*1 MONFORTON, Respondent, ERNEST Plaintiff v. COMPANY, RAILWAY NORTHERN PACIFIC Cor- Appel- MORRIS, and HENRY poration, Defendants lants. No. 10048. August April 1,
Submitted
1960. Decided
1960.
Rehearing
October
1960.
denied
Bruce R. 0 ’Toole for appellants. Jr., A. Bolinger, Douglas Drysclale, Bozeman, H. R. for res- pondent. Bolinger, respondent.
H. A. Jr. for HOFFMAN, HONORABLE H. in Judge, sitting B. District place BOTTOMLY, Opinion of MR. JUSTICE delivered the of the Court.
This appeal judgment is an a defendants from of the dis- eighteenth judicial trict court of the district entered favor complaint action, on a to recover on two causes of personal injuries, damages one for the other for truck driving highway on public southward one Belgrade, County, mile passenger north of Gallatin where proceeding southeasterly highway crossed the and collided railway with the truck when started to cross the track. respondent produced appel- The and witnesses evidence of engineer engine lants’ failure of the drawing diesel ring train to blow a whistle for crossing. or bell the road The signs usual crossing” “railroad had been erected and were It is place. negligence conceded that this evidence of on the part appellants predicate negligence sufficient to actionable against Defendant, Henry Morris, appellants. engineer. physical quite easily
The facts illustrated. are The collision Dry Belgrade. north occurred Creek Road one mile The south, entering Belgrade road runs due north and from the point highway north. Let the of collision on the be marked A. railway highway, practical purposes, The track crosses the straight running southeasterly on a northwesterly line through point thirty-six angle thirty A. at an degrees be- Dry Slightly tween the Road. railroad and Creek less than one A, Dry mile north of Creek meets public highway Road another running straight Let east and west. the point of intersection Respondent empty, here be B. marked drove his ton 1% truck, equipped rack, Gr.M.C. westerly point B, with a stock Dry made a left turn and Road, started south on Creek then graveled, level, dry way. visibility all Weather and Admittedly, fairly clear. he speed maintained constant twenty-five A, point miles an hour to of collision. highway running east and west intersects and crosses the
railway B west of C. We then right have the enclosed triangle, AB highways, BC, the two forming legs the two railway, AC, hypotenuse. railway rises south- *3 easterly grade railway at one-tenth of percent. one The fairly tracks are at built elevation abutting constant about the — A A, land C point between at feet. five en- field triangle, C, closed within the A B is open, absolutely with no obstruction to railway any vision and full view of the from Dry given point on Creek B, except only, Road between A and that one suggested, positive testimony, witness but offered no may hay Dry there have been a stack somewhere between B, A Road, railway, Creek to C. triangle, A ABC, plane rising slightly level as it approaches A. Nothing plain obstructs and full the railway view of tracks any point from A and between B. It is to be noted that railway A from approximately tracks to C were elevated five feet above land east of such tracks. The passenger train was plain any full view point any between A C from witness, AB. Respondent’s Milesnick, on S. John who has lived Belgrade twenty-two four and one-half miles north of for years, triangle great big open testified ABC “a field”. wide Cloyd Dry Ales H. dark on Creek drove a DeSoto northward railway shortly tracks before accident. Road and crossed Cloyd DeSoto, Respondent passing remember did not very Dry to and north passed must have on Creek Road near he railway Cloyd testified follows: track. you Cloyd, driving your Q. I Mr. were presume, “ you the tracks? right-hand side the road as crossed own Yes, A. sir. aat
“Q. presume you proceeding were And I also Yes, speed? A. sir. reasonable rate you fast, remember, were “Q. you if can About how traveling? A. I can’t remember. you driving you were fast?
“Q. remember whether Do Oh, A. 40 miles an hour. probably enough pass? “Q. for two cars That road is wide there Plenty A. of room. Easy “Q. Yes, it? A. sir. isn’t
‘‘ you side Q. plenty Did room on other make A. I al- pass you going opposite direction? cars to ways did. Incidentally you remember whether
“Q. happen to do the truck at or you met besides may have other traffic going A. one truck this accident? I met near the time of I was. to what opposite direction ‘‘ in this Q. I the truck that was involved And think that’s so, I think collision, it? A. sir. wasn’t ‘‘ you up the if a was’com- Q. look track see Did A. track. you I looked down the ing crossed? before you A. How that? right? look left or “Q. Did 1‘ A. be guess ? I that would Q. you right left or Did look my left. *4 crossing towards the coming
“Q. And there was a Yes, not? A. sir. there you had time to you at it and felt that “Q. And looked Yes, you? A. sir. didn’t get' over “Q. yon plenty And did make it of time to be over well, safely way Yes; thought of that A. I ont train? I was.” wife,
Henry Carpenter, Evelyn Carpenter, his Iva with B mother, respondent point her followed from to within They short A distance from the accident occurred. follow- when ed at Mr. Carpenter a distance of two hundred feet. was driv- ing, testify. wife, respondent’s witness, but did His testified as follows: ‘‘Q. your And who besides yourself husband and inwas My mother, Thompson. A.
the car? Mrs. — ‘‘Q. right. And all You followed Mr. Monforton as he proceeded south? A. Yes. “ Q. you And would approximately know the distance you you were behind truck him followed to the say south? A. I approximately. would 200 feet ”Q. And, Carpenter, you now Mrs. did later become aware Well, there was a train just on the track? A. before we stopped at crossing it. we saw
”Q. And what kind of a train was it on the track? A. Passenger. —
“Q. And did your who in car first observed the train? A. I myself. believe it was
”Q. you Now say just you it was stopped before at the you crossing. Did near stop day? Well, A.
I imagine we were about 200 crossing anyway. feet from the
‘‘Q. your That stopped husband A. car? Yes. ”Q. you And traveling had been along Dry south (cid:127)— Creek (Interposing) road and A. Yes. —
”Q. (Continuing) just and was about that you when first passenger train, observed the is that correct? A. Yes.
‘‘Q. you happen stop your there, How did you car if Well, stopped. know? A. we saw the train and then *5 you
“Q. And what observe about Mr. Monforton’s did fast, Well, very driving truck time? wasn’t at the A. he he so. stop, failed to do thought might and we he but ? get hit A. We “Q. you And then did see his truck did. * * #
“Q. you, your car, try anything do to Did own to No. A. attract Mr. Monforton’s attention the train Yes, you A. “Q. attempting to do such? Did consider it attract thought honking we but was afraid would we his instead of forward. attention back mirror,
“Q. you rear either Could tell from the view looking through mirror from Mr. Monforton’s rear view or window, ? doing approached his he as he the track what was A. No. he “Q. words, you whether -was In other didn’t know ** * A.
looking or not? No. ‘‘Q. you your the mat- actually Did discuss with husband you should the horn to attract ter of whether or not blow think A. I I but I think mentioned it don’t attention? afraid my answered. He said afterwards he was husband it attract his back. would attention ‘‘ was, if Q. you far think Mr. Monforton About how do estimate, you you an mentioned that to give us when can Well, track; your very A. he close husband? I couldn’t tell how far. Well, way then,
“Q. put you it it this fair to Mr. any danger until Mon- that there didn’t consider True. very the track? A. forton was close to — you seen the “Q. However, you had had watched just felt that approaching for some little distance stop, is that naturally Mr. Monforton would see it right? A. Yes. train? A. Yes. “Q. you yourself And saw the * * * A.
“Q. you driving Yes. Were sedan? so you were fact, Carpenter, Isn’t Mrs. “Q. totally you going you saw absorbed with what on before you pretty everything much unmindful were else going except trying figure whether Mr. Monforton make it not? A. would To a certain extent.
££Q. terribly you? about it You were concerned weren’t A. Sure.” Cox,
Wallace had resided Belgrade who fifteen miles north of forty years, just Belgrade drove into before accident. *6 railway As he crossed the track looked he down the track and saw the train away. at a distance between one and two miles He testified:
“Q. you driving Now when are an unloaded truck in you visibility you have no do want this court and jury you to believe that didn’t it necessary consider to look — up you track see how far to see could a train look for always a A. train? I leaned forward and looked as far as my visibility would limit me in truck.
££Q. In words, you other precaution, did take the Mr. Cox, circumstances, in all you, didn’t that I consider should, prudent leaning drive of forward and peering out your right just to you see far see, window as as could isn’t right? A. your That is correct; vision is limited. ‘‘ Q. you But practice did make looking of up the track by leaning you your forward when were truck limited * * * visibility? respect got A. You have to a train.
i£A. angle you agoing might say, the track south east, and going south, you the road going' are almost along, you see, your can restricted, you vision is not can see that train. ££Q. If to the A. you? it’s out side of Yes. n — n
“Q. you Now if could didn’t see a train out to you you you traveling side of than a knew were faster traveling you train would be track turn and would * * * clear lean forward look back down the track? A. Yes.” always crossing as “I he testified the tracks:
Later crossing; I track I to the didn’t look down before came empty.” it check as close Carpenter, B that he reached ahead
Respondent testified Carpenter hundred south and followed him about two turned looked; B track in front feet At he whole behind. triangle He see him, is, “that across that there.” did not train. He further testified:
“Q. you proceeded you watching south Now were A. you? ahead I was. road I you trains? A. “Q. What did make to look for effort occasionally right. glanced over you “Q. glanced to the When was the last time over Well, say you exactly I it was If A. can’t right? remember. up the road. well you
“Q. say up ‘well the road’ do mean near you When Oh, crossing; A. or near the comer? nearer say just I when was. be able wouldn’t “ right you your Q. you change When looked didn’t to the is, you any, simply body in the cab of the truck position No, I right? A. your head and looked to Yes. turned move in the seat. didn’t over
“Q. get lean forward either to a little better You didn’t very A. lean much forward with steer- Couldn’t the view? in in truck front of me. ing wheel ‘‘ Q. proceeding along you that road knew you When were in, angle track at an crossing came or the came that the plat, you did angle to that shown on this not? or a similar Yes, I A. did. do up the truck
“Q. Was window of rolled down No, they A. closed. you remember? were you any you “Q. stop before reached Did time looking for a train? A. I can’t crossing purpose for the stopping. remember your along
“Q. proceeding You have recollection of do road, you said, up you I think until within a were Something that, yes. hundred feet? A. like “Q. "Wasthere traffic on road besides the Car- penter you car that any- remember? A. I can’t remember one else.
‘1Q. There was presumably passed a red car that over the crossing going opposite shortly direction before you you? accident have been told that since, haven’t A. I there, yes. have been told there awas car “Q. You have no recollection of that car there? A. Not at all.”
The crux of this case whether guilty contributory negligence, interposed which was as a defense. It opinion is the of the court that the whole record resolves issue in favor appellants; that the record discloses that respondent failed to degree exercise that of care which an ordinary, prudent man, reasonable and under the circumstances case, of this would have for safety, exercised his own his lack of due care proximate was a direct and cause his injury and damage. duly looked, listened, He neither nor took any precaution safety. for his own senses, Had his he used he could not have failed to see the approaching train. There was no obstruction respondent’s whatever to interfere with observa power tion or may observation. The concerning same be said hearing. There is evidence that railway this line of track was used almost exclusively freight for trains. The in train in this volved accident passenger approximately was a train length one thousand feet drawn engine. a three-unit diesel While there is evidence that quietly moved more than freight usually trains that passed line, over this there is no passenger evidence that the train would not have been heard in time safety, had given attentive ears when approached he where the usual “Railroad crossing” signs had been place. grade erected and were in leading up to the railroad to cross was between one hundred *8 twenty-live long, feet which with
and one hundred nearly mile, plain itself in were sufficient view reasonably hearing prudent warnings bring the sense play. man into very good, brakes respondent testified were traveling than that he was not faster
that the windows were clear Sergeant quali- hour. William C. Benson twenty-five per miles braking that the actual expert and testified fied as an witness truck, twenty-five per miles hour on going distance of forty feet; approximate stopping- highway be would ninety-two been not to exceed feet. Re- distance would have thought stopped been somewhere spondent the truck have could Considering feet. sixty and one hundred one hun- between twenty-five grade from the feet road level to one hundred dred stopping occurred the actual up the track where collision certainly less than that. quite distance 1947, things provides: 72-164, among R.C.M. other Section “* * * [*] [*] where [*] provided, view however, obscure, all or when a persons driving moving motor vehicles train within is stop full not less hearing, bring said vehicle to a sight or shall high- than hundred feet from where said than ten nor more one way tracks”. intersects railroad Ry., 1899, 525, Mont. 57 P. Montana
Hunter v.
Central
Montana,
law,
140, lays
since followed
principles
down
ever
We
that decision
impelling in our decision.
followed
which are
Davis,
71 Mont.
227 P.
twenty-five years later in West v.
decisions of this court are
that the
wherein we observed
opinions
precise
base our
on the
wholly adequate upon which to
prior
reviewing
After
deci-
contributory negligence.
issue of
matter what the
apparent,
“It
no
sions,
court said:
testified,
train,
that the
at the time when
himself
safety,
was at a
where
place
perfect
plaintiff was
it if he
failed
and hear
not have
to observe
could
proposition,
subscribe to
or listened. We cannot
had looked
see an
that he
look and did not
a man testifies
did
because
*9
201
at
at a
object
manifestly
must
a certain
have been
given
sight
that his
plain view,
time
his
where he admits
within
thereby
good
nothing
vision,
is
that
and
to interfere with his
presented
ordinary
when
use
question
jury
for the
given
warning
of
him
of
necessarily
his senses must
have
in
approach
opinion,
on-coming
facts,
train. These
our
beyond any question upon
were demonstrated
the trial of this
testimony
respondent
case
himself
offered
and
witnesses;
think,
stated,
and we
for the reasons above
previous
court,
view the
of
decisions of this
the trial
erred in refusing
grant
requested by
court
nonsuit
case,
defendant
close of
re-
also erred in
fusing to
defendant,
direct
verdict for
inasmuch as the defen-
dant’s case
nowise
plaintiff.”
aided the ease of the
foregoing pronouncement
of
solidly
our
law
but-
following
tressed
decisions that had then been ren-
Hunter
Ry.,
dered:
v. Montana
22
525,
Central
Mont.
57 P.
140;
Ry.,
Meehan v. Great
72,
Northern
43
781;
Mont.
114 P.
George
Ry.,
v. Northern
59
162,
Pacific
Mont.
196
869;
P.
Nor-
Payne,
mandin
65
543,
v.
Mont.
212
285;
P.
Keith v. Great
Ry.,
505,
Northern
60 Mont.
718;
199 P.
and Roberts v. Chi-
cago,
Ry.,
M. &
472,
St. P.
67 Mont.
upon which the usually collision occurred was for slow used moving freight trains whereas the train involved in this acci- moving dent was a fast passenger train which introduced the surprise, unexpectedness. element Walters, William W. superintendent assistant Rocky Division, Mountain testi- 4, 1946, November
fiecl from the railroad records between passenger trains went over March sixteen Respondent’s witness, Carpenter, Crossing. Low Line Iva B. doubtful, going qualifications testified the train was whose are forty forty-five per hour. John Milesnick testified miles S. speed trains respondent freight the Low over twenty dispatch- The train per
Line fifteen to miles hour. speed freight trains average er ’s that the records showed day accident, 23, 1956, the on the March Low Line 22, 1956, the thirty per hour; miles on March aver- one-half fractionally freight that. All trains diesel age over had in 1956. The record does not disclose whether engines beginning *10 testimony to diesel drawn Milesnick’s had reference witness Mr. burning engines. produced Walters also freight or coal engine the speedometer the which drew tape from on the the forty speed it to showed a of and testified train involved immediately before the forty-four miles in the mile and one-half forty when brakes were speed a of miles the collision, and very that there was little difference be- He testified applied. trains the freight passenger Low speed the of tween engine Morris, engineer of the diesel when the Henry the Line. thirty-five traveling forty occurred, he to said accident crossing. he hour as came to per miles passenger train who did see the before Respondent, speed it train accident, asserts that was excessive accident, freight trains that caused but could over usual testify speed speed course, to of the train. His own not, of B, nearly mile, twenty-five A points a between appear that the usual from which it would even per miles hour him. He relies train could have overtaken also freight quietly ran more passenger that- the train faint evidence it freight raising trains an inference that had been than Respond noise would warned him. freight have usual alleged attempts appel an custom on thereby to substitute ent respondent’s part exercise care on for the of due part lants’ rule, at Giend clanger. a Di place of known The better stated Lines, Pennsylvania-Reading emonica v. 123 N.J.L. Seashore 342, 343, is, A.2d a as matter crossing is that railroad a law, of place respondent a of danger known bound recognize Supreme to law it as such. The Court of New Jersey said: succinctly, plaintiff’s
“Stated is, that where contention Compaq has, through long defendant practice, Eailroad general public, known the members of the of whom one, intestate was led users its anticipate operation speed, defendant’s trains point, at that not in excess per hour, certain rate speed increase in that operation rate of of defendant’s crossing, trains over said public without notice to the change speed, or adoption safety precautions by company, defendant neg- constitutes a situation from which * * * ligence may be inferred. “As the learned trial court said striking the com- plaint: company ‘If charged can neg- be with ligence operated because caused a train to be faster than customary speed, why the usual or can’t it the same charged be negligence token with because a train passes a particular crossing or street earlier or later than it was customary go by; why for the train could it not be charged negligence increasing with train service if the *11 happened it accident before became the custom for the rail- company to operate road the additional train trains? law,
If such were the railroads would be in damages liable for a violation of a custom rather than a violation of a duty imposed authority.’ statute or other lawful really
“What is trying isdo to substi- alleged part an custom on the tute defendant’s for the exer- place danger cise of due care at a part known plaintiff’s custom, intestate. Custom or no a railroad crossing law a place as a matter of is danger of known and
204 recognize intestate law to bound
such.” following eases, precisely point, not all in are in accord: Ry., 743, 750; King v. Western Pac. 173 161 P. Larrabee Cal. Pennsylvania Ry., Cir., 588; horn 2 Holt 1931, v. 47 v. F.2d Ry., 446; Ill.App. 436, Illinois Cent. 318 48 N.E.2d Baltimore Ry. Black, 439, & 642, Ohio Co. v. ex rel. 107 Md. 69 A. State 340; Ry., 604, 72 A. 11 Byerley v. Northern Wash.2d Pacific 383, 120 P.2d & R. W. 453; R., Nuttall v. Denver G. Utah 15; Ry., Chicago, P.2d Sohl I. & P. 183 Iowa v. R. N.W. 529. objection, gave Instruc court, appellants’ over No.
tion which was as follows: you that if find from evidence that "You are instructed Company track Bailway used the railroad Pacific Northern exclusively freight so trains travel- in this action involved speed rate of as to cause such use of upgrade at a slow ling practice an established custom to become said track this the collision in defendant; the time of involved at during the this and relied thereon plaintiff knew custom action, you crossing; if crossed said approached and that he time time the collision at the involved find that„ further company, contrary such estab- railway defendant action the custom, fast-moving passenger caused a use and lished the motor crossing which struck across said upon and run be event, then, you may in that by the plaintiff; driven vehicle other intro- facts, together with the evidence these consider whether the ease, determining in this duced them, as is required such care de- used the care defendants instructions, the time said at at in these fined error, but it only this instruction Not collision.” No. which was: Instruction with court’s consonance his truck toward the cross- driving while plaintiff, "The that the defendants would to assume not entitled ing, particular speed.” time or their trains operate
205
Appellants’ objection to
No. 13
court’s Instruction
respondent
right
any assumption
any
had
to
speed
no
make
particular
objection
whatsoever. On
of this case that
facts
good.
Respondent
exculpate
labored to
himself from blame for his
failure to exercise due care on
grounds,
sep-
two
considered
arately
rang
above—the first —that neither bells
nor whistle
blew
crossing.
for this
appel-
customarily
The second—that
lants had used this
slow-moving freight
Low Line for
trains
day
whereas on the
respondent
the accident
caught
surprise by
fast-moving passenger
Appellants
train.
con-
cede that the evidence
duty,
as to the first violation of
failure
to whistle or
ring
bell,
is sufficient
jury
warrant
in finding appellants negligent.
second,
On
appellants
nothing.
concede
We find
overwhelmingly
authorities
against
respondent
first,
on the
against
respondent on the second.
But,
quite
somehow not
clear, respondent argued that the two
together brought his case
following
within the
authorities,
which he cited: Hendrickson v.
Ry.,
Union Pac.
17 Wash.2d
548,
438,
136 P.2d
161
96; Broberg
A.L.R.
v. Northern Paci-
Ry.,
fic
120
280,
Mont.
182
851;
P.2d
Dimich v. Northern
Ry.,
Pacific
485,
136 Mont.
P.2d 786;
Ry.,
348
Farrell
Erie
2
v.
Cir., 1905,
F. 28;
138
Morris v.
R.,
Boston & M. R.
85 N.H.
265,
Pacific Or. 313; 160 P.2d Missouri-Kansas- Ry. Wardlow, Texas Cir., Co. v. 1959, 262 F.2d 681. These eases are not in nor can of them be fairly said to be analogous. Each case standing involves a train on crossing, dark foggy or night, crossing, obscure extra-hazardous cross- ing, failure ring bell or whistle, blow speed (some- excessive who going through city), passenger
times some automobile hardly Most of the negligence. could be held answerable *13 In contributory not as negligence cases do involve an issue. Broberg case, supra, passenger in a car plaintiff the a by gondola, ran standing driven Mrs. MeFarren into a who color, cloudy very night. dark in a dark The issue on case, supra, negligence Umbaugh In the of the defendant. the crossing- a adopted daughter the mother of railroad an killed on brought the by adopting a ear driven her father suit. Ry. Wardlow, supra, probably Missouri-Kansas-Texas v. a respondent’s most favorable case. was evidence There train, usually by trains passenger using- freight a track used Main only, the accident on entered the where occurred forty- Springs, Oklahoma, at speed Street in Sand between city lim eight seventy per miles hour when the ordinance speed per fifteen miles hour. Plain ited the of trains within twenty per hour, did approached crossing- going tiff the miles expect train, north not and “At a distance of to feet tracks, right the and did see or plaintiff looked to not point on-coming train. At this the track to the west hear east, He looked seen for about 125 feet. then to could be street, he his back ‘the and when turned attention to roaring prevent the col through’ came and he was unable to engine. He into the court affirmed lision.” ran diesel holding judgment plaintiff, that defend the verdict for contributory negligence negligence were ant’s jury. for the cited, not disclose reason analysis, of cases does
Careful Further examination of authority our decision. to disturb unduly lengthen opinion. only them could n carefully his have examined respondent, fairness we In north, Cloyd, going Alex H. the fact contention respondent, necessity, not far passed crossed the track and track, exculpate plaintiff in that should north of heavily thereby He leans attention was diverted. Chicago, Ry., Walters v. & 47 Mont. Puget Milwaukee Sound 357, 358, 133 P. 46 L.R.A.,N.S., 702, where at- tempted to railway crossing drive his automobile situated over eight a cut deep to twelve feet hit a train run- ning forty-five fifty-five from miles an Vision was hour. restricted. testimony tended to show that had both stop-. hap- looked and listened. He did The accident pened July 1910. The 1913. case was decided June Section 72-164 of our Revised Code was 1919. enacted The court re- fused to “stop, look, follow rule to In and listen”. case,
instant respondent Cloyd did not even see the car —he so testified. Our case further distinguishable physi- cal environment surrounding hap- where the accident pened. Walters did look and listen. He did not discover train’s approach. He try use, excuse, did not an that his attention was Canty diverted respondent car as the *14 does, in case, the instant argue and insist that his attention by was Cloyd diverted that car he testified he did not see. Respondent also Butte, Anaconda, etc., Ry., cites Walsh v. 109 456, 325, Mont. 97 P.2d where the administratrix sued for death of an automobile moving driver who drove into a train nighttime when the buildings view obstructed night structures and the foggy, was dark and painted black, crossing gates and the up, inviting were proceed. deceased to upon by respondent The cases relied are neither authoritative, persuasive, applicable nor in this case.
Respondent argues is go jury he entitled to to the the presumption person ordinary a exercises care for his safety. own principle This 93-1301-7, is codified section 4, R.C.M., subd. which reads: presumptions
“All other satisfactory, are if uncontra- (cid:127) They dicted. disputable are presumptions, denominated may be controverted other evidence. The follow- * * * ing are of that kind:
208 ordinary of liis con- person “4. That a takes care own ’ ’
cerns.
& Poto-
respondent
Baltimore
position,
To
cites
sustain his
137, 48
461, 24
Landrigan,
R.
191 U.S.
S.Ct.
mac R.
Co. v.
355,
Baskins,
Ark.
262; Choctaw,
L.Ed.
O. & Rd. Co. v.
78
G.
Co.,
County
757;
93
Farmers’
S.W.
and Fulton v. Chouteau
48,
cases,
98
first
two
there
Mont.
The motion a directed verdict all We need not decide judgment appellants. entered decision, unnecessarily extend this issues raised. It would way judgment. alter our could no in Montana ignores the law dissenting opinion only straight must look not of a motor vehicle
that the driver that which laterally presumed to see ahead, ahead. He but say that permitted not be by looking. He will he could see looked. The had he must seen he did not what he have see duty to see that which duty keep a lookout includes effect, position legal in the sight. is, plain Monforton train, in the words having actually passenger seen v. 857. Autio Mohalt, P.2d Boepple v. 101 Mont. Herring, 89 1039; v. Miller, Johnson Mont. P.2d *16 210 420, 535;
Mont. 300 P. Berger, 441, McNair 92 15 v. Mont. 834; P.2d Chicago, etc., Ry., 97, 382; Grant v. 78 Mont. P. Co., 188, Webster v. Mountain States Tel. & Tel. 108 Mont. 602; 89 P.2d accord. obscure,
Monforton would have us that his believe view was steering that the wheel in an his cab was obstruction to a clear right window, bodily view out of the cab in that it restricted whereby get movement he could not a clear view out across the open Thereby wide field that offered no obstruction whatever. Monforton is 72-164, thrown cross-wise with section R.C.M. 1947, wherein Legislature, 1919, the State in enacted this stat- ute, force, ever in persons driving since that all motor ve- hicles obscure, where the is moving view or when a train sight hearing, bring within or shall stop the vehicle to a full not less than ten nor than feet more one hundred from where highway Chicago, intersects the track. Neither Walters v. Puget Ry., Milwaukee & 133 P. Sound 47 Mont. L.R.A.,N.S., 702, supra, decided before the statute was en- acted nor decision this court since the enactment can change or obliterate it.
In Broberg Ry., v. Northern Pac. 120 Mont. 182 P.2d 851, 860, this court as defined “obscure” used section 72- 164, R.C.M.1947, clear, distinct”, as “not full it or “when was not Obviously, pro- clear and distinct”. Monforton southward, approached crossing, was, ceeded this train not, clear, or it full or distinct view. Justice Adair states that Monforton’s view was not obscure nor was the mov- ing sight train within Carpenter of Monforton. Iva fol- lowing Monforton a few hundred feet behind him saw approaching distance, “just train for some little felt that naturally stop”. Mr. Monforton would see Wallace Cox preceded going Belgrade just Monforton southward into be- truck, fore the accident in an unloaded looked down the track away. “always and saw the one or two miles He looked down the It crossing”. track before he came to is not de- Monforton’s view either the evidence from ductible was not within moving train that the distinct or not clear and sight. Monforton’s appellants, here- negligence of ordinary action sounds
This contributory negligence, The defense admitted. inabove in black and by this court written upon which has been law white. *17 appel that whatever presents no evidence
The record that Mon Cloyd car or by the lee’s attention was distracted necessary distraction, make any failed to forton, because assump involves an find otherwise look-out for the train. To conjecture that speculation or upon based tion or inference assump and the second Cloyd distract his attention car did this distraction was first, that tion or inference based on the the train’s to discover the failure of Monforton cause of 4, Fisher v. 93-1301-1 to approach. But under section 330, one inference Ry., 72 Mont. 235 P. Butte Electric presumption. from inference cannot be drawn other by two other opinion Justice wrote an concurred Smith N.W.2d Seamon, justices in Co. v. 349 Mich. Sun Oil dissenting opinion in wrote a 840. Chief Justice Dethmers Kelly justices. wrote ease, by two other Justice concurred opinion and trial separate opinion, agreeing with the court’s ground judgment should be affirmed subject Michigan is to an statutory clear distance rule in by exception emergency situation was created defen- when an Kelly separate concurred with opinion, In his Justice dant. only. Smith, opinion on Justice Justice Smith’s dissent, not muster a ma- Adair in did quoted Justice his opinion support he asserted to jority upon grounds the other mis- to willful and wanton conduct amounted that defendant’s statutory rule, contributory clear distance and under conduct not a negligence was defense. application has no to the instant case. rule clear distance appellants’ plea of willful or wanton misconduct
There no part, ground question barring plea therefore on that no Seamon, supra. done in Sun Oil Co. v.
In conclusion, ignore the dissent seems to us to the trial court’s appellee instruction No. to assume that entitled appellants operate any particular would their trains at time or speed. , judgment appealed reversed, from is with directions to judgment appellants.
enter HARRISON, MR. CHIEF JUSTICE MR. JUSTICE THE BLACK, CASTLES and HONORABLE W. M. District place Judge, sitting ANGSTMAN, of MR. JUSTICE concur. dissenting: MR. ADAIR JUSTICE I dissent. Monforton,
Ernest warning, driving pick-up without while truck, injured seriously run down and Paci- a Northern passenger fic train at a country on a road near Belgrade, Montana. This is a suit damages to recover for the injuries and loss so occasioned. answer,
In its Railway Company the defendant pleaded con- *18 tributory negligence part on the plaintiff of the Monforton. At trial, district judge, presumed the man, to be a reasonable held that question the alleged contributory negligence the of the plaintiff Monforton, any, properly question if was the for jury. determination of the jury, presumed
The composed persons, to be of reasonable unanimously plaintiff found and that Monfor- determined the guilty ton was not contributory negligence and that the Railway Company injuries defendant is liable for suf- and loss by fered Monforton damages and assessed his at the sum of $53,650. From the judgment given entered, conformity in jury’s verdict, with the the defendant Railway appealed has to this court. majority opinion
The herein fails and to set all omits forth presented trial, hence, the essential facts as to at jury the the facts that forth certain material necessary here set becomes majority opinion. from by the have and omitted been overlooked country the road intersect tracks and Facts. railroad degree the forming angle between crossing, measured at the As and the truck country the road. the train tracks and traveling at crossing, passenger the train approached the by hour, the 46 miles and the truck driven speed per the per 25 miles traveling speed at the plaintiff Monforton stated, moving approxi- Simply passenger hour. the Both train and truck were mately as fast the truck. twice in direction. a stock general the same The truck had traveling truck, In back. his Monforton could see operating rack on the front, mirror, rear use rear view left, to his to his of a his right approximate degree angle his at from and also to an along country proceeding. the the truck was How- road which spot right a blind ever, plaintiff Monforton had rear truck. his evidence, Competent, credible and uncontroverted which determining nonsuit motions a directed defendant’s for for verdict, plain- light must be viewed in the most to the favorable tiff, was introduced which that Monforton was to effect approached looked listened as where the he country road crossed railroad tracks. majority opinion in the
The statement to the effect plaintiff contrary did not look is submitted evidence Monforton, testified, up who to a within crossing, keeping one hundred feet of he was a lookout in directions, through all and that right looked to win- he right-hand truck. testimony, dow the door of his Here the given by the person plaintiff, interrupted and ends majority opinion mentioned in is most reason not but which namely, accompanying relevant, the terrific shock the col- completely lision train and truck blotted out from memory Monforton’s all events occurred after *19 he the above-mentioned about one hundred feet reached memory crossing. is that Monforton’s was
from the The evidence he remember by impact that conld not recall or so affected automobile, proceeding was passing an which the evidence shows that opposite in the from country road direction along safely plaintiff traveling, and which automobile which truck railroad tracks but seconds before Monforton’s crossed the necessity automobile of had to crossing reached the and which truck, immediately prior to the collision. pass, the Monforton following plain- automobile The driver another pass latter the above- tiff’s truck observed the meet and opposite proceeding automobile that mentioned by plaintiff’s truck. Monforton from that traveled direction memory meeting passing or such auto- no or had recollection surely attention. mobile, event would have attracted his proceeded he down testimony to the effect Monforton’s looking observing in all directions country road he was accepted must as evidence of the be stands uneontroverted kept proper lookout. fact that he any that he did not hear noise further testified testimony by moving and such stands made train
or sounds no in the record. There was evidence whatever uncontradicted moving passenger train, by that such that even tends to show tracks, along made sufficient noise or merely proceeding occupants heard attract the attention be racket to two automobiles. other operating did not hear the noise of the The fact that important moving attention to another element train directs majority completely ignored has this case which been namely, approaching this established opinion herein, wholly ring bell, crossing moving failed to blow signal all, that the give warning whistle or or sound hour, speed per of 46 train entered the at a miles engine right front end of the struck rear end of that the completely the truck was almost across the truck at a time when crossing. that the railway tracks and The evidence is clear
215 train, but that the plaintiff did not run into the Monforton engine ran into Railway Company’s front end of the defendant words, plaintiff’s In other plaintiff’s the rear end of truck. train. The train truck was struck from behind defendant’s Monforton’s truck and the train was still behind ran into the truck when the collision occurred. emphasis upon majority opinion places considerable field, situate
the fact that the between the railroad tracks country open completely the road flat and visible. was thus only This in a situation obtains while the driver of a vehicle is place facing prior on the road the field approach- where he to ing crossing. country the proceeding along While the constantly leaving por- road the driver of a vehicle must be open driving tion of the wide field behind him. Monforton in crossing his toward look straight truck the was able to ahead right, wholly his left to to but he was unable to right look or observe to his rear from which direction the train approached upon and bore him. down When looked right to his he did not and could not see the train because of simple physical the fact that at the time the train was not there to he seen. plat presented evidence,
From the physical and the other following facts the can be demonstrated: prior collision, Fifteen seconds to the when the train then was crossing, 1012.5 feet point approximately from the point plaintiff’s moving at which the truck was ob- first approaching served from open, train across wide flat field, plaintiff’s then truck was 551.25 feet from the intersec- Ninety degree right tion. plaintiff’s vision from truck point at the 551.25 feet from the would intersect point railroad tracks at a crossing. 687.5 feet from the keep only Monforton could see and under observation 687.5 feet from point crossing. to the At such time approaching then 1012.5 crossing, being feet from the rear, some feet to Monforton’s where such train not could fail to see and negligence It by plaintiff. not be seen not that which is visible. observe 100 feet from truck
When reached feet of track train then had 185 approaching intersection Ninety degree vision to crossing. reaching the before traverse tracks intersect truck would right from Monforton’s time train at such crossing. The 123 feet from the away from range One second Monforton’s of vision. within 36.75 from cross- crash, truck was feet point of Monforton’s bearing crossing and then 67.5 feet from the The train was ing. hour. With but speed per 46 miles him at a down *21 train not right, oncoming the was visible degree vision to through the proceeding As Monforton was Monforton. moment o£ engine which at the from behind the
he was hit his truck. right rear and behind at his impact was plaintiff’s of truck examining position the relative In interest- crossing, it is they approached the defendant’s train as truck. rapidly gaining the was the ing how train to note impor- majority opinion of these most from The omission the by the discussion is demonstrated tant of case facts train lead passenger which would speed the of the therein of speed precise some doubt to the that there was one believe in not cannot be speed matter was of the The train. equipped train clearly shows that the was The dispute. evidence attached, accurately tape which speedometer, with a with accident, the Following the speed traveled. recorded the actual engine the and later such from detached and removed tape was tape the portion The introduced evidence. tape was impact train the of the speed of the at time the actual showed supreme the court is now before jury, the and it was before appeal. on this majority opinion, the brakes is said the
Contrary to what prior time to the actual applied not on the train were on engineer was stationed and sat The impact, and collision. engine point at which was the right side of the cab of the 217 The fireman impossible for him see Monforton truck. cab, seat he had a clear occupied at the left side of the where along’ country truck road traveling view the Monforton engineer operating the defendant’s to the fireman’s left. The passenger train testified as follows: going up
“A. Well I in the that’s when noticed the truck diesel, I thing air in front that’s the realized of first * * * at all until I nothing accident. There was said — thing going first I seen there when seen truck in the air.
“Q. you applied Then what do? A. I the brakes.” did speed applied The of the with train brakes relevant applied engine because the brakes were not until after the had struck the truck. speedometer tape
The introduced in shows the miles evidence per hour at traveling. tape clearly which the train was This going- shows that the train and 50 per between 40 miles hour. per measured distance between the miles hour per tape and the 50 miles hour indicated on the of one 6/16 halfway tape, being inch. on the 45 per miles reading, hour per would be an inch above the 40 miles 3/16 tape. hour line tape on Yet line on indicating speed at train’s measured time collision is a 4/16 of per tape. an above the inch hour line mile Thus the traveling hour, per quite excess of but not miles *22 per undisputed 47 miles physical hour. clearly The evidence the going per shows train was at least 46 miles hour when it plaintiff’s into rear crashed the end of truck. physical
The actual evidence the best evidence it and speed. removed all doubt the train’s as to Again, contrary majority to what is said in the opinion, plaintiff negligence not the the did base claimed of the defend- Railway Company upon speed ant the the passenger of train per importance The speed se. train’s actual is either majority opinion overlooked the or the author thereof fails that, Conceding as grasp' point to- of contention. the crossing the as a matter majority opinion “a railroad of states danger”, quoted is a does place law such statement known problem not cover the entire before the court. physi- that a clearly before this it was record court shows fact train was not Monforton’s view
cal that defendant’s There approached crossing. as he is no evidence indicates that Monforton in the record before us that whatever disregarding upon crossing attendant potential danger recognized tracks; should be exercised that care clearly plain- approaching crossing the fact that shown testified, contradiction, time tiff without that from the he crossing continuing headed his truck thereafter toward there, up point feet distant from as one hundred long prior repeatedly thereto as he he could remember looked transpired along* As to from and the railroad tracks. what reaching crossing, after 100 feet from the Monforton testify not shock of the collision blotted out his could because the memory testimony those events. The stands uneontradicted the train and the physical Monforton did not see facts that plain- plaintiff. that train was not visible to Thus was show who, person crossing, recog- toward a railroad proceeding tiff kept place danger, and who a lookout to all nized sides, duty, notwithstanding who testified that as was his train. precautions physical he not see fact these did directly right the train Monforton looked when fact seen. This is obvious also because of the could not be at been time the train had visible if disparity looked, speed between then because Monforton truck, train the train would have reached and Monforton’s and the collision would have occurred. first freight customarily trains It was shown that the used average speed thereon an of about 31 these tracks traveled Therefore, person approaching if a per miles hour. this inter- average directly opposite him section were to see the *23 the track he would know train would have travel farther to road, reach the intersection than a vehicle on the and that the train would hit moving only catch or such if it vehicle were traveling greater speed at a moving than such vehicle. testimony
The only extremely shows that it on rare oc- passenger casions that trains particular were run these ever tracks here involved. When a train is visibile to a traveler country on the road because behind vehicle then the speed of the train overtaking the very vehicle becomes a im- portant in determining what constitutes the reasonable factor part care on the under driver the circumstances. In addi- tion, speed important in determining the duties general toward the traveling public along and across its railroad tracks. speed of the train is an important also factor determining whether the railroad degree exercised that required of care of it public. toward the
Monforton knew that moving a train in the same direction had greater travel distance than he crossing. to reach the Monforton also customary speed knew the of the trains ordi- narily operating over particular these tracks. Thus when a train sight was not in or hearing, he was entitled in the exercise of rely reasonable care upon looking listening.
Here majority opinion places all the burden of care and upon caution general traveling public and none railroad. This was not jurisdiction the law of prior to the majority decision herein. speed important of this train is an factor when determin-
ing question negligence proximate cause. What did the members of defendant’s train crew do when faced with the passenger situation of their train approaching the crossing and rapidly gaining upon plaintiff’s truck, also approaching that, crossing, same but at pace slower and in such manner if or change one the other did not its rate speed stop, collision was engineer bound to occur ? The right seated on the side engine of the diesel pulling the train took no action for the truck had that the collision had occurred
reason engineer suspected or even what before the knew been wrecked *24 horn, the ring the bell nor sound happened. He did not had approaching any warning the train was give whatever nor he had one automobile crossing, notwithstanding observed the directly in front pass approach and over the was concerned the far as the Monforton of him. So he, nothing for reason that at no absolutely did the engineer engine until after his had col- time, the Monforton truck saw it. and wrecked lided with opinion, Monforton
According majority to the constantly him charged duty looking the behind in order with reasonably degree required prudent the of care of a exercise to may railroad, impunity operate with its man, yet the defendant silently warning through crossings, over and trains without widely country roads. intersect traveled implies majority herein the defendant opinion Company charged duty with to look and malee Eailway not a ring bell, horn or looking, their or to sound a other- effective moving warning its fast trains. The whose give wise fireman engine’s duty occupy to a seat on the side of the cab and immediately warning danger pass thereof to there watch engineer, the vehicle. The the did see defen- on to Monforton follows: fireman testified as dant truck? A. I “Q. you When first see Monforton did a train approximately noticed the truck when we were first * * * crossing. from length you you “Q. say When saw truck about a train you length away you many do about feet are know how say I talking approximately about. A. Well would thou- feet.” sand
Here, engine approaching the defendant’s crew wide, open, truck from rear across this unobstructed field approximately until truck not see truck did feet from the intersection. Monforton did not observe
22] approaching yet negligent his rear from he is held any matter of law without determination made as to whether his failure see the train his rear cause proximate to was the of the accident. The fireman never communicated the fact to engineer approaching the Monforton vehicle was engineer’s intersection on the blind side. As to whether testimony would have been effective we or not have engineer as follows:
‘‘Q. you And had taken throttle off back a distance of not too far the train enough would have slowed down No, have hit the truck? A. I think don’t that would any have made difference. But I wouldn’t have reason taken time, late, have the throttle off because our we were and our train, my duty time is fast on that and its to make ’’ possible the best time train. on that class of Yet the engineer defendant’s also if testified that he had *25 cut the throttle at a distance of from the intersection feet his train would have 8 or 10 miles per slowed down hour or enough to have colliding avoided with truck.
As a true mathematical apparent fact it is that 15 seconds elapsed between the time the defendant’s fireman testified he first saw the Monforton happening truck and the of the colli- sion. In those 15 seconds the train brought could have been to a complete stop for the record shows that after the collision the applied, brakes were stopped approximately train in its length being own within However, about one thousand feet. persist the facts the fireman engineer did not warn the impending of the accident for at least 15 after he ob- seconds served plaintiff driving crossing, toward the and that plaintiff was by bell, never warned sound of or whistle horn by he should have engine been the defendant’s crew. negligence part Railway on the Company, of the and its engine crew, constituting proximate cause of the crash were:
(1) Failure of the engineer defendant’s and fireman to keep proper lookout;
(2) upon observing the Failure of defendant’s fireman plaintiff proceeding crossing engineer; toward the to warn the any warning
(3) engineer give Failure of the defendant’s crossing approach of defend- whatever at this established moving train. passenger ant’s fast upon negligence Northern Pa- This is based of the action Railway Company engineer, Henry cific and its locomotive Railway Morris, operation Company’s passenger in the of the railway approached passed train as it over an established and crossing. court, during during
At and trial in the district appeal court, the defendant argument before this engineer, Railway Company, and locomotive admitted its they ring prior or a bell did not blow a whistle conceded occurred, as re- crossing the accident reaching where Montana, by reason quired the laws of the State of thereof, guilty negligence as a matter the defendants were of law. here, 72-219, pertinent provides: so far as
R.C.M. § *# * corporation shall any i-ailroad within state “If in use in this state locomotive fail to have thereon; use shall in fit condition for or a bell and whistle road, approach any highway, permit any locomotive crossing, causing to be sounded the whistle without eighty crossing, fifty and rods from the point at a between until rung from said bell to be * * * misdemeanor, reached; guilty be deemed of a shall first thereof, shall be fined for the and, upon conviction dollars, and for in the sum of one thousand offense dollars, provision, two thousand of the same second violation *26 any provision every further for other and violation and sum not less guilty, before found a it has been twice which than ten dollars.” nor more thousand than five to be the rules and majority opinion declares That the unique. crossings in this state indeed governing law 223 crossing visibility, right angle applying Not content with clear further. goes step a majority opinion here, law the facts to this upon traveling public imposes and It now invokes stop, look listen doctrine. state, repudiated often and Northern Pacific early As in the case of Mason v. 273, this set out Ry., 474, 481, 45 124 court Mont. P. when, traveling public in con
duty imposed upon general duty look for sidering having to to instructions do with trains, approaching it said: correctly states the law.
“Neither of these instructions They imposed great upon plaintiff. If too a burden law, person approaching such a a railroad track were the obliged keep a constant lookout both would either be to him, in directions, upon to or would be incumbent order stop, if imputation contributory negligence, to avoid the necessary, last and look for a train available time, track. at the last moment of before to track must exer- desiring law is one cross a railroad safety. No other cise reasonable care his own burden Emphasis supplied. him.” rests supra, in 1913 case,
This decision the Mason was followed etc., Ry., Chicago, the case of Walters v. Mont. 357, 358, L.R.A.,N.S., 702, P. wherein court said: testimony that,
“The tended to while respondent show approached crossing, he looked and as he he did listened listen,’ ‘stop, question presented look and automobile, appellants approaching whether the driver of an duty railway crossing charged is not with the absolute ‘stop, appellants, that as conceding look listen.’ The using public highway general rule other vehicles upon approaching railway crossing is such to exercise care might expected ordinarily prudent and caution as be of an circumstances, duty person under the insist that ‘the of an approaching driver tracks where there is re- automobile vision, stop, listen, at a stricted look and to do so *27 224 place stopping, looking,
time and and where where and listening effective, duty.’ positive where will be a New H. 21, York Central & R. 21 Maidment, Co. v. 168 Fed. 794, Pennsyl- (N.S.) 413; 93 Brommer C.C.A. v. L.R.A. Co., 577, R. 29 (N.S.) 924, vania 179 Fed. L.R.A. 103 C.C.A.135.) just Both of the decisions cited emanated from n Appeals Circuit, speak- Circuit Court of for the Third ing through they Judge Buffington, proceeded upon and para- mistaken ideas that a railroad has some sort of right public highway mount use crossing, to the of a using highway approaching that whether a citizen stop, listen, such must look depends power amenability is using control; motive and its he rule, as it, whereas the true we understand is that the citizen equal right railway company a/n has with the use crossing, amenability power and the to control of the motive using properly upon may he is bears more how near he place danger taking precautions come to the of before prudence generally requires. that common these Of cases nothing they further need than this: If be said are to be hold, express statute, taken to in the absence that it contributory negligence law, as matter for the driver stop, an automobile not look listen using before crossing, highway regard ordinary without to whether pru- course, they require contrary dence would such a are spirit superior authority to the rule announced (Grand Ry. supreme court of United States Trunk Ives, 408, Sup.Ct. 679, 485) 144 U.S. 12 36 L.Ed. Co. v. weight against general (Texas, etc., Ry. decision are Hilgartner [Tex.Civ.App.], 1091; Pendroy 149 Co. v. S.W. Ry. Co., 433,117 531; Spen- v. Great Northern 17 N.D. N.W. Co., App.Div. 789, York & H. R. 123 108 cer v. New Central Co., N.Y.Supp. 245; Long App. Bonert v. Island R. 145 552, N.Y.Supp. 271; Chicago 130 Hartman G. W. Div. v. Ry., 582, 10; 132 & N. v. Iowa 110 N.W. Louisville R. Co.
225 Lucas, 539; Ky. Rep. 99 S.W. 30 Law v. Atchi- Vance Ry. etc., Missouri, 9 son, Co., Cal.App. 20, 41; etc., 98 P. Ry. Co., James, Tex.Civ.App. 588, 269; v. 120 S.W. Chesapeake (Ky.), 836), & O. R. Co. Hawkins v. S.W. with are conflict the settled rule Mason state. Ry. v. Co., 271; Northern Sprague Pac. 45 Mont. P. Ry. 412; v. Northern Co., Pac. 40 Mont. 107 P. Hunter *28 Ry. 525, v. 22Co., Montana Central Mont. 57 P. In 140. the Sprague appears following: ‘Whether, the selecting Case in point they the select stop ap- did and listen for proaching trains, Nelson Chappel ordinary exercised whether, care to listening effective, doing make their in they what injury occurred, did that until the from they prudence exercised such care and as reasonable men exercised, under like circumstances would ques- have were ” jury tions determine.’ Emphasis sup- fact of for plied. case,
In majority the instant opinion declares that repealed by above rules 1919, law were a statute enacted in being 1947, 72-164, R.C.M. but that such is § not the fact by shown Ry., the case Jarvella v. Northern Pacific 101 102, 115, Mont. 116, 446, 53 451, P.2d in 1935. In decided case, plaintiffs Jarvella had collided with a train which was standing crossing. on a Therein this said: court
“As we understand contention, further defendant’s it urges who stationary one collides with a train of — stationary cars on a cars a crossing — being warning necessity itself a guilty is of of contribu- tory negligence. Many may cases in be found the books holding, varying under circumstances, plaintiffs collid- ing slowly moving with a train of ears or a train of ears stopped which had guilty been on a crossing are of con- tributory negligence. hand, On other other under cases facts somewhat similar those in question hold question contribtctory negligence is one of fact
226
jury. question so raised on It was held where the Ry. v. pleadings Georgia eases of Central of Co. 332, 533, Elliott Heard, Ga.App. 36 136 v. Missouri S.E. Co., 225, 448; 52 like App. Mo. S.W.2d and a Ry. Pac. 227 here, question arose, on a result declared where the verdict, in of Nash motion for nonsuit or directed the cases ville, Ry. Nall, Ky. 554, & L. 33 S.W.2d C. St. Co. v. Co., 508, Spiers 640; v. Coast Line R. 174 S.C. Atlantic 136, Pennsylvania Co., App. R. 46 Ohio S.E. and Short v. Cyc. 77, See, also, N.E. 3 Blashfield’s Automobile 737. supplied. 210.” Law, Ed., Emphasis p. Perm. case, supra, court, in
Following the decided Jarvella M., Ry., P. 107 Mont. Chicago, the case of Incret v. St. collided with cars oc 86 P.2d wherein the Incret moving- hit crossing. plaintiff actually cupying a railroad guilty of Incret was train. This held that the court dissent vigorous law. A contributory negligence as a matter of pointed in that out that which was was filed case amending majority opinion the rules applied were rules Chicago, v. adopted this court Walters declared and law Puget Ry., supra. & Sound Milwaukee *29 of until 1939 when this court Such the status the law Ry. Co., 109 Butte, Anaconda, etc., v. decided the case of Walsh 466, 325, 329. Mont. 97 P.2d In case slowly moving at a train of cars intestate had collided with a railway There, here, com crossing. the defendant as law, contributory negligence, as a matter of pany contended recovery. barred by the held that the case was controlled
However, this court Ry., supra, Pacific in Jarvella v. Northern rules of law set out made “Suggestion is specifically stated: case, appearing in Incret the statement we should overrule of her overrule the rule of case supra, seems to which Ry. 501, 133 P. Co., 47 Mont. & P. S. Chicago, Mil. Walters v. Incret case does overrule (N.S.) 702. The L.R.A. Montana, is the Walters case. The rule still as announced Emphasis supplied. the Walter’s case.” pressed authority
Hard in- position to sustain in the Judge majority stant H. B. Hoffman, case District author of the opinion, upon has comforting quotation seized which his search concluding revealed words of section 72-164 Eevised 1947, originally Codes of Montana of enacted as Section Chapter 151 of the Montana Session Laws of reads follows, statute viz.: may Railroad commission order electric (3842)
"72-164 signal hells installed. Authority hereby given to the board of railroad upon commissioners of the state Montana peti- in writing any tion made county to it board of commis- sioners of Montana, state companies to order railroad to install and maintain electrically operated an bell or other signaling points device at all in the state of Montana where lines, main spurs, or switches of railroad in con- operation tinuous use, operated by them, owned or any public cross lawfully now highway established or here- after laid out within Montana, the state of where adjacent the contour the country to said person such that a approaching highway same said along cannot, at a twenty-five distance of crossing, feet of said obtain an unobstructed view of said railroad track for a distance of one-half mile on either crossing; side of said provided, however, persons driving all motor vehicles public highways state, corporate of this outside of limits of incorporated towns, cities or where view is obscure, moving or when sight train is within or hearing, bring shall said vehicle stop to a full not less than ten nor more than one hundred feet from highway where said intersects railroad tracks within state, before cross- same, ing at all crossings flagman where a aor mechani- cal device is not maintained to warn the traveling public *30 ’’ approaching Emphasis trains or supplied. cars. ease, by years
For rules decided this court the of the Walters ou in Mon- June have been the rules which obtained tana.
Judge Changes forty (47) Buie. Now seven some Hoffman years case, District after this in the Walters court’s decision Judge majority court, Hoffman, speaking of this chooses for a change case, to overrule the Walters and to and abandon by long-established jurisdiction, rules in this govern wholly failing recognize 72-164, supra, so enacted that section change in 1919 rules Walters case does not alter the 72-164, supra, apply and that do not provisions of section case, to the Monforton ob- instant wherein the view scure, sight plaintiff nor moving train within the being precedent which must be found to conditions Monforton 72-164, portion provisions exist before the of section quoted Judge ap- would become District Hoffman or could plicable. only situation which particular
One need examine the factual here instant Monforton case obtained to discover that the can- not be those had reconciled with decisions wherein contributory held as a matter of guilty negligence been be law. case, new opinion, instant has written law majority and it bad Montana law. majority opinion, in being accomplished such
What impose greater upon the case, the instant is to a much burden defendants, imposed than is Monforton Henry Railway Company, engineer, its Northern Pacific giving Morris, looking ahead, and not negligence in not whose approach is passenger train’s warning whatever of the clear and uncontroverted. At district Law This the trial of cause Case. introduced, plain- had been all the evidence
court after designated an instruction tiff Monforton offered judge the trial No. at which time Instruction proposed *31 counsel, any objections?” of inquired you defendant’s “Do have Mr. replied: to which Toole of counsel for the defendants “No objection.” Thereupon judge trial the announced: “It will be given objection”. proposed given without Such instruction was jury to the the as court’s Instruction No. 11. the No. 11, given objec-
Thus court’s Instruction so without tion, became, case, was and is the law of this and as such it is litigant binding parties plaintiff the both and defendants, counsel, judge, jurors their the trial the court, in the district justices supreme and sitting the in the court on this appeal.- trial given The court’s Instruction No. so is in these words, viz.:
“You are instructed that the in defendants this action they ring admit that prior did not blow a bell whistle or to reaching the the occurred, where accident as re- quired Montana, the you laws of the State of and are therefore the guilty instructed that defendants were of negligence as a law for matter of failure blow a whistle ring required by a bell as the laws the State of of Mon- tana. you negligence
“If find that such of defendants was then, proximate collision, event, cause of that you guilty unless find of contributory negligence further, as defined in these instructions and contributory such negligence proximate was a of cause collision, you then must return a verdict for the against and the defendants.” judges, duly district and justices two elected three lawyers appeal, judges, on this sat as
who sat and and not as jurors. jury of court twelve the district found guilty contributory negligence was not and Monforton of justices judges sitting appeal two district and two on the have jury’s power, right but not the to overturn the verdict on contributory negligence. question conclusion, In said Mr. Smith Justice of the Su- Mich. Seamon,
preme Michigan, Sun Oil Co. v. Court of N.W.2d 841 : 387, 84 contributory words, apply
“In the doctrine of other we very person prior whose reckless negligence shield the negligence ‘as a gave rise the crisis which acts caused poor This is driver. part on the matter law’ one, morals, all rolled into poor government, poor law jurisdiction in the first two primary and while we have no third, urge ample I fields, respect to the we have with it.” that we use judgment jury
I affirm verdict would *32 the district court. MALEK, Plaintiffs and DEWEY S. HILL
ESTHER M.
OB
J.
ZUCKERMAN
JOHN
JAMES
Respondents,
v.
Appellants.
STARCZYK,
Defendants
No. 10011.
August 19, 1960.
May 4, 1960. Decided
Submitted
Rehearing
denied
1960.
October