L. 1181 (Tit. 28, See. 391, U.S. C./A.):

Ciasoline Products Co, v. Champlin Co., 283 U.S.

494, 499. : ;

Coughran v. Bigelow, 164 U.S. 301, 307.

Ceutral Transportation @o, v. itleew’ s Car Co.,

139 U.S. 24, 39. ar

Oscanyan Vv. Arms Co., 103-U. S. 261, 264... |

Herron v. Southern Pacific Co., 283 U.S. 91.

Bohenik v. De law are & Hudson Co., 49 Fed. (2nd) |

rig: 724 (C. C. AL 2) (certiorari denied, 284 U..

S. 643).

ARGUMENT. ——si,

oo

; Marcus Andidher was guilty of -contributory negligence “

a matter of law.. 7 | eee

*So far as Mareus. Andlaver is concerned, this record

presents but another tragic instance of the driver of an ”

automobile running a losing race with death at ‘a railway —

— crossing. The accident occurred ‘in broad daylight, in

open, level country. Andhuer knew the crossing. He had’

a view of the track for a distance ef more than’ 2,000

feet to the east. It was his plain duty to look before 7

_ he crossed and -to yield the right of way: to the approach-

ing‘train. He either failed to look, or he took the: chance

of crossing in safety. In either event the law is well set-

tled that’ no negligence of the railroad company, -either |

in failing to ‘warn ‘or otherwise, will give rise to a

submissible jury issue. oy Wk

Mr. Justice Holmes, in the case of Baltimore & Ohio

R.R. Co. v..Goodman, 275 U.S. 66, under facts far more’ :

favorable to the plaintiff than the facts presented: in the -

/present record, declared (1. ¢. 69) :_

“When a man goes upon’‘a. railroad track he knows |

that he goes to a place. where he will be killed if a

train comes upon him before he is clear of the track.

He knows that he must stop for the train, not the

. train stop for him. Under such circumstances _ it

seems to us that if a driver cannot be sure other-

. Wise whether a train is ‘dangerously near he must

‘stop and get out of his vehicle, although obviously

he will not often be required to do more than to stop

and look. It seems to-us that if he relies upon not :

hearing the train or any signal and takes no further

7 ” a ; ; /

“40

c

-

-preeaution, he does so at his own. risk. If at the last

moment Goodman found himself in an emergency it.

was his own fault that he did not reduce his speed

= earlier or come to a stop. It is true, as said in

3: Flannelly vy. Delaware & Hudson. Co.,. 225 U.S. 597,

i 603, that the. question of due care very generally is*

‘left to the jury. But we are dealing with a standard /

of eonduct, and when the standard is clear it should,”

be laid down once for all by the courts.’ yo ‘

Again; in Railroad v. Houston, -95 U.S. 697, Mr. Jus-

‘tice Field, dealing with a record where a pedestrian was

killed while walking across the track at a place where

a train could have been seen for a distance of three-.

quarters of a mile, reversed a judgment for the plain-

“tiff, declaring that the trial court should have sustained

2a motion for a direct ed verdict. In the opinion (1. ¢. 702)

itis stated: . = 9 7 |

“The ice: of the engineer to sound the whistle |

or ring the bell, if such were: the facts, did not re-

lieve .the deceased fram the necessity of taking

ordinary precautions for her safety. Negligence. of

the company’s employees in these particulars S was’ no

excuse for negligence on her part. She was bound to

listen and look, before-attempting to cross the rail-

road track, in order to avoid an approaching train,

and not to walk carelessly into the-place’ of possible

| danger. Had she ysed her senses, she could not have

- failed” both to hear and see the.train whieh was

coming. If she omitted te use them, and walked

‘thoughtlessly upon the track, she was guilty of eulp-

able negligence, and so far contributed to her in-

juries as to deprive her of -any right to complain

_of others. If, using” them she saw.the train coming

and yet undertook to cross the track, instead of

‘ee . waiting for the train to pass, and was injured, thie |

consequences of het tilistake and temerity cannot be

Dial i

b

* . cast upon the defendant. No railroad company can

‘be hekd for a failure of experiments of that kind.

If one chooses, in such a position, to take risks, he

must bear the possible consequences of failure. Upon

the, facts disclosed by the undisputed evidence in the

case we cannot see any ground for a recovery by the

plaintiff. Not even a plausible pretext for, the verdict

can be suggested, unless we wander from the evi-

dence into the region of conjecture ‘and speculation.

Under these eircumstances, the court: would not have

erred had it instructed the jury, as requested, to-

render a verdict for the defendant.’

The Cireuit Court of Appeals for the Kighth Circuit,

in the case of Bradley v. Missourt Pacific R. R. Co., 288

Fed. 484, in an opinion by the late Judge Kenyon, and

_upon facts similar. with those in’ the ease: at bar, thus.

expresses the rule (hc 486, 487): 7°. | ts

‘The only reasonable inference that can ‘be drawn

from their conduct is that they did not look, or if:

‘they did and saw the. train, deliberately took the

chance of beating.it over the. crossing. If the former, |

they were guilty of gross negligence—if the latter,

gross recklessness. If parties driving automobiles

‘persist in gambling with death at railroad crossings,

their estates should not be augmented by damages if

‘death win.’ Care, not chance, ‘is the requisite at- rail-

road crossings.”’ | . sat hte

Under the undisputed facts, with a clear*°and unob-—

structed view in broad daylight, it cannot: be disputed

_ that had Marcus Andlauer looked even after he had

turned into the cross-highway, he could have seen the

approaching train in ample time to- have stopped his

“* automobile and thus have avoided the collision. If he

looked and saw and took the chance of beating the train

over the crossing he. was guilty of ‘‘gross recklessness.”’

If he failed to look then his negligence ‘in’ failing so to ~

do bars recovery. Upon either theory Andlauer stands

convicted of such contributdry negligence as a matter

of law as bars his recovery and, therefore, the action

of the trial court in taking ‘the ease from the jury yas

proper. . ; 2 | i

II.

‘ine Andlsines. ‘was also pip of contebutory negli-

gence as a matter of law.

Hillaiore Andlauer, the wife, was also a traveler upon

the highway. She was charged with the positive duty of

exercising due care for her own safety. Her contributory.

negligence does not arise upon aily theory that the negli-

-gence of her husband must be. imputed to her. Inde-

pendently of his negligence the law imposed upon her the

positive duty to make use of. her senses of sight and

hearing—to maintain a lookout for- approaching trains,

and to warn her husband of danger at a time when such

” warning would be effective. It is upon the ‘theory that

_ the evidence -conelusively shows her- violation of ‘tliat

positive duty, that both the trial court and the Court of

Appeals held, as, a.matter of law, that ehe was guilty of

-.contributory negligence. °

The Court of Appeals, in afirining the judgmerit as to.

Ellanore. Andlauer, supported its decision by a long line

of authority, citing cases largely from the Eighth. Circuit.

Chief among them is Bradley v. Mo. Pac. Ry. Co., 288

Fed. 484. The facts in that case are almost identical

_ with those in the case at bar. | ,

-

13

_. There the’ court holds that Bradley, ‘a guest in the

automobile, ‘‘is conclusively shown by the record to have

the

been guilty of contributory negligénce,’’ because of his

) failure to give timely and effective warning to Brown,

driver. The late: Judge Kenyon, in ‘writing that. .

opinion, calls to its support. a Wealth of authority from

both: state and national courts, and decides (1. e 495) .

‘‘The duty was upon him in approaching this cross-* ,

_ ing.to. ascertain the approach of a train by exercising ‘

his faculties of sight and hearing at such a place

and within such distance from the crossing as.would

be effective. He could not rely upon Brown to pro-:

tect him. The duty to-look was as much upon him as

.upon Brown. There is no’ partition in the usual

..Ford car separating the front and rear seats; no

reason why he conld not -have warned Brown in time.

-- to stop. . If he failed to look where he could effec-

tively see, he was guilty-of. negligence. If, seeing, he

failed to warn Brown, he was “equally guilty -of -

negligence, and the negligence of the railroad .com-

‘pany would not excuse him. While the railroad. com-

pany is under legal obligation to give warnings at

crossings, parties cannot rely thereon and fail to

exercise their own faculties for protection. *

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, Grand Trunk Ry. Co. v. Ives, 144

U. S. 408, 417;. Union Pacific Railway Co..v. Mc-

Donald, 152 U. 8. 262, 283; Railroad Co. v. Houston,

95: U. S. 697; Baltimore & Ohio R. R. Co. v. Griffith,

159 U. §. 603; Dernberger v. Baltimore & O. R. Co.,

260 Fou, #1." ~: |". gs

|

i

!

-

a’.

~ pe

The Bradley-decision has been adhered to, not only in

the Righth Circuit, but in ‘many other Circuits. It would .

‘burden this~ rief unduly to diseuss the. facts of the —

few of + aaa from. the Right Circuit a

4:

CRiage de E.1, Ry. Co. v: Sais, Fed. (nd) 31.

_ Kutchma v. Railway Co.; 23 Fed. (2nd)-183._

' Parramore v, Railroad, 5 Fed. “(2ndj 912, . =

Noble v. Railway, 298 Fed. 381. -

Atchison, f. é 8. F. . Ry. Co. e. McNulty, 285 Fed..

Ve eo,

r numerous cases.

are:

; "The cases from the Third Circuit adhere to o the same.

rule: ) :

Phillips v. hake, 3 Fed. (2nd) 798.

Hall v. Railway 244 Fed. 104. ;

| Brommer v. yet 179 Fed. 577, 581..

Philadelphia & R*€o. v. LeBarr, 265 Fed. 129.

’ .

-< The Fourth Circuit, in following | thé rule, cite for

" authority the Brommer _ _case eve and others, as

ee illustrated by: : -

‘Southern Ry. Co. v. _ Priester, 989: Fed. 945, /949.

a. 7!

The lsdioit een in the Fifth. Cirenit upon the subject

is Pennington. v. Southern Ry. Co., 61: Fed. (2nd) 399,

_ where the: court cites the Bradley. case and the case of

~ Garrett. v. Pennsylvania Ry. Cé., (C.-C. A.- 7). 47 Fed. «|

-; (2nd) 10,’ in support of the principle here being con- }

sidered. ©. * " ace

* The only. decision we sie found from the Sixth Circuit 4

ae the case of Flurkey v. Southern Bi Co., 242: Fed. 468,

ear ‘

A » *

wine although the precise point here considered . is NOt ;

‘directly involved, the court’ cites the Bronimer case in

support of the duty of the traveler to _ atop, lg and —

listen. . ¥

*. The Tenth Circuit, in tlie. case of Suininets v. Denver |

Tramway Co., 43 Fed. (2nd) 286, holds that the guest in

an automobile who neglects to maintain a lookout and to

warn: the driver, is guilty of contributory negligence, and

~ —in support of its ‘concluston cites not only the ‘Bradley

case, but also -the Brommer, LeBarr, Noble, Priester,

Sellars, and Parramore cases (supra) and the older case

(from the Eighth Circuit) of Davis V: at iy R. £ &

_ P. R. Co., 159 Fed. 10. 7

‘The First and Second: Circuits, so far as we are ‘in

formed, have not yet considered the point. - |

Tt will thus be seen that the overwhelming . weight of

authority as announced by ‘the various Circuit Courts of

Appeal in the decisions referred ‘to, abundantly supports

the Eighth Circuit rule that the. guest in an. automobile

is to be regarded as any other traveler upon the “high-

way, and is charged with the, positive duty of maintain- ©

ing:a lookout at railway crossings, and' of _ warning the oo

driver of the approach of a train. . :

’ The Petitioner here, under ‘Point V of his brief, coni- we

plains that the. rule of the Eighth and other ; éircuits is

__in conflict with the rule as announced by the Cireuit Courts

of Appeal for the Seventh Circuit in one case and in the

Ninth Circuit in the other case. ;

: From the Seventh Circuit he - ‘eites the case of iis

“Co. v. Divine, 39 Fed. (2nd) 537. The facts in the Divine

ease distinguish it. from ‘the case at bar, and from the -

facts existent in all of the other cases to which we have i.

referred.. The question there involved was whether or

not a wife, riding on the front seat of an automobile with

.

Ss

f

eae

her sailed was under ade ‘ maintain a lo and

~ to warn.when the evidence showed that- her attention was

directed to the care “ of “ner ‘children... The Kutchma,

Prie er and Noble cases. (supra) are cited with approval

in ages of the general rule; bgt (1. ¢. enceice ‘it is —

out that: Carre ie at

~&

ends upon the fects: re

‘ere was this woman, riding be-,

But, again, this

‘particular case.

side. her husb

holding on her lap her-3 year old’ child. «On the back ©

seat were three other of their ‘children of. tender

years. The husband was an experienced driver, and

nothing appears why she might not safely intrust

him with that tik. To one knowing about children

it must at ‘once be plain that this mother, specially

‘charged, as no doubt she was, with their care on this

journey, was quite exclusively occupied with that

duty. Thé-care of the one on her lap would doubt- -

less have been quite sufficient to engage her attention ; ,

i . but, when this is supplemented: by: the care of three .

evident that it would leave little, if any, opportunity

for ae to indalge in ‘back seat ‘ooo . This

for places of danger.” “(tallies ‘ours.)

‘The ‘Diving case, therefore, cannot be said to be in con-

flict with the rule announced in the Bradley case and. fol-

lowed by so many other decisions. There is no evidence

im the case at bar ‘which could possibly bring it . within

general rule applied in the Divine _

_ the excep i

ease. ec oe os Seite. a ee

The Siereath Cireuit does not aaleatialin views that are

out of harmony with the general rule. This is illustrated.

by ond later case of Garrett. v. rer, R. Co., 47

eS ee ee ee

on the front .seat of a Ford car, ©

Ma

=

- Ayr

“Fed. (ony. io, in which the Seventh Circuit “cites: ‘atid

‘follows the Bradley case in holding that the dccupant of

the back’ seat of | an automobile, driven: by her mother, .

and: killed at a railway crossing . under circumstances quite’

similar’ ‘to _those in the’ case at bar, owed. the affirmative

duty to: look and to. warn, and that her neglect of that

* duty is ‘egntributory negligence that defeats. fecovery for

her death. There is, therefore, no possible conflict be-.’ _

tween ithe opinion of the Eighth Circuit in the case at bar /

and the holding of the Seventh Circuit i in the Divine case..

We come now.to the decisions from: the’ Ninth. Circuit,

with: which ew: claims the decision here is in con-

flict.

4 «The first is Southern Pacific Co. v. Wright, 248 Fed.

261. The opinion was: written by District J udge Dietrich.

Circuit Judge Hunt. wrote ‘a. vigorous dissenting opinion

which paints out the obvious weakness of: the majority,

- opinion, and its utter lack of harmony with the prevailing

_ general tule. followed in. the ‘eases from, the ‘other cirenits

_referred to, supra.

The Wright case récognizes the principle that the guest -

in an, automobile i is under a. positive: eduty, to exercise due

-teare. It. differs from the Bradley decision and others

-only upon the question of what is to be done by the guest

‘ to free him from a charge of contributory negligence.

The majority opinion holds. that it is the duty of the

guest to remain silent, because, 1 reasons: the court (hk @

Saas & Ne

a ‘“‘Any other coursé is fraught with’ danger. Inter-

'. ference by laying hold of an operating lever, or by

exclamation, or even by direction or inquiry, is gen-—

____eralty-te—be- deprecated; in the long run, the greater ~ |

eli lies in a eS

ae

~ Assuming the soundness of. ‘on éourt’ 8 conclusion thus

expressed, the ruk of silence fas alwiiys been: limited .

to those cases where an unexpected” emergency arises

‘(see the Bradley case, |. e, 495). It. certainly has no

‘application in the case at bar. Here there Was no emer-

| 1 . _ geney shgwn. Here, Mrs. Andlauer knew, from the time

| - she left: Topeka; that she was to é¢ross this track ; und °

' it was her duty, both ‘before -and after fhe car turned ..

| _ Jinto the’ eross-highway, to ascertain if a. train was

approaching. yon evidence | - showing unusuib cireum--

invoked, that case clearly ves. the petitioner no support:

ie Rail ay Co, 8 Fed. (2nd) 452, That, case is disti

| -from the case at bai because in that Case Miss 'T

ge did: in fact, warn her father, the driver, by .exchuiming,

| “Oh, Daddy, there’s: the train!” and. baa ter Ae j

uished- ;

| “Was such as: to suggest | ‘rat reasonable minds alaeut dif-

8] fer as .to her. responsibility ‘to watch and: to wart, The

24 trial court (4 Fed. [2nd] 562): followed the ‘Bradley ease

es v - ms

versing the District Court, held that the question of her

contributory negligence was for the. jury.. The ania

concludes:. Meso age. — ee

3%

a Ff

“Considering, | _then,- the age of the decéesed, her

"position in the car, the fact that the cir was driven.

by ‘her father, the. fact that she had no notice thats.

he «was- either incompetent or reckless, and ail L_ thes.

ie surrounding circumstances, swwe-have tittle hesitation © ©

=

yo

we n saying’ that the question of her contributory negli-:

gence was one of fact-for the jury.” (I. c. 4555"

; italies. me) : ‘.

7 ° : “ae |

ob

fools

“

stances upon which the a inethe Wright’ case could be —

‘

A > F

roa, MB Pee Diet 0" - 6 EO BNO mes ete

ae che “he next decision. cited by petitioner “is ‘Tienholm. v.

rm

‘enholm —:

‘in sustaining a demurrer. The Court of. Appeals,cite re-—- - +

te

NNR a. fidmincine unierdedt name Eke -

a: - 5

be

A beta a sa

aah ‘hen analysi is is made of the pecitliar - facts there in- |

Py

’

a

ad “2 . aes | .

‘we ; r- : ‘ * Crees

. ; e . = . 7 5 f .

a

‘Thus it is evident that. -the court decided the Tren-

holm case- upon the particular circumstances. of .the ‘evi-

- dence before it. There: aresno- such distinguishing or

veil cirenmstanées in’ the case at bar. . But, if the

ruling “the Trenholm case is as petitioner contends,

then itfs in conflict with the decisions in all of the other — °

‘circuits; which express the sounder rule,

The last case ‘relied upon by pense : ‘is the Ninth |

~

_ Cirguit decision of Southern Pacific: Co. 5 Stephens, ;” | ‘

“edi, (2nd) 182.. Phe Stephens case cannot be consid-

ered tupon the question- because the state of. the ree-

ord is not shown: an ‘the ‘opinion. It. is not shown that”

Stepliens” ‘Waraied, ¢ gor that. he -had opportunity to. warn.

The? ‘surrounding? cixeunistances”’ are not stated. ‘The

opipfor merely cites ‘the Wright case and holds. that: the |

sion ot Stephens’s Ss. contributory -negligence was: for

£ volved, We can’ see nothing ‘in these three decisions from _ pe

” the Ninth Cireuit seriously conflicting with the Views | ex:

-__ bressed in_all_ of the-other “circuits in the ‘cases cited.

“Itt this court regards them ‘as conflicting, then we have

“no hesitaney ‘jn urging that. this court should oo the

majority rule : \ ie

‘The majo ¥ rule is thovoudily ent: It recognizes

_and enforées’ the duty of the traveler upon the highway ~

to observe the movements of trains at railway crossings ae

and to. exercise a egree of care for his own .

: ty. It enforces ‘the duty of. every traveler to. know.

that’ it is impossible to stop the train, but easy to ja

~ the automobile. - ) *.

~ These’ principles have been ‘thersaghi? catablicheid by

this court, as ‘applied tothe driver, in a long line of

decisions of. which the Goodman’ case (supra) is a a. leading.

. -@

example. They should also be applied to.the other ocecn-

_pants of niotor vehicles. ‘Except in those cases where

_ the gecupant is in . the position of a passenger for

hire (see Little v. Hackett, 116 U.S. 366), the publi¢

- welfare and’ ‘the safety of the traveler upon the high-

way | demands thgt the guest maintain a .lookout, and

that he warn when. warning’ would be effective. No. other

rule will ‘operate to. limit the ever mounting casualties

that occur from, automobile accidents. The rule of silence -

is limited to those cases’ where the emergency is*sudden,

and a. warning might prove to .be disconcerting.

The Court of Appeals, theréfore, _was-tight in: aati

‘that the -reeord _in_this- ease conclusively. convicts Ella-

. nore_ Andlauer ‘of contributory’ negligence as, a matter

» =gf- ta we Se ie Se : i ‘ | if : ;

a ms be held Table i the last chance '

There is no ‘room in this record for the application of.

the last chance me ine. From the moment the -auto--

~~ mobile turned into. She cross-highway, it was. traveling

at a speed of. only 12 milés per hour (R. 57), while the

- train was approaching at the rate. of from. 5 55 to 60 miles _

_per hour. The train, traveling at a speed approximately -

5 times’ greater than that of the automobile, is thus con--

‘elusively’ shown to have’ been only 357.5 feet from the é

-erossing at: the time the automobile turned into the |

cross-highway, a distance of: 71) feet from the crossing:

The evidence, however, shows that it was impossible to

stop the train | Ww ithin: less than 500, to 1,000 soot (B, 59).

. eo @

“ye el . as =

ATT gh ORL M toa me eacnent«

\

21

Therefore, it cannot be waid that the train oould have

Stopped before reaching the crossing.

Petitioner’ s argument, however, is that, although the -

train could not’ stop, a warning could have. een given. i

To that” argument there are two condlusiv ye, answers.

In the first place,. until’ the automobile reached a point bi?

| on the cross- highway wher re it.-was apparent, either. that” |

“it could not thereafter r stop before going into the path of -

“the | on-eoming train, or that its occupants: were oblivious

fo their danger, there was no duty, under the last chance

*- doctrine, to warn them. This is trae because, labsent.

something to indicate obliviousness, the train crew had the

right to assume that the travelers Would exercise: ordinary

care for their own safety and would. not heedlessly drive —

. into: ‘danger. oa ORS

' may be*said that the

appearance of .the obli

_ Under: the record here; there is neither pleading ner

proof of obliviousness.. No’ fact appears from which it.

proaching. ear exhibited any

iousness of: its occupants.

‘Petitioner, without evidence of obliviousness, and with-

out ‘even having alleged it in his amended petition, now

seeks to torture respondent’ S answer into an admission e.

of their obliviousness to danger. - The’ answer, however,

. is net. susceptible of that construction. There it is only, . °

pleaded that the Andlauers failed to look—not that there

was anything in their actions which brought home to. the

engineer the fact that*they were oblivious to: danger.

' ° The answer alleges only the facts as they appeared to a

- -the pleader after the event, not as they appeared to the

_ train erew before the accident occurred.

Absent, therefore, either pleading or proof. of. oblivious-

ness, the train crew had the: right to assume that the |

automobile would stup. When it finally became apparent .

| that they would not stop, it ‘was then too late for ‘a’

°

a

* 8 .

‘ x ~ °

¢ e f . . ££ 2%

. Se . . . @ eM Se. <

‘warning to save them; because a warning. at that time. —

would come only at a time when they had reached the.

point of actual danger, the point syhere ‘they themsc#s |]

- gould not-stop. © * |. Niemen: as

These views. are well supported by authority, In the

case of ‘Tllinois Central Railroad Co. v. Ackerman, 144

2 Fed. 959, the exact situation here presented arose, .

Ackerman drove upon, & railway track in broad: daylight,

‘at a point. where he could have seen the approaching

traintas easily “as the train crew could have seen him:

- It was there argued that the train crew owed him a duty, . |

under the last chance -rule, to warn him. The opinion

was. written’ by Jadge Ifook, and was’ concurred in by

Mr, Justice-Van DeVanter, then a- member of the court

-in Kighth ‘Circuit. The court, denying reeovery under

that theory, holds (I. ¢. 961, 962): Satie

.

@ -:

-f

-

ae

*. The men upon the train were not obliged under

— the-cireumstances to anticipate his negligenée. They-

. gould very -well have assumed either that he knew.

7 of the approach of the car#.and. intended to stop .

cat the-customary safe distance or that: he woul: :

look when near the ‘track and then. stop before.

going upon it. They did not know: that he was in-

attentive and.absent minded, nor did they know of

his purpose to contintte. his onward course. He was

not ina place of danger until it was too late to

prevent -the acctdent. The negligence ‘of the em-

“uae ie 2

.

-ployees of the railroad company and that of “the de-

ceased were concurrent and continuous down to the ©

oe “very ‘moment ‘Of the collision and there is no roonv

for the’ contention that the negligence of the latter _

“should be regarded as a known condition upon which -

Pe

‘the negligence of the former sibsequently operated:

(Italics ours.) | pee Re

eS

;

ee

. we _ : ps

REREAD rte Vi By SIRI comet he, cpa horon. ion A

Oe ea Pe

This court entirely agrees with the degision in the

i? Ackerittan case, and adheres to thie \rule ‘thidt;- unless there

be knowledge of obliviousnesggrought home to the train

erew by some act or conditidn from which it should be

realized. that obliviousness. ,does* in fact exist, the last

— chance rule does not apply. In Toledo, St. L. & wee,

R. Co., v. Allen; 276 UL 8, 165, 173, this court cites the ae

~ Ackerman decision with. approval, and rules: |

“There is nothitig to sustain a finding that plain-

tiff was in any danger other than such as is: usually

‘incident to his eniployment. or that any member of — |

the train crew. knew or had any reason to*believe

- that he was oblivjous of the ‘situation Illinois Cen- oe

_. tral Railroad Co. v. Ackerman; 144 Fed. 959, 962. ;

a. - In the. absence of. knowledge on their partgthat he

— Was in a place®&vhere he was liable to be suck and

“oblivious :of that danger, they: were. not required to

- vary the switching practice’ customarily followed .in-’

' that yard or to warn or to: take other steps’ to: pro-

. tect him. There is no evidence to: sustain the allega-

' tion that the other employees saw, or negligently

‘failed to discover, plaintiff: in a ‘position of. peril

and oblivious.thereof.’ There was -no foundation for

a finding in- favor of the: plaintiff ‘on’ that issue.’’ .

BB! 0 (italics ours) ane | ‘

e -

cay ROPER SaeReCreae

Lo

Ss

i «

’. In the case at bar it cannot be said that there was any’ .

i . evidence to show ‘that, even if the Andlauers were obliv- -..

}. ious to danger after they turned into ‘the ¢ ss-highway,

«their obliviousness was apparent to or showfd have been -

discovered by the train crew.. Corisequently, they owed

‘nd duty, under the last chancé. rule, to warn until it

became apparent that the automobile did not intend to

_ Stop—and then it was. too late to’warn. Such a record

ee agents es

. . - . \

_ ° . . s ‘. ° \

> ’ * K 4

‘ f. 4 7 e fs .

é « \ 2 : /

---—-. \ - ’ a | -

° ie P een . . : .

‘ ‘ ’ -¢ «

: e oes : : .

: P : . Z e . an : : .

4 Bie S > mh

24 , : % 4

“does not make a case for the jury ‘finder the - chance —

rule. . :

Ih the’ — —e if Ellanor a a ‘did in fact see

and warn her husband, there was no necessity for further

ase “warning from the. train crew. ‘Upon , that theory, her death

-” “was brought about solely by her. husband’s failure to heed . |

pe ee the warning. The. rdspondent did not ‘contribute to his neg-

ligence in that respect, because, after the automobile

turned into the erpss-highway, all that was left for the ~ |

"4 train crew to do was. to warn—and warning had already

been given: by the wife... -

~

Upon either ‘of the two theories mentioned, therefore,

“the last chance doctrine does not apply. The Court of:

- Appeals properly so Aecided. The first reason given in

its opinion (R.. 70, 71), to. the effect that the train: crew

had the right to assume that the automobile would stop,

sufficiently disposes of the-point now raised. |

That being true, we are not concerned with the. further

holding of the- Court of. Appeals. that, because actual

knowledge of the train crew was not shown, the lest

chance rule does not apply. Hence we’ shall not indulge:

in discussion of the merits of that interesting ‘but wholly

immaterial question... We submit petitioner’s eontention ©

_7As without merit. | |

ANS ; ; . ; ‘ * bs

There is no merit to petitioner’s contention that his rights

under the Seventh Amendment ‘to the Constitution were vio. &§

_ lated by the action of the trial‘ court in dismissing the case ..- ~

with’ prejudice rather than - directing, a verdict. in favor. of . __

' respondent. eck cat ieee ad (cone aer ee

..The.xecord discloses that, at the close of petitioner’s

“evi ence, respondent requested ‘peremptory instructions ©

- in the nature of ,demuryers as to each count’ of the

petition (R. 62) and then. moved the court in the alter- -

_ native to direct a verdict for the respondent or dismiss °

the. case “upon the merits with prejudice (R. 62). The

trial court then reviewed the’ law questions -raised by the

_ demurrers, discussed, the Can case (U. S. Can Co. v..

’ Ryan, 39 Fed. [2d] 445, 8 C. C. A.) and the Bradley |

: case (Bradley v..Mo. Pac. Ry. Co., 288 Fed. 484, 8

Be C. A.) and sustained respondént’s motion. The order

entered upon that ruling was one of dismissal’ with

pene 5 co ee

The only exceptions saved by the petitioner were:

- “‘And the plaintiff then and there éxcepted to the

€ _ ruling of the court in sustaining the defendant’s

motion in the alternative and in dismissing. the peti- |

tion and causes of action, respectively, set forth in .

eounts one-and two of the petition, with prejudice,

. and in entering a judgment dismissing the said cause,

with such prejudice, and for costs against the said

plaintiff, for the-‘eason that under the pleadings

and the evidence the plaintiff was entitled to recover

and was entitled to have the cause submitted to the °

jury upon count one and also upon count two of the ©

plaintiff’s petition and the’ said exceptions were

taken severally and to the action of the- court. upon >

each count of the plaintiff’s petition.’ (R. 63,. 64;

- italics ours.) ere torre i)

he Spy" 7

6 . pe

— this ‘record the plaintiff insists that he was de- .

nied the right of trial by jury. guaranteed. by the Sey- -

enth Amendment to the Constitution of the United States. ’

For two reasons, the point-is without merit. ena

A.

: The exceptions wad by petitioner did not an the nlite .

of the ttial court to the claim that a dismissal would constitute

+ denial of the right of trial by. jury, “and hesiines the point was.

not preserved for review.

The ex¢eptions taken by petitioner. were not. davected

to the form of* the ruling. The reason assigned was one

applicable only to the substantive question of whether

.gr not a submissible issue had beer. tendered by the evi

. dence: There was nothing ‘in the exception. to challenge °

~ the attention of the trial court to the. Seventh Amend-

; ment. It was not even intimated that. petitioner was Com-

plaining because. the vourt did not go through the formal-

ity of requiring the jury to return a verdict. Had the

question been raised, opportunity would have been af- :

-forded, then and there, to require a. formal verdict;

and thus obviate a istrial. |

<i) an harmony with long line of decisions “ this court,

the Circuit ‘Court of\Appeals properly held (R. 72, 73)

that, even if a technical error had been: committed, the

absence of a specific exception | prevented consideration _

of the question, thus raised for: the first time in the _

court of review. The opinion comments : : el

“The rule is a jyst one and. affords ‘an opportu-

nity, both to the trial court and opposing: counsel, —

to correct the error, which in ‘the instant case goes

. only to’ matters of form.’’ (R. 73. ey

27

, This court has Tepeatedly held that an exception; to

‘preserve a point for consideration, must call attention

to the precise point relied upon for reversal.:Thus, in —

’ United, States v. U. S. Fidelity Cé., 236 U. §. 512, 529, Mr.

Justice Pitney, speaking for the court, said:

%

“The primary and essential function of an .ex-

\ ception is to direct the mind of the trial“judge to a

single and precise point in which it is supposed that.

'. he has erred in law, so that-he may reconsider it

~ and .change his ruling. if convinced of error, and ?

. ~ that injustice and mistrials, due to inadvertent errors,

may thus be obviated. An exception, therefore, fur-

.- . ‘ntshes no. basis for reversal upon any ground other

rae than the one specifically called tothe attention of

the trial court. Beaver v. Taylor, 93'U. S. 46, 55;.

Robinson € Co. v: Belt, 187 U. 8. 41, 50; Addis v.

. Rushmore, 74 N. J. L: 649, 651; Hojt v. United’ Se-

- ‘curity Life Ins. Co., 76: N. J. Tz 085, 593. And. the:

practice respecting -exceptions in- the federal courts’ -

in unaffected by the Conformity Act, Sec.:914, Rev..

Stat. Chateaugay Iron Co., Petitioner, 128 U. S..

044, 553; St. Clair v. United States, 154 §.°S. 134,

153.” (Italics ours.)

a]

ta. .

Again, in the. case of Fillippon v. Albion. Vein Slate

Co., 250 U. 8. 76, 82, the court, in calling attention: to &

the fact thatthe appellant was not accorded an oppor,

. tunity to present its exceptions at the trial, states:

..“To so hold would ‘be to overlook the primary

and essential function of an exception, which is to

_ direct the mind: of. the trial judge to the point in:

which .it is supposed that he has erred in law, so

that he may reconsider it and change his’ ruling if

"convinced of error, and: that injustice and mistrials,

due to inadvertent errors, may thus be obviated. —

ae

_

2B

‘United States v. U. S: Fidelity’ Co., 236 U. S.. 512,

529; Guerint Stone Co. v. Carlin Construction Co.,

248 U. S. 334, 348.’" * . ae

So, also, in Beaver y. Taylor, 93 U. S. 46,-55, the. court:

- One object of an exception’ is. to call the atten-

tion of the cirenit judge: to the precise point.as to |

which it-is supposed be has erred, that he may then _.

and there consider ii, aad give new and different

"instructions to the jury, ©! ‘nm his judgment it should ~

‘be proper to do so (citing authority). An exception

in the form .we are considering it entirely defeats

that’ object.”’ 7 oe ie ay

ewe

® “

‘ Se"

And in Robinson & Co. v. Belt, 187 U. 8, 41,,50, Mr.

H 7 ‘

Justice Brown comments:

“While it is the duty of this court to review the

action of subordinate courts, justice to those courts ~

requires that their alleged errors should be called: _

“directly. to their attention, and that their action

should not be reversed upon questions which the

astuténess of counsel. in this court has evolved from

- the record.”’

In many other cases the same principle has been de- 4

clared. A’ number of them have been: collected in our

“summary of the argument. - oe ‘sei ;

Applying that principle to the case at-bar, it will. read-

- ily be seen that the exceptiong_here went only to thé

substantive question involved, and did not direct the

| attention of the trial court to the fact that the supposed

-error lay in the form of the order by which the ‘court

. 29

terminated the case. Had it been. iach i a dis:

‘ missal, rather than a directed verdict, would . deprive

plaintiff of a jury trial, all: possibility of error could

and would have been avoided by. directing a verdict.

| B.

- Of it be conceded that the erial court's action was erroneous, and

not affect the substantial rigiits of petitioner, and under the _

e, does not justify reversal of the cause. — og

error thus :coinmit |

trial court by iN ag \exception, nevertheless the error :

to Title 28, Sec. 391, U. S. C. A..(40 Stat. 1188), as

follows: ‘oe , an

as properly preserved for review, ‘the alleged error was one that

° eon eel

‘On the hearing of any appeal, certiorari, writ -

of érror, or motion for a new trial, in any g¢ase,

civil 6r criminal, the court shall give judgment-after

- an-examination of the-entire record before the court,

without regard to technical errors, defects, or ex-

' ceptions ‘which do not affect, the substantial rights

of the parties.’’?> ° a a

It is ingonceivable. that the supposed error in the in- Sa

stant case could have affected the substantial rights of

the plaintiff. The error committed relates only to a mat-°

ter of form or procedure and not to a matter of sub. -

stance. Consequently, the point, even if preserved, is not -

“one that would justify. reversal. === SOC

os FY

im °

30

° ya

This court’ has repeatedly held -that: the rigats guar-

-anteed. by, the Seventh Amendment are rights founded ~

upon. substance ‘and not on form, In the recent, case of |

-s Gasoline Products Co. v. Champlin Ca., 283 U. S. 494, 498,

, ie said: : a eae : 7

**it is the Constitution which we are to iiterpret;

-and the Constitution is concerned, not with forni,

but with substance. All of vital significance in trial.

by jury. is that issues of fact be submitted for de-

- termination -with such instractions and guidance by

the cotfrt as will afford opportunity for that .con- . .

sideratioy. by: the jury which was ‘secured by the.

_-rules governing trials at common law. See Herron”

-y. Southern Pacific Co., ante, p. 91 (288 U.S. 91).

Beyond this, {he Seventh Amendment does not exact

the retentida® Mold forms of. procfdure. See Wal-

ker 'v. Southern Pacific Ro Co. 165-0. 8.598, 596.""

—— er

— ree ; as ’ ‘ . . . or : .

p——- And in the Walker caseycited supra, the court (Le.

496) declared: nee 5 ane a

“The. Seventh Amendment, indeed, does not at-

tempt to regulate. matters bf pleading or practice,

or to determine in what wily, issues shall be framed —

- by- which questions of fact’ dre to. be submitted to

a-jury.;/ts aim is nofto preserve mere matters of

fom and procedure, but sngstance of right. This

- requires that questions. of fact in common law ac- :

aoe . tions’ shall be settled by a jury, and that the court:

< _ shall not assume, directly or indirectly, to take from,”

the jury or to itself such prerogative. So long:as

this substance of right is. preserved, the procedure -

by which this result shall be reached is. wholly with-

‘in’ the discretion of the legislature, and courts may

not set aside any legislative provision in/this re-

spect because the form or action-+-the mefe manner:

in which questions are: submitted—is different from

that) whieh obtained at the common: law.’ " (Htalies

ours.)

o.

evidence tenders no issue’ of faet.: 5

Coughran vy, Riodiow: 164. U.S, 201, 307 ; .

Central Transportation Coe, ‘Pullman’ 8 ‘Car Ce,

aa

Oscanyan Vv. 4 Avine. Coz, 103-18: 261 4

Herron v. Southeru ore C ees U.S. M1.

Whee. nn itis. ‘recognized ‘that the only substantive

: "right guaran eed by the Seventh: Amendment ‘is the right

to’ have controverted issues of fact decided by a jury, ?

‘then all: Questions which might: arise .as to the method

by Ww hich the ‘trial court carries. into. effect his. decision |

tha the case presents no issues of faet, are questions

of form or: procedure with whieh -the Seventh Anitnd-

ment is not coneerned.

-o — Tt is true that. at common law a party could not he sub-

jected to non-suit against his will. It. is not true that -.

compulsory rion- suit violates the ‘Seventh Aniendment.

- In those: states where, by. statute, compulsory. non-suit

is adopted as a part of, the state practice, the federal

§

This court has nhways held ‘that ni. trial court does not

violate the Seventh Amendment by dee iding that the:

ISFULS. 439; eee ns

courts, under the Conformity Act, follow the same prac- _

tice. Boe Central Transportation Co. v. Pullman’s ‘Car

Co 0., supra. If compulsory non-suit. is violative - of any

substantive right guaranteed by the Seventh Amend-

_ment, then state - legislation, followed. by reason of the

Conformity Act, as illustrated by. the Central Trans-

.- portation case, overrides ‘the Constitution. ;

Since the right to take a case from the jury exists in

a proper case, notwithstanding the Seventh Amendment,

4 .

— $2

_! then the manner of taking the. case from the jury is a |

purely formal or procedural matter with which the Sev- «

° enth Amendment is not concerned. This point has been.

- ably discussed by Judge Augustus N. Hand for the Cir- .

cuit Court of Appeals, Second Circuit, in the case of -

Bohenik v. Delaware & Hudson Co., 49 Fed, (2d) 722,

724 (certiorari denied 284 U.S. 643). We -quote from

that. opinion: © Ss -

“There is no question that, if Judge Thacher had.

~ directed a. verdict instead, of dismissing the com-

plaint and jordering a non-suit, the effect of his

decision could not. have been doubted. -All thé New

York statute does is to make a dismissal at the

_. elose of plaintiff’s case the equivalent in effect ofa -

directed verdict 'if.the record contains no statement.

‘that dismissal was not on the merits. This, in our

-opinion,: does not interfere with the right. of trial

by jury, Here a trial with a jury was held, but

the plaintiff’s evidence was ‘insufficient to establish

her case..The.defendant might. have requested and

¢ Obtained the direction of. a verdict in -it% favor. In- ||

' stead of that, the court ordered a judgment which, *

under the New York ‘statute, is given the same ef--—

fect as the direction of a vérdict which the defend.

ant might have required, To. raise a mere mode af

- procedure into a’ substantive right and to hold ‘that

__. thé state statute. cannot furnish the equivalent of a

®. directed ‘yerdict though the effect upon the parties

. would be ‘the same seems to us to place form above —

substance. It would be quite different to direct judg- .

~ ment non obstante ‘verédicto where decision on a

motion for judgment made ‘during the trial had not

been’ reserved. That was in substance what was -

done -by the’ Circuit Court of Appeals in the Slocum —

ease and is not what was. done here. The Supreme |

- Court has sustained the practice of granting compul-

gory non-suits authorized by state statutes. Cough- —

a eet °

° ‘ . a

. . . : . a &

ran v., Bigelow, 164 U.-St 301, 17°8. Ct: 1t7,.-41.L.. "|:

nd, 4423 Central Transp. Co. vy. Pullman's Palace |

Car Co, 139 U.S. 24, 11S. Ct. 478, 85. LL. ld. 55.

“Tt is but a ‘short step from this. to treat suéh non-.

suits like directed Verdicts both: in cases where the

judge has in terms dismissed ‘on: the merits’ and in

eases where he has dismissed generally, but thp stat-

ute has given liis acts the same effect,

**The ‘Seventh Amendment does not require’ that

old forms of procedure myst be retained where the -

substantial rights of the parties are in fact pre. —

served. In re Peterson, 253 UL 8S. 300, 40 8. Ct. 48,

@ L. Ed, 919. We think that the Constitution does -

not stand-in the way of the application of Seetion:

482 ‘of the New York’ Civil Practice Act to: trials

in the United States courts.’ (Italies ours. )

_ The decision’ of ‘this court in Slocum v. New York Life

Insurance Co., 228 U.S. 364, does-not at all conflict with

the views so ably expressed by’ Judge Hand. In’ the

Slocum case the defendant moved. for a directed verdict

but that “‘mnotion was overruled and: the case was sub:

» mitted to the jury. Thereafter, following state ‘practice,

' Court of Appeals

the defendant moved for judgment non obstante veredicto.

. That motion also ‘was denied. On appeal the Circuit

& mined, that the motion for a di-

rected verdict should. fave been’ sustained, and that the ~

chse should be remanded with directions to’ enter judg- _

-ment for defendant, notwithstanding the verdict. This —

court held that such action was a re-examination of

‘issues of fact which had once been submitted to'the jury ©

, and thus ‘violated the Seventh Amendment which com-

_™ands that: ” : LEAS ab adaa week oe ee *

“No fact tried by a jury shall be’ otherwise re- |

examined: in any court of the United States than

\ -aceording to the rules of the common law.’’ (Italics

\ ours.) - +. . ek as ey ae

\

\

no ee . 4 : --% 9 %

The opinion in the Slocum’ case was written in 1912.

Since then, and in 1919, the Corigress has provided ‘3

that’ the ‘ap llate courts: may not reverse: except. for:

those errors which. affect: the substantial rights of the

parties. Since the Seventh Amendment is concerned

with substance and not with form, it- follows: that the’

. form of the ruling of the trial court could not possibly .

have affected the substantial rights of the plaintiff, and:

that: the point now raised is purely’ technical and: an

attempt to raise a mere mode of sae toa tc into a sub-

stantive right. ok

- :. The federal statute of Jeofaile (40 U. s, ‘Stat, at L.

‘1181, Tit. 28, See. 391, U. S.C. A, quoted supra). is of

| comparatively recent origin. Similar state statutes, how-

,ever, have long been in existerice,- and the state courts

‘have uniformty applied them to area identical ‘with

that ‘presented by this record, In 4 C. J. 1171, the rule

is ‘thus aarnagGae a , .

‘ | ne

. “It is held, generally under statute, that where |

the judgment was right on the merits, it will not be .

reversed for technical error in dismissing the coni-

plaint, in withdrawing the: case from the jury,. in

directing a verdict, or in not subniftting the ease,

or certain questions involved therein. to the jury.”

Sci ours.) . .

.

rey

A pars sjieatiot arose .in ‘pian ial, and the court. ‘in’

Hall v. Small, 178, Mo. 629, 634, — the statute of

jeofaile as follows: :

“The answer stated. no defense whatever, and the

court properly excluded. the evidence offered in ‘sup-

_port of the answer. The court erred,. however, in ©

: holding that the case was in equity, ‘and in discharg- -

“9 the: Sl The en — a cause of action |

. \

. crs a.

> ’

° ’ ° $ .

in ejectment. The -answer attempted to set up an

equitable’ defense, but it was not a cross-bill in

equity asking affirmative’ relief. The caso remained,

therefore, an_agtion at law. But that ruling of the

court does not constitute’ reversible error, under. the

© Statute, See, 865, I. S. 1899 (now See. 1062, R. 8.

Mo. 1929, the--Missouri. statute of jeofaile, identical

in Substance with the Congressional sfatute now Ve.

‘ing considered). For no’ defense being pleaded or

proved -the plaintiff was entitled upon the pleadings -

to'a peremptory instructiog to the jury to find for: —

her, and. the. judgment, therefére,.is for the right

party, and therefore it is affirmed.’’ (Ttalies and

parenthetical insert ours.)_ ee ea Pe ee ;

i

As So, also, in Barrett Vv. Shipley, 206 Pace. 430,. 431, ‘the

2] Supreme ‘Court of- Montana; under the same statute,

‘ruled:

.

“Tt is contended; further, that the court erred in .

directing. a ; verdict, andthat the -proper practice

Should have been to grant a-non-suit or dismiss the ~

’ . complaint, in eénformity with the provisions.: of. sub-

‘division 5, See. 9317, R. C.-M. 1921. Speaking: with .

. technical precision,. this contention is well founded:

A motion for a directed. verdict ‘is,,in legal effect,.a —

demurrer to the evidence (McIntyre .v. Northern ..

"<> Pacific Railway Co., 56 Mont.°43, 180 Pac. 971), and,

@ since..there was nat any eyidence before the eourt, .

the proceeding was ‘irregular; but a cause will not

be. reversed? for. a: mere technical error which does... -

not. affect the substantial rights of the party. com-

plaining (Section 9191, R: C. M. 1921). Plaintiff was . °

_ hot injured by the irregularity, for he is.not placed

in a worse posit’ n than..he would have been if _the

court had observed. strictly the provisions of Sec-

tion 9317 above.”’ Hit ina :

e > ‘ ‘ vr i

WS

&

To the same effect are the -cases cited in the text and

‘notes of. 4 C. J. 1471, supra. |

As before stated, the Séventh ne is concerned

with matters of substance, and not of mere form of -pro-

cedure. The Seventh Amendment does not protect the

petitioner as against a direeted verdict; and, since the

Fespondent was entitled to.a directed verdict, the mere’ ~

form or mode of ‘procedure by which judgment was

‘rendered for respondent could not possibly have affected.

the ‘‘substantial rights’’ of. the petitioner. Under the -

statute, therefore, the alleged error is harmless and |

does. not justify reversal.

_It would be a gross miscarriagé of justice to require

respondent to suhgit to another trial for the mere pur-

pose of having the trial court sustain~a-motion for a -

directed verdict. ‘The Seventh Amendment contemplates —

no such result; and the statute forbids it.

'

daunted Lure alata Anioacdnha etna

37

Conclusion.

‘This case was fairly tried, and the -result reached, - °

both in the trial court. and in. the Court of Appeals, was

manifestly right. In its final analysis, the récord is but

another illustration of a losing racé with death at a .

railroad crossing—a raee run ip broad daylight, in the

open" country, and with an -unobstructed *view, for over -

two thousand feet, of an o coming passenger train.

“ere parties drivin® a tomobiles persist -in gam-

bling with death at railro crossings, their estates _

should not be augmented by es if death ‘wins. ”

We eempeitiblly submit that the decision below,should

_ be affirmed. - . :

C. A. in

I. N. Warson,

Henry N. Ess,

Paut V. BARNeTr,

Cuarres V. Garnett,

——— for Respondent.