*1 RICH EHNI DARLENE Estate Administratrix EHNI, D. ARD Appellant, Deceased, Plaintiff COMPANY, a Wiscon RAILWAY PACIFIC NORTHERN Third-Party Re Plaintiff Corp., Defendant sin AND COM PINE SASH WHITE v. MISSOULA spondent, PANY, Third-party Defendant. No. 11452. Submitted Nov. 1968. Decided Feb. 1969.
Rehearing
Denied March
Loble, Picotte, Loble, Picotte, Gene A. argued, Helena, for appellant. Karlberg, & for Karlberg, argued, Missoula,
Boone Karl respondent. Opinion
MR. HASWELL delivered the JUSTICE Court. appeal by plaintiff judgment
This is an from a for defendant in wrongful arising death action out an accident at a private property. railroad located on The case by jury tried County. the district court of Missoula July accident in about 1 a.m. on occurred private at a yard railroad lumber Ehni, Company White Pine and Sash in Missoula. Richard D. employee an company, driving the lumber forklift when it was struck a flatcar at end during switching operations. a switch train Ehni killed instantaneously, leaving widow his and three minor children surviving him. *3 testimony concerning essentially the accident undis- is
puted. Company engaged The White and the Pine Sash in of logs. premises manufacture lumber from Its located are adjacent Railway yards. railway to the Northern Pacific yards generally run in an spur east-west direction track and a yards premises. forks off from these onto the As White Pine spur splits property, track reaches the White Pine off separate which general into four tracks curve into a north- parallel more or south direction less to each other and some apart. The accident distance occurred on most the westerly tracks, four of these hereafter called track No. 4.
Decedent knew a switch train was on track No. 4 south crossing immediately prior of the to was the accident. He layout conditions, premises, lighting familiar with the of the crossing, piles nearby. customary and the the lumber It was switching operations during night that the were carried on at the shift he worked. train
Defendant’s switch consisted of a locomtive, diesel six was flatcar in that The end order. four flatcars boxcars, and opposite the locomotive was at the nearest the track backing into been train. The locomotive had the end the picking np been northerly and had 4 in direction No. engineer prior accident, the flatcars. to the Just boxcars train, “stretch” i.e. to the locomotive forward the had- moved At couplings time of the were secure. the to ensure train, flatcar end the switch “stretching” the at the the empty approximately four feet south log flatcar train was an question. of the. engineer, sat on in the track the who of the curve
Because crossing. locomotive, not could see -the side west emitting light} with a white Three train crewmen' each lanterns engineer to relay signals to move were utilized They required. or backward as the situation train forward Sanders, track. all on west of the were stationed side crew, positioned of the switch between five foreman (cid:127) crossing, Meyers, another switchman ten feet north positioned acting engine follower, near locomotive engineer. Austin, switchman, in full of the another view generally midway Meyers between Sanders and in view of both. by signals The movement the train was controlled foreman, relayed Sanders, through the switch which were Meyers engineer. Austin and to the Sanders visible was not engineer to the because of the curve in the track. switch-‘foreman, Observing that Sanders, the up” signal back lantern gave was clear “medium with his engi- relayed Meyers successively which Austin and Immediately neer, thereupon backing the train. who started up” signal giving the back after “medium but before driving move, train had started Sanders observed decedent *4 northerly parallel to roadway a forklift in a direction on a and 48 west of the railroad track on feet which switch right train located. Decedent was turned toward the gave “stop” .signal at-which time Sanders a to the train with n downward, swinging arc consisting wide, lantern, a his- signal pre- gave a waist level. He this of the lantern at go cautionary because he wanted to let the forklift measure Immediately thereafter, crossing. turned Sanders “stop” gave signal him with decedent and the same and faced ato almost came down and The forklift slowed his lantern. proceeded onto the stop very .crossing but close to the cross7 train gave signal” “washout ing. Thereupon a Sanders stop high, rapid, hori- emergency consisting of a chest for an still of his back forth. He was zontal movement lantern when, train hit signal the end flatcar on the this instantaneously. turning killing decedent forklift it over and been, looking directly during at Sanders his Decedent had crossing. approach to the.
At moving the time of the accident the train was not more three, than or four miles an hour. The forklift likewise moving very slowly. surrounding area unlighted. dark and dim. It The flatcar was black and emerged pile generally from a in the behind lumber located equipped crossing. southwest corner of the forklift lights with on the front similar to an automo- on headliights bile.
' wrong- estate, wife, filed a Decedent’s as administratrix of his negligence railroad; alleging against ful death action defendant De- causing proximately the accident and decedent’s death. coupled substantially general denial fendant’s answer is contributory negligence part on allegation with an decedent. 12, 1967, on and resulted came on for trial June
The case After judgment for defendant. denial verdict plaintiff appeals judgment trial, motion for new her denying a new trial. and order upon appeal can review be summarized
The issues for as follows: .
378
(1) disqualifying Did district court err in four pros- jurors pective own on its motion?
(2) Did giving the district court commit error in reversible jury four instructions? right for review concerns the first issue jurors prospective four disqualify excuse
trial court to and challenged by who had not been voir examination after dire party Apparently to the action. the basis for either counsel jurors four concern that these action its of the court’s by direct indirect influenced their or associations might be argues Plaintiff Company. White Pine Sash with the deprived error in that her of the prejudicial this that jurors gave competent defendant ad of four services exercising peremptory challenges against its other vantage of jurors. qualified jurisdictions from numerous authorities
Plaintiff cites other author- say these that bearing question. Suffice it on this principles controlling percedent Montana. not ities are juries selection trial statutory regarding law our behind- clearly discernible panel prospective jurors are from the Litigants not en- previous Court. are decisions from jurors any particular eases tried before titled to have their select; right reject, not panel; their is to selected protected they litigants’ rights sufficiently if are secure impartial jury provided by drawn in manner fair and 777; Moran, 142 384 law. State v. Mont. P.2d State v. 248; Gates, Hay, 131 Mont. 307 State 120 Mont. P.2d P.2d Although specific statutory judge no right there is of a trial jurors upon voir to excuse examination not dire who have been by challenged litigants, we find no sufficient abuse of dis- cretion to constitute error under reversible the circumstances party instant case. disclosed Neither contends that the impartial. that heard this ease was other than fair and Proceeding assigned second issue review, for court error in plaintiff committed contends following objection: jury instruction over her or recognize we what an unavoidable “In law is termed literally These terms not mean inevitable accident. do possible They not for such an to be it was accident avoided. simply having denote an accident that occurred without been by negligence. proximately caused if
“Even such an accident been could have avoided *6 greater foresight, required use of caution or skill than was in in no ordinary still, the the care, circumstances exercise of may injuries resulting one be held liable for from it. mind, however, that if defendant to exer-
“Bear in the failed care, proximate and if failure was a cause of the acci- cise that question, then, in the dent whether or not such conduct was cause, unavoidable, sole was not defense accident unavoidability. may not be that maintained defendant. question in or the accident in this case “Whether not your (sic) for is, course, a fact unavoidable foregoing I not determine; giving in instruction do to finding your opinion suggestion what imply any or as to should be.” giving recently of an unavoid- held that the
This Court has any Gra- negligence in ease is error. able accident instruction rule Rolandson, 270, 150 Mont. 435 P.2d This ham v. that expressly nonretroactive. held As therein announced applies 30, 1967, it has rule to cases tried after November application instant case. Thus we must look to no previously. as it law existed instruction law accident” as it existed
The on “unavoidable that such time of trial of the instant case was instruction at the proper in limited class of if there is sufficient may be a cases justify that evidentiary an inference an unavoid- foundation Hoskin, v. 138 355 (Rodoni 164, Mont. accident occurred able evidentiary lacking if 296), but that foundation is P.2d jury negligence could infer is evidence from which there 380 part
on the
Ry.,
of defendant. Leach v. Great Northern
84,
approved
Mont.
In the instant case there is evidence which the negligence part could infer on the of the defendant. trial judge, effect, denying plaintiff’s so held- in motion for a Accordingly, directed verdict. giving unavoidable accident instruction is error.
Plaintiff also claims error in court’s struction No. which reads as follows: hereby person “You are instructed approaching railway crossing responsibility has the to exercise care and precautions to take reasonable the circumstances to- himself, by observation, assure actual danger there is no approaching Any from an train. failure to so do would con- negligence.” stitute upon law set forth in is based four this instruction Mon *7 George Ry. Co.,
tana eases: v. Northern Pacific 59 Mont. 162, Hannigan 869; Ry. 196 P. Northern 142 Co., v. Pacific Feeley 384 493; Railway Mont. P.2d Northern Pacific Company, Cir., 316; 9 230 Rau F.2d v. Northern Pacific and Ry. Co., 87 Mont. 289 P. These cases are dissimilar this, consequence, as to facts from instant case and as a the - incomplete misleading applied rule is and as to the. evidence plaintiff’s negligence here. The thrust of claim of in the signals instant case is lantern of the switch foreman positioned who several feet north of the diverted away decedent’s attention from moving the flatcar into the- decedent, south, interpreted by were (cid:127) signal proceed crossing. as a .
381 circumstances, jury an instruction to the that de- Under these precautions himself, by must take reasonable to assure cedent danger observation, approaching actual that there is no from an imposed only train an excessive burden on decedent. Not does imply place any that decedent was not entitled to reliance switching (cid:127)on the acts or omissions of the foreman of the crew ostensibly guarding crossing, who but it requires de- cedent In to observe unobservable. the instant case the approaching flatcar hidden from view behind lumber alongside stacked the track. Because decedent’s view was obstructed, thus the instruction is tantamount forbidding him except to enter at all peril. at his The instruction is an incorrect statement of law under the evidence in the case, making instant decedent an insurer safety. of his own assigned We examined the other instructions have two unobjectionable. by plaintiff error them find to be question, then, whether remaining is the two er jury roneous requiring instructions constitute reversible error analyze a new trial. must We context of Broadly the evidence speaking, instant case. there is no case, substantial testimonial conflict in this but in conflicting ferences essentially undisputed can be drawn from testimonial conflicting evidence. These inferences must be resolved by proper- instructions the court. materially affecting the error error Reversible party. M.R.App. rights aggrieved substantial Rule view, Civ.P. In our the combined effect of erroneous plaintiff deprived of a fair trial. instructions Nos. only placed higher duty These instructions not on decedent requires provided than but the law also defendant with the Accordingly, unwarranted of an unavoidable accident. deifense refusing we hold that the district court abused its discretion in plaintiff a new trial. HARRI- JOHN CONWAY BONNER and JUSTICES
..MR. SON, concur. *8 (dissenting): T.
MR. CHIEF JAMES HARRISON JUSTICE Although position contrary I a to ma- dislike to take jority Court, of I cannot concur in that is said in all foregoing opinion, in nor the result. employed lumber for 9 had been in the
Decedent months premises, yard, layout company familiar with the crossing occur- lighting conditions, the at which the collision leading red, and the fact a switch train was on the track that immediately attempted to cross before he backing knew lumber front of the train. Likewise of the he piles alongside switching operations that the track and were night during carried on at the shift worked. is that he This opinion. presence majority Too, all recounted switching light one of the crew at the with a evi- presence switching dence the immediate train. instruction No. in the court its Error was asserted which reads: approaching person that hereby
“You instructed are railway responsibility to exercise care has the to precautions the circumstances take reasonable danger is no himself, by observation, that there assure actual Any train. to so do would con- approaching from an failure negligence.” stitute the decedent this instruction made
I do not believe imposed burden safety and an excessive of his own an insurer says majority upon him, majority hold. The that it re- as no possible quired him to observe the unobservable. Is stop, look or “to rea- longer does one and listen take have precautions under the circumstances”? When one sonable switching operation sight of a is hidden that the knows lumber, presence which by a stack of well his view him, proceed known to should be nevertheless reason misinterpreted during argument sig- what counsel termed nals?
In error my instruction was not view the of this facts in this case. com- of which As accident” instruction to the “unavoidable given plaint made, my been view it should not have present here but it not reversible error under the facts jury to the not have misled the detriment could plaintiff. opinion by
It my the verdict reached this justified error cause, the facts in no reversible appears, be judgment and that thereon should entered affirmed. CASTLES,
MR. JUSTICE concurs in the above dissent MR. CHIEF JUSTICE JAMES T. HARRISON.