:17.1

CGinpetent mj·,this?, !I!:·th. parfiesAt the time of the- accident had formed ihtention of wreckingithe' train, suchl intentioniwould be a material fact upon the question. whether the train was accidentally or in,tentionally derailed, and what better evidence oia intention can ¥,intooduced than his declaration 'thereof? Insurancs 00. v; Hillman, Rep. 912, This was 'an action brought to recover upon a upon·thellife of John-W. Hillman, who it was cIa-imed was by an accidental dischargeofa gunjbut upon the part of the OODlpaUJ it was claimed that the body produced as that .of Hillman was notstNn fact, but was that'of one:Walters, who had been killed when accompanying Hillman in a trip through southern Kansas. The queetion'whether Walters had in trnth .leit Wichita in company with Hillman was one of the disputed matters' in the case, and upon this point the couit held that letters written from Wichita by Walters to his friends in IowR, stating his purpose to go with Hillman, were admissible, as being evidence of hisjntention at the time of writing them, "which was a. material Jactbearing ·upon the question at issue." Aller the best reflection-I have been able to give to .tbecase, I remain Qf the opinion thatthe evidence excepted to WIJ.ll rightfully admitted. and hence the motionlor,newtrial is overruled.

UNtON. PAC.

Ry. Co. ,.LApsLE't.

E1qhth CirouU, .

(CWcuU

18, tSa)

No. 87.

IxPtl'r1In

the gratultoul\ invitation of tlle OWtull' aTU! dl"fvel' of 1\ Tehicle to· J'lde'wlt:h blm,'and 'exerclses no oontrol over iuch driver, tbe lu.tter's negligence .cannot b6lmputed;to '.bill guest, so 88 to defeat bls J'OICOVery .gai DSt · third person fortnjurlel\ resultjng frOlUtbeooncurring negligence ottbe driveru.nd such tbird person. 50 Fell. Rep. 172, aalrmed. LUt£e T. HlWkett, 6 Sup, Ct.. Rep. 11\11,
VlI1tTOL.. .'

116 11. B. 866,followed., '

1i

.

!'.

In Error tQ the of the U'nited States' for the Northern District of Actio)), as adrt:linistrator qftheea,ta.te of Eliza J. Lapsley ,agAinat the ColD paqy, to recover dam· the of his iqtestat,e. Verdict and judgment for t.M:SlJm ()f: $l ,QPO. F:or the oharge of theCQurt to the jury, ·Dftfendall,t brings A,ffi.rmed. . The 1\'ho was ,the adminiaEUzaJ. ,deceased, and.l:>rollght thisaot.iQQ ltaQij10 RaUw:ayPQmpllny tq repover 'damages,for .·the negijgent..kijling of the The, evidence following Ou 1.&99" Was ,liviq.g on a. farm
i

UN;J:QN·PAp.RY. CO ·.

175

near Dakota City, Neb., which had bel!5nged to' her fatper, and (loptinued to be the hornestEllild of the fanlily· .after his. death. She was 48 yeal S of1tge; and waS a :capable w,Qma,n, in good health. and accustomed to manage the affairs of the homestead. The plaintiffwas her brother, and lived in the same neighborhood. They had a brother living in Sioux to go to City, Iowa, one of whose family was ill; and decedent Sioux City with /1. to visit the sick one. and do some shopping. The plaintiff informed her that he was going toihat. city the next day to do some business of his own, and they could wait and go witl;l him. Onthenext day the plaintiff and his two sisters went to Sioux City in plaintiff's ppentwo-seated democrat wagon,where they each attended.to their respective business matters, and, after taking dinner at their brother's, started .to return home. Plaintiff, .who was 45 years old, sat on the front seat with, the younger aister, and drove his team, ·thedeeedent sat on the hack seat of the wagon. Leech street, in Sioux Oity, cr,9&Ses the street upon. which defendant's railroad is operated; and, owing totbe lay of the ground and to the buildings and other obstructions, it was impossible for one approaching the crossing on this street ,to see a train coming frorn the south for quite. a dist&nce along said street 'until one Wa& close to the track. ·Plaintiff drove down towards the cross·ing on this' Leech street at a slow trot, looking for trains in the usual :way. No bell,. whistle, or. other signal was heard, and just as the team ·was on the track an approaching' train was seen, which atruck the wagon, and so seriously injured. the decedent that she died in a few minutes. Both plainti,ff and his sister knew the surroundings of this crossing, and. they came down in the wagon without stopping to look or listen. The court below charged the jury that if the defElUdant was negligent in operating its railway, and that negligence was the proximate cause of the injury, the. plaintiff was entitled to recover unless they found that the decedent.was herself negligent in apP.J:oachingthe crossing, or controlled the driver as he approachelJ the crossing and he was negligent, an<;lsuch negligence contributed to the injury; but that if the decedent was herself negligent, or if she controlled the action of her brother, the ddver, as he apprQached thecrossillg, and he was negligent, and such negligence contributed to the inj Ul'y, plaintiff could not recover. The defendant company insisted that the negligence of the plaintiff, the driver, must be imputed to the decedent asa matter of law; but the court reo fused to .so hold, and.charged the. jury upon this question that if they found as a matter of fact that the decedent had and exercised actual control or direction of the driver as he the crossing, and' he was negligent,then his negligence must be imputed to her and she could n(>t recover; but that, if they found she did not have or exercise such control, the negligence of the driver could not be imputed to her from the mere fact she was riding in .her brother's wagon on his invitation, and he was driving the team. This holding and ch:lrgeof the oourt is the poly error assigned in this court, and, judgment having been rendi:lred .against the it sued out this writ of err"r to review . this. portion of.t4e

'FEDlmAL' REPORTER, voL 51.

·,J.M. Thur8t<Yit, for plaintiff in error.' S. Wilson and S. M. Marsh, for defendant in errOr. Before BREWER, Circuit Justice, and CALDWELL and SANBORN, Circuit Judges.
SANBORN, Circuit Judge, (after stating the fads.) Under the instructions oHhe (Jourt the jury, in arriving- at their verdict, must have found 1ihat the negligence oIthe defendant company in failing to ring its bell, ,sofind·its whistle, Or provide a flagman at this crossing was the proximate cause of the injury'complained of; that the decedent was not her'self guilty of anynegligebCe that contributed to the injury; and that she neither had nor exercised any control over her brother, thedriver, as he approached the crossing·. The owner and 'driver of the team exercised entire control over it, and was traveling entirely on business of his own, .......busiriessin; which the decedent had no part 0-1' interest. There is no .pretedse- tbat the drivelowas not entirely competent to take charge of the nor that· he-did not possess the requisite skill to manage team and oontrol the samepio.that the. case sharply present!ithe question 'whetl1bfone who,while'rlding gratUitously in a carriage O'wned and driven.'l'>y another, is injured by thi) concurrent negligence of a third person and the driverl over whoinhehlts no control, is barred from recovering compensa.tioilJorthe injury from the former, by the contributory,tlegli'genceofthe owner and driver of the team. If he who rides in a priVatecarrlage ou J the' invitation of the owner and driver of the team cannot recover of a third person whose careless act is the proximate cause ·efMa injury, where the negligence of the driver contributes to that injury, itt!:must be because·the negligence of the driver is, under the law, the negligence of the,gu-est; and, lfone who rides on the invitation of the owner of a private carriage who drives his own team is so far responsible for the negligence of his host that 'he cannot recover of a third person for injuriesca:used' by 'hisdegligence where the negligence 'of his host has contributed'to the, injury, iV logically a:tid necessarily follows that, if the host so negligently drives his team as to inflict injury upon a third person, the invited guesHvill be liable for that injury also; and an action may be maintainedagaii1st him by the person injured for the:damages thus sustained, sinceif'the negligen<Je of the host is to be imputed to the guest it must be imputed to him to the same extent his host inflicts injury'; but 'ltis' absurd to think that an invited guest riding ina private carriage could be held liable for the injuries inflicted on a third person! by the careless driving of the owner of the carand teanl,'and the 'absurdity of this conclusionmgnes with almost compelltng: f?rce that the negligence otsuch a di-ivercannot be imputed to the'guest: so as to bar1his recovery :when the third person inflicts, instead of 'receives, the inJury.. 'FhM the negligence of a servant, acting under the direction and eye of themMter, may'he imputed to the l3.ttel', that under sonle citcnmstances negligence of a parent may be imputed t'oa;.child, or the negligence'ofaguardianto his war<{, may be conceded. In cases of this class, and indeed in a:ll''casesvvhere this docI

UNION 'PAC. RY. CO. '11. LAPSLEY.

177

trine ofimputation of negligence may properly be applied, the relation of master and servant or principal and agent exists, and the doctrine rests on the' maxim, qui facit per alium facit per Be. The servant acts for and by the'direction of his master, the parent for the child of tender years. the guardian for his ward. Hence, in the eye of the law, the act and negligence of the servant are the act and negligence of the master; the act and negligence of the parent and guardian the act and negligence of the child or ward. But, where the owner and driver of a team and carriage invites another to ride in his carriage, no relation of principal and agent is created; no relation of master and servant is established; the owner and driver of the team is not controlled by and is not in any sense the agent of the invited guest; and to hold him responsible for the negligence of the former, by whose permission alone he rides, is unautherlh'ld by the law and repugnant to reason. '1'hat he who suffers injury from another's negligence may recover compensation of the wrongdoer is a principle founded in na.tural justice and sustained by every precedent. That where the negligence of the person injured has contributed to the injury he cannot so recover, because it is impracticable in the administration of justice to divide and apportion the compensation in proportion to the varying degrees of' concurring .negligence, is equally welf'settled. But that he whose wrongful act or omission has caused the injury and damage, and who upon every consideration of justice and reason Qught to make compensation for it, shall be permitted to escape because a third person,over whom the injured person had no control. and whbse only relation to him was that of a guest to his host, has' been guilty of negligence that contributed to the injury, is neither, just nor reasonable. According to the verdict of this jury, a loss of $1,000' was entailed upon the decedent by the negligence of this defendant. The defendant's wrongful omission was the proximate cause of this damage. The decedent in no way caused 01' contributed, by any act or omission of hers,to this injury. She had no control over her brother, the driver, who may have contributed by his carelessness to tbe damage. Upon what principle, now, can it be justly said that the decedent must bear all this loss when she neither caused, was responsible for, nor could have prevented it, because this third person assisted to cause the injury, 'the proximate cause of which was the wrongful act of the defendant company? l(there ,exists .in the realm of jurisprudence any sound principle upon which so unrighteoiIs a punishment of the innocent and the discharge oJ the guilty may be based, we have been unable to discover it. It is true that it was held in 1849 in Thorogood v. Bryan, 8 C. B. 115, that a in an omnibus, who was injured by the joint negligence of the driver of another public conveyance and the driver of the omnibus in which .he was riding, was. barred from recovering in an iction against theproprietol' of the former conveyance which collided .with the omnibus in 'which' he was riding by the contributory negligence of the driver o(theomnibus, that the negligence of the driver was the negligenceqnAepassenger, and that by selecting and entering the omnibus he became identified with the driver; and it is equally true that similar v.51F.no.5-12

';WS

,',' FEfJERAL BEPOB'ltl:R'iVOl.: 5l..i

this '],lad lleearendered in 'England and in statefil·pri:01 to: the year the year 1886 the reaSOJ;1·iOKfouild in thelopinioos"l,'endered-in th.t·;.case was ecinclWlill!'lly, refuted, 'and .'tHe deaisioD{'itse1f:·repudiated··by·the s'u'premecoU>l!t!ofthe United States in an exhaustive opinion delivered, by Mr. Ju&flceFllELP in Little v. Hackett, 116 366,' 6 SupdJt.Rep. 391;· and the convincing logic of the distinguished; jurist who deliver.ed thpt opiuion,and his exhaustive review0ftheautharities. have settled the law in this cauntry upon this'slibject, to.have,do:Dvinced the learned jqdges of the "court of appeals in England. that. the rule in Thorogood, v; JJryq,n. .was erroneous;, far inl&,87,in'J!he BeMina.,12 Prob.i Div.58, in exhaustive ·opinions dnwhieh the l111tharitiesare again carefully. reviewed, .they expressly disapproved the: reasoningand.ovetruled the. deoision in that -ease. With' the: single exception. or' the' supreme. court ,of the state Qf . Wisconsin, which: ,had, become committed to the doctrine'of Thorogood v. Bryan, priort61886-i the 'state courts bave uniformly held ,iih,at one who, whileridinghdhe ,his iuvitli:tion,is injured by the negligence' M a' third party, may .recover· against the latter, not·withstanding tlle of themv,ner: (:)f the carriage in driving his team may have contributed. to the injJJ.ry, where,the person injured :is without fault and lIas no authority o"lerthe driver. ,Follman v. Oity oj Mankato, 95 Mhm. 522, 29N. W .. l,Wp. 317; Borough oj OarliBls v. Bris-

bane, 113 Pa>St.544,,6(l\i!.·Rep.Z72; Robinsonv. Railroad 00., 66N. Y. 11j Dyer Railroad Co., 71 N.,¥'. 228; Masters071: v.Rf}:ilroad 00., .84N.Y. 247; Cuddy v; Horn, 46 Mich. 596, 10 32j 7rans,fer Co.v. Kelly, 36 Ohi.o,St.87; Railway. Co, Y. Eadie" 43 Ohio St. 91, IN. E. Rep, 519; BennefJ,v. New Je:rsey,R. &- 7'.00.,:36 N.J. Law, 225; Railroad Co;v. Steinbrenner, 47 N·. J, Law, 161; Railway Co.v. Shackk', 105 JIL 364. "

. This ,rule is by authority" oommends itself to the .reason, ·was properly and carefully 'given. to the jury for their guidance by, the judge below, and the judgment below is affirmed.
i

,I

KANSAS Ctt1",FT. '13. &

, "r'

I

I'

M.

';'!,;

R. Co.

11.

McDONALD.

'J'

'II

.. '

Gouno! ·Aplleal.8,Eighth. Oircuit. June 18,1892.)
. ,", . ' . . ."'J, I ,

t.

RAn.ROAD

So BAME-LOOKING AND LISTIilNiNG. . .', , ,. .' '" Whllei1;':is the duty.l1f an engineer on:a paSsenger train approaching'. crossing .du,e care to ascertain 1\ train isapproacbing of. .be said as.8 matter ot law'that bflB bound to Hsten, in addition to iookhig, although'tpe view is: limited by obstl"uctlons. '

. III an action a orosslngpf railroads, it C&lln.ot be said of law that1 of plainiurs trllln to stoll absdluiely at the stOpping' post contributec1 io tM injury, when 1t appears that at tIlOll.t it:l»oyed'slowly,pD.str.tne.post, and. thAt engineer looked tp the lltoppiJ:!R' post ol;l; c;>tb.'er rpail:" ,.n.,d thell in! sigl11;.

ON CROSSING TJU.CKS-Dulfyro'ElTop·