Miller v. Union Pacific R. Co., 290 U.S. 227 (1933)
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Miller v. Union Pacific R. Co.
No. 51
Argued November 10, 1933
Decided December 4, 1933
290 U.S. 227
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Syllabus
1. A driver of an automobile who, at a railroad crossing which is familiar to him and from his approach to which oncoming trains can plainly be seen for a distance of 2,000 feet, either fails to look, or takes a chance on beating the train over the crossing, is guilty of contributory negligence as matter of law; and, in an action for damages for his death, the trial court properly may take the case from the jury and dismiss the petition on the merits with prejudice. P. 231.
2. The doctrine that the negligence of the driver of a vehicle is imputed to a passenger has been abandoned in England, rejected by the great weight of authority in this country, and distinctly repudiated by this Court. P. 231.
3. Whether a right of recovery may be denied on the ground of contributory negligence in the case of a passenger or guest who suffers personal injury or death in a public or private conveyance over the movement of which he has no control depends upon his own failure to exercise a proper degree of care, and not upon that of the driver. This applies as well where the passenger is the wife of the driver as in other cases. P. 232.
4. The rule in the federal courts is settled that the burden of proving contributory negligence rests upon the defendant. P. 232.
5. Where contributory negligence is established by the plaintiff’s own evidence, the defendant may have the benefit of it. P. 232.
6. Where there is no evidence which speaks one way or the other with respect to contributory negligence of a decedent, the presumption is that there was no such negligence. P. 233.
7. Where the evidence establishes that an accident to an automobile at a railroad crossing, killing both the driver and his passenger, was due to the concurrent negligence of the railroad in operating its train at an unusual and unlawful speed and without sounding whistle, and of the driver of the automobile in attempting to cross the track, and where there is no evidence of how the passenger acted in the emergency, the passenger cannot be held guilty of contributory negligence as a matter of law, nor can his death be attributed to the negligence of the driver alone as the sole proximate cause. P. 233.
8. Where injury is caused by the concurring negligence of the defendant and a third person, the defendant is liable to the same extent as though it had been caused by his negligence alone. P. 236.
63 F.2d 574 reversed.
Certiorari to review a judgment affirming a judgment dismissing on the merits with prejudice an action against the railroad company for deaths by wrongful act. The case had been removed from a state court on the ground of diversity of citizenship.