DIETRICH, District Judge.
On May 22, 1914, George R. Wright, while ¡riding, upon an auto truck, was instantly killed at a railroad crossing in Selma, Cal., in a collision between the truck and the engine of a passenger train operated by the plaintiff in error, hereinafter referred to as the Railroad Company. Defendants in error, the surviving wife and children of the deceased, had judgment in the lower court for $12,000 damages, to reverse which the Railroad Company prosecutes this writ of error.
There are numerous assignments, but, when analyzed, it is found that, in so far as they have substance, they are all comprehended in the question whether or not the court below should have held as a matter of law that the deceased was chargeable with such contributory negligence as to bar recovery by his heirs. The Railroad Company introduced no evidence, and, adopting the view of the plaintiffs’ testimony which the- jury might reasonably have taken, we may' state the salient facts as follows:
The deceased was in the drayage business at the town of Selma, and apparently, both for the purpose of trying out an auto truck with a view to its purchase and to make certain transfers, he applied to the owner, Phelan, for the use of the truck in question. Phelan assented, upon the condition that one Tucker, an experienced chauffeur, should drive the truck and “demonstrate” it, and that Wright should pay for its use at the rate of $15 per day. With this understanding, the truck was put into service on May 22d, and at about 9 o’clock in the morning Tucker, with the deceased sitting in the seat, on the right side, drove the truck southerly for about a quarter of a mile along a road running parallel with the railroad track, and then turned to make the crossing. The passenger train from the north was about due, and as he turned he looked in that direction, but could see no train, although the track was plainly exposed to view for approximately 1,500 feet. Up to this time his speed had been about 6 miles an hour, but as he made the turn, a distance of about 145 feet from the main track, he slowed down to 3 or 4 miles, and, proceeding at that speed, and looking-down the track to the south for trains from that direction, he passed over the first and second tracks, and was just about to go upon the main track, when, again looking to the north, he saw tire passenger train somewhere between 200 and 400 feet away, coming rapidly. He [263]*263made an effort to increase his speed, but not soon enough, for the engine struck the rear end of the truck, overturning it, and injuring him and killing Wright. The train was running at a speed of between 30 and 40 miles per hour, without bell or whistle, in violation of an ordinance limiting the speed to 8 miles an hour, and a statute requiring the sounding of a bell or the blowing of a whistle.
[1,2] Undoubtedly a prima facie case was made of gross negligence on the part of the engineman, and the cause was properly sent to the jury, unless, as already suggested, the deceased was conclusively shown to have been guilty of contributory negligence. It is unnecessary to decide whether or not Tucker was wanting in due care, for he is not a party to the suit, and his negligence, if any there was, could not be imputed to the deceased. In no sense were the two men engaged in a joint or common enterprise. Their relation was substantially the same as the ordinary relation between passenger and cab driver. The passenger pays for the service, and assumes the right to direct where and over what general route the cab shall be driven, hut has nothing to do with its operation or management. So here, if, favorably to the Railroad Company, we attach no significance to the fact that the truck, was being “demonstrated,” Wright was paying for the service of the truck, and presumably was directing where it should go, and over what general route, but, by express understanding, Tucker was running it. Under such circumstances, Wright was responsible only for his own conduct, not for Tucker’s. Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652; Shultz v. Old Colony Street Ry. Co., 193 Mass. 309, 79 N. E. 873, 8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502, 9 Ann. Cas. 402; New York, L. E. & W. Ry. Co. v. Steinbrenner, 47 N. J. Law Rep. 161, 54 Am. Rep. 126.
Was he himself guilty of negligence? Can we say as a matter of law that he failed to use the degree of care for his own safety which an ordinarily prudent person under like circumstances would have exercised ? If so, in what respect was he careless ? What did he leave undone, that he should have done? We must bear in mind that there is no evidence that he was an experienced driver; fair inferences are to the contrary. In so far as we are advised, Tucker was competent, and by Wright was believed to be competent, to operate the truck skillfully and safely. As was aptly said by Judge Marshall, in Pyle v. Clark (C. C.) 75 Fed. 647:
“It is a matter of common experience that passengers in a vehicle trust to the driver to avoid the ordinary dangers of the road, and I do not know of any principle of law which requires them to tender advice, unless conscious of the driver’s ignorance or want of care.”
It is not a case where the passenger, knowing the danger, voluntarily takes the risk, as where he rides in the nighttime over a perilous road or without lights. There was no circumstance to warn Wright of danger, or to suggest the need of assistance, or the advisability of cautioning Tucker. True, the railroad tracks were there, and they always warn of danger; and he may have known that the passenger train was about due. But until he had some reason to sus[264]*264pect that Tucker was incompetent or careless, or was unable safely to operate the truck, he not only had the right, but it was his duty, to assume that he- would not rashly or carelessly go into peril. Generally it is the duty of the passenger to sit still and say nothing. It is his duty, because any other course is fraught with danger. Interference, by laying hold of an operating lever, or by exclamation, or even by direction or inquiry, is generally to be deprecated; in the long run, the greater safety lies in letting the driver alone. And there is 'nothing in the circumstances here suggesting an exception to the rule. Tucker was sober, awake, and had the truck completely under control; and, so far as we know, he had shown no disposition to be reckless or venturesome. It was a bright morning, and the view of the track was unobstructed, so that in an instant he could glance either way and see an approaching train. There were no other sources of possible danger requiring vigilance, and plainly Wright’s assistance as a lookout was not required. In short, it was a case where a reasonably competent, vigilant driver needed no assistance, and would in the long run be better off if left alone.
We are not advised whether or not Wright saw the train, as soon as it came into view, a quarter of a mile away, or before it was seen by Tucker. He might have seen it, and yet reasonably have remained silent, for he might naturally have assumed that, the view being unobstructed, Tucker saw it, too, and was governing himself accordingly. So that up to the very time that the truck approached the main track he may have reasonably supposed that Tucker -vtould stop the car in time to avoid a collision.
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DIETRICH, District Judge.
On May 22, 1914, George R. Wright, while ¡riding, upon an auto truck, was instantly killed at a railroad crossing in Selma, Cal., in a collision between the truck and the engine of a passenger train operated by the plaintiff in error, hereinafter referred to as the Railroad Company. Defendants in error, the surviving wife and children of the deceased, had judgment in the lower court for $12,000 damages, to reverse which the Railroad Company prosecutes this writ of error.
There are numerous assignments, but, when analyzed, it is found that, in so far as they have substance, they are all comprehended in the question whether or not the court below should have held as a matter of law that the deceased was chargeable with such contributory negligence as to bar recovery by his heirs. The Railroad Company introduced no evidence, and, adopting the view of the plaintiffs’ testimony which the- jury might reasonably have taken, we may' state the salient facts as follows:
The deceased was in the drayage business at the town of Selma, and apparently, both for the purpose of trying out an auto truck with a view to its purchase and to make certain transfers, he applied to the owner, Phelan, for the use of the truck in question. Phelan assented, upon the condition that one Tucker, an experienced chauffeur, should drive the truck and “demonstrate” it, and that Wright should pay for its use at the rate of $15 per day. With this understanding, the truck was put into service on May 22d, and at about 9 o’clock in the morning Tucker, with the deceased sitting in the seat, on the right side, drove the truck southerly for about a quarter of a mile along a road running parallel with the railroad track, and then turned to make the crossing. The passenger train from the north was about due, and as he turned he looked in that direction, but could see no train, although the track was plainly exposed to view for approximately 1,500 feet. Up to this time his speed had been about 6 miles an hour, but as he made the turn, a distance of about 145 feet from the main track, he slowed down to 3 or 4 miles, and, proceeding at that speed, and looking-down the track to the south for trains from that direction, he passed over the first and second tracks, and was just about to go upon the main track, when, again looking to the north, he saw tire passenger train somewhere between 200 and 400 feet away, coming rapidly. He [263]*263made an effort to increase his speed, but not soon enough, for the engine struck the rear end of the truck, overturning it, and injuring him and killing Wright. The train was running at a speed of between 30 and 40 miles per hour, without bell or whistle, in violation of an ordinance limiting the speed to 8 miles an hour, and a statute requiring the sounding of a bell or the blowing of a whistle.
[1,2] Undoubtedly a prima facie case was made of gross negligence on the part of the engineman, and the cause was properly sent to the jury, unless, as already suggested, the deceased was conclusively shown to have been guilty of contributory negligence. It is unnecessary to decide whether or not Tucker was wanting in due care, for he is not a party to the suit, and his negligence, if any there was, could not be imputed to the deceased. In no sense were the two men engaged in a joint or common enterprise. Their relation was substantially the same as the ordinary relation between passenger and cab driver. The passenger pays for the service, and assumes the right to direct where and over what general route the cab shall be driven, hut has nothing to do with its operation or management. So here, if, favorably to the Railroad Company, we attach no significance to the fact that the truck, was being “demonstrated,” Wright was paying for the service of the truck, and presumably was directing where it should go, and over what general route, but, by express understanding, Tucker was running it. Under such circumstances, Wright was responsible only for his own conduct, not for Tucker’s. Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652; Shultz v. Old Colony Street Ry. Co., 193 Mass. 309, 79 N. E. 873, 8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502, 9 Ann. Cas. 402; New York, L. E. & W. Ry. Co. v. Steinbrenner, 47 N. J. Law Rep. 161, 54 Am. Rep. 126.
Was he himself guilty of negligence? Can we say as a matter of law that he failed to use the degree of care for his own safety which an ordinarily prudent person under like circumstances would have exercised ? If so, in what respect was he careless ? What did he leave undone, that he should have done? We must bear in mind that there is no evidence that he was an experienced driver; fair inferences are to the contrary. In so far as we are advised, Tucker was competent, and by Wright was believed to be competent, to operate the truck skillfully and safely. As was aptly said by Judge Marshall, in Pyle v. Clark (C. C.) 75 Fed. 647:
“It is a matter of common experience that passengers in a vehicle trust to the driver to avoid the ordinary dangers of the road, and I do not know of any principle of law which requires them to tender advice, unless conscious of the driver’s ignorance or want of care.”
It is not a case where the passenger, knowing the danger, voluntarily takes the risk, as where he rides in the nighttime over a perilous road or without lights. There was no circumstance to warn Wright of danger, or to suggest the need of assistance, or the advisability of cautioning Tucker. True, the railroad tracks were there, and they always warn of danger; and he may have known that the passenger train was about due. But until he had some reason to sus[264]*264pect that Tucker was incompetent or careless, or was unable safely to operate the truck, he not only had the right, but it was his duty, to assume that he- would not rashly or carelessly go into peril. Generally it is the duty of the passenger to sit still and say nothing. It is his duty, because any other course is fraught with danger. Interference, by laying hold of an operating lever, or by exclamation, or even by direction or inquiry, is generally to be deprecated; in the long run, the greater safety lies in letting the driver alone. And there is 'nothing in the circumstances here suggesting an exception to the rule. Tucker was sober, awake, and had the truck completely under control; and, so far as we know, he had shown no disposition to be reckless or venturesome. It was a bright morning, and the view of the track was unobstructed, so that in an instant he could glance either way and see an approaching train. There were no other sources of possible danger requiring vigilance, and plainly Wright’s assistance as a lookout was not required. In short, it was a case where a reasonably competent, vigilant driver needed no assistance, and would in the long run be better off if left alone.
We are not advised whether or not Wright saw the train, as soon as it came into view, a quarter of a mile away, or before it was seen by Tucker. He might have seen it, and yet reasonably have remained silent, for he might naturally have assumed that, the view being unobstructed, Tucker saw it, too, and was governing himself accordingly. So that up to the very time that the truck approached the main track he may have reasonably supposed that Tucker -vtould stop the car in time to avoid a collision. And when he realized that he was going to attempt to cross ahead of the train, what could, or should, he have done? Who can now say as a matter of law? Cry out? He might thus have confused and disconcerted the driver, and an instant of indecision in such a case may be fatal. Here, with the truck a half a second sooner or the train a half a second later, the tragedy would not have happened. . It must be borne in mind that there was no time to reflect or reason. If the train was running only 30 miles an hour — -the speed was probably greater — it was only about 30 seconds from the time it came into view a quarter of a mile away until it crashed into the truck.
In view of these circumstances, we are of the opinion that, in submitting the question of contributory negligence to the jury under proper instructions, the trial court gave the plaintiff in error no just ground for complaint; .whether the facts were sufficient to warrant its submission over the objection of the defendants in error we need not inquire. No case has been brought to our attention where, under analogous conditions, it has been held as a matter of law that the contributory negligence of a passenger, either actual or imputed, was a bar to recovery, and the following decisions more or less directly support the view we have taken: Little v. Hackett, supra; Shultz v. Old Colony Street Ry. Co., supra; New York, L. E. & W. Ry. Co. v. Steinbrenner, supra; Partridge v. Boston & M. R. Co., 184 Fed. 211, 107 C. C. A. 49; Wilson v. Puget Sound E. R. Co., 52 Wash. 522, 529, 101 Pac. 50, 132 Am. St. Rep. 1044; Parmenter v. McDougall, [265]*265172 Cal. 306, 156 Pac. 460; Pyle v. Clark (C. C.) 75 Fed. 644, affirmed 79 Fed. 744, 25 C. C. A. 190.
The judgment will therefore be affirmed, with costs to defendants in error.