# Brief for Respondent — Miller v. Union Pacific R. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0407%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondent - **Published:** January 1, 1933 - **Citation:** 290 U.S. 227 ## Text 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 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. ’ . - 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. ’ * 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. | ° 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: ’ ° ’ ° $ . 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0407%3A4. Public record. Not legal advice.