delivered tlie opinion of the court.
From all the evidence in the record before us, it is certain that McAlpin was guilty of contributory negligence, and, from the same evidence, the negligence of appellant is also indisputable.
By imputation, was McAlpin’s negligence a bar to appellee’s recovery? Was McAlpin the servant of appellee? Did the relation of master and servant, or principal and agent, subsist between them ?
The appellee was, by invitation, being transported in a private conveyance on the occasion of the injury complained of. She was being driven in this private conveyance at the invitation of McAlpin or McAlpin’s mother. The team and vehicle were either furnished by McAlpin or McAlpin’s mother, and the appellee was, by invitation, being driven by McAlpin from appellee’s residence to a church in the country not far away. The team was gentle, and there was nothing to lead *450the appellee to believe that McAlpin was not a prudent and safe driver. The appellee was not the owner or hirer of the team, vehicle or driver. She had no control, or right of control, over the team, and none over the driver, other than that moral control which one human being may be supposed to have over another when the two are brought into close association. We cannot agree that the temporary occupancy of a seat in the vehicle under the conditions and circumstances shown to exist in this case, created such relationship between the appellee and McAlpin as made McAlpin’s negligence imputable to appellee, or would have rendered her liable for McAlpin’s negligence if he had injured a third person without appellee’s connivance or direction. We do hot think that McAlpin was the servant or agent of appellee, and his negligence is not, therefore, imputable to her.
Was appellee negligent herself? We cannot disturb the finding of the jury on this point. Though appellee never saw the train at all, yet, when at the foot of the cut, she was made aware of the near approach of a train, and discovered the purpose of McAlpin to attempt to ci'oss, while there was still ample time and space in which to stop, if McAlpin had heeded her wish, appellee did cry out to McAlpin, “ Surely, you do not intend to cross!” and, on his replying he thought he could do so, appellee instantly screamed and caught him, but the train was, by that time, upon them. It is to be remembered that appellee had seated upon her lap her sister, aged ten or twelve years, and that, if she had desired to spring from the conveyance on seeing McAlpin’s recklessness, she could not have done so without first throwing out the girl, or constraining her to jump out, and, that done, she would have had no time for determining the probability of securing her own safety by springing out. It is doubtful if there was time for her to disencumber herself of her sister and spring from the carriage; but, if it is possible that she might have flung out her sister and have made the effort to save herself, still, if the jury was of opinion that she had no *451sufficient time for deliberation and action, but, paralyzed with fear, she, for the instant, did nothing, the verdict might have yet been properly for her on this issue. She was not bound to exercise that care and caution and take such prudent action as it may now appear would or might have produced a different result. She was only required to behave herself as the average woman of reason would have done, situated as she'then was. The jury, under proper instructions, has passed upon the question, and we are not disposed to disagree with the jury on its finding.
The cross-appeal is not maintainable. .The consent to a remittitur was not compulsorily obtained. The appellee might have declined to yield to what she thought the arbitrary course of the court, and, if the court had persisted, and had actually set aside the verdict and awarded a new trial, by taking appropriate steps the appellee might have had this court rectify the arbitrary action complained of, if, indeed, it had been ascertained to be wrongful. The appellee prudently chose not to take the hazard,of that heroic course, and must be held to have voluntarily consented to the remittitur. She made her election to take the sure sum of $2,000 rather than incur the chances of total loss, and we are not prepared to say she did not act wisely in making that election.
Affirmed.