114 P. 781 | Mont. | 1911
delivered the opinion of the court.
This cause was submitted to the district court of Silver Bow county, sitting without a jury, upon an agreed statement of facts. The court found in favor of the defendant Great Northern Eailway Company (the other defendants having been dismissed from the action), and judgment was entered accordingly. From that judgment, an appeal has been taken.
From the statement it appears that two tracks of the defendant company, known as the “Stockyards” and “Y” tracks, extend through the city of Butte; that Warren avenue, so-called, extends from a northerly direction up to the right of way of the railway company in the vicinity of these tracks; that there is another street' called Warren avenue, extending up to the right of way of the defendant company on the opposite side of the tracks, but which, if extended, would not connect with the first-named Warren avenue; that neither of said streets has been extended as a public highway across the tracks of the defendant, and the intervening space has never been dedicated to public use as a highway. It appears, however, that “for a period of at least fifteen years that portion of said ground over which said ‘Stockyards’ track and ‘Y’ track are constructed.
It is contended on the part of the appellant (1) that the place in question was a “prescriptive highway”; (2) that, if not a prescriptive highway, the evidence shows a highway by common-law dedication; (3) that, if it was not a highway, the railway company owed to the deceased the same duty of .exercising ordinary care for his safety as would have been the case had it been a highway, on account of the fact that he was a licensee upon its tracks. We do not, however, find it necessary to decide the questions involved in these contentions, because we are of opinion that, assuming that the defendant was guilty of a want
In actions for personal injuries the absence of contributory negligence is not required to be pleaded or proved by the
Whether we regard the agreed statement of facts as constituting the plaintiff’s case alone, or that of both parties, which is perhaps more nearly the fact, the result is the same. On its face it discloses a case of unexplained contributory negligence on the part of the deceased. Let us remember that the railroad tracks were in themselves a warning of danger. Meehan was on foot, and there was nothing to divert his attention. Not only that, but he had in mind the necessity of crossing the tracks when he left the saloon, and in order to get upon them he was obliged to climb an embankment of some height. Even though
The judgment is affirmed.
'Affirmed.