No. 14629 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

DONNA R. RUNKLE, individually and as a personal representative, Plaintiff and Appellant,

VS

# . BURLINGTON NORTHERN et al., Defendants and Respondents.

Appeal from: District Court of the Nineteenth Judicial District, Honorable Robert Holter, Judge presiding. Counsel of Record: For Appellant: Hoyt, Trieweiler,Lewis & Regnier, Great Falls,Montana John Hoyt argued, Great Falls,Montana For Respondents: Kroschel, Peterson and Koolen, Billings,Montana Kent Koolen argued and Gary Peterson argued,

Billings,Montana

Submitted: December 11, 1979 Decided: 

### 3U)\C

### 16

# 1m

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court. Appeal is by theplaintiff from a judgment entered in the ~istrict Court,Nineteenth Judicial District,Lincoln County. For the reasons hereafter statedwe reverse and remand for a new trial. On March 24, 1976 at about 9:00 p.m., a Burlington Northern freight train and a jeep pickup driven by David Runkle collided at the Third Street crossing in Troy, Montana. Third Street is an asphalt roadway running generally in a north-south direction which crosses the Burlington Northern tracks running in an east-west direction. Runkle

was driving south to north and the trainwas proceeding west to east. The Third Street crossing bisects the town of Troy and is the only way for vehicular traffic to proceed from one side of the town to the other. At or about the time of the collision, it had been raining in Troy and the plaintiff contends that under the weather conditions the visibility was poor, and because of theplacement of buildings, structures,and lights, the crossing was more than ordinarily dangerous. There is a dispute in the evidence as to whether Runkle stopped his vehicle before crossing the railroad tracks, the railroad

crew testifying that he did not stop,but others testifying that the railroad crewhad stated following the incident that Runkle did in fact stop his vehicle. The crossingwas protected by a stop sign and crossbucks; there were no electric gates orwarning signalsplaced there at the time. The train approached the crossing at a "track speed"of 40 miles per hour. David E. Runkle died as a result of the collision. He is survived by his wife, Donna K. Runkle, and sixminor -2-children. Donna K. Runkle sued Burlington Northern and

one of its employees for damages claimed to have arisen out of his death. The case was tried before a jurywhich returned

answers in itsverdict on special interrogatories. The jury found the defendants 31% negligent, and the decedent 69% negligent. The court entered judgment in favor of the defendantsand this appeal followed. We reverse this caseprincipally on the grounds of instructional error and error in refusing certain evidence. In supportof the District Court,we point out it was presented with over 150 instructions in this cause, counting amendments; the correlative rights and duties of railroads and automobile driverspassing over railroad crossings has not been clearly enunciated in our statutes or in prior decisions of this Court; and the admissibility of postaccident remedial actions under the new Montana Rules of Evidence has only lately been defined by this Court. We will expand the recital of facts when necessary to explain the issues. ON -- THEADMISSION OF -EVIDENCE Of the 19 issues raised by plaintiff on appeal, 9 relate to refusalof testimonial or documentary evidence. The court excluded evidence of prior accidents at the same crossing. Appellants sought to introduce such evidence to show that the railroad had notice and knowledge of the hazardous conditionof the crossing. Evidence of prior accidents,while inadmissible for the purpose of proving negligence, isnevertheless admissible for the purpose of showing the existence of a danger or defect and notice thereof. Robinson

### v. F. W. Woolworth Co. (1927), 80Mont. 431, 261 P. 253;O'Flynn v. City of Butte (1908),36 Mont. 493, 93 P. 643. Such evidence of prior accidents, however,must show situations substantially similar to or not too remote from the accident in question, although absolute identity of circumstances is not necessary. 70A.L.R.2d

"One of the principal qualificationsof the rule rendering evidence of prior similar accidents admissible for certain purposes is that it must appear, or at least the preliminary proof must tend to show, that the former accidents happened under circumstances substantially the sameor similar to those existing at the time of the injury forwhich suit isbrought, and that the instrumentor agency which caused the injurywas in substantially the same condition at the time such other accidents occurred as it was at the time of the accident in question." 29 Am.Jur.2d Evidence, 5305, at 351. The difficulty here is that from our review of the record,we do not find an offer of proof as to what the prior accidents would have shown. We are unable to determine the question of their admissibility. If the accidentswere indeed not similar, the trial courtwas well within its discretion to exclude such evidence. When the reviewing court cannot ascertain the evidence which is excluded by the granting of a motion in limine, the law is clear there is no reversibleerror. Hermannv. Merrill Lynch, etc. (1977), 17

Likewise, appellants sought to prove the existence of automatic warning signals on other crossingson the railroad in northwestern Montana. This evidencewas offered so that appellants could show,by the introductionof such evidence, that crossings which were less dangerous and with less vehicular traffic count were nevertheless equipped with automaticwarning devices,while the Troy crossingwas not

so equipped. The trial court excluded this evidence on the basis of relevance. Here again the discretion of the District Court controls. In Jensen v. Southern Pacific Company (1954),129 Cal.App.2d 67,276 P.2d 703, 708, similarevidencewas refused in the District Court and the appellate courtupheld, stating that the "[Dleterminationof relevancy, including similarityof conditions in such a case, is primarily the function of the trial judge." However, the District Court denied all evidence of automatic signals that were installed at the Troy crossing after this accident. Appellant sought to introduce such evidence for several purposes, one ofwhich was to impeach witnesses for Burlington Northern who had testified that the crossing was not extra-hazardous. With respect to subsequent remedialmeasures, Rule 407, Mont.R.Evid. provides: "When,after an event,measures are takenwhich, if takenpreviously,would have made the event less likely to occur, evidence of the subsequent measures isnot admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequentmeasures when offered for another purpose, such asproving ownership, control, or feasibility ofprecautionarymeasures, if controverted, or impeachment." In two recent cases, this Court has held that evidence of subsequent remedial measures offered for impeachment is admissible. Cech v. State of Montana (1979), -Mont

# .

, 604P.2d 97, 102, 36 St.Rep. 2185, 2192; and Lawlor v. County of Flathead (1978)

## , -Mont

# . , 582 P.2d 751, 35 St.Rep. 884. See also, State v. District Ct. of Fourteenth Jud. Dist. (1977),

### -Mont. 

## , 572 P.2d 201, 34 St.Rep. 1447. In Cech, the installationof an additional portion of guardrail after an accidentwas admitted to counter the state's testimony that a recovery area was preferable to the guardrail and that the absence of the guardrail conformed in every way with acceptable standards. In Lawlor, the repair of a chuckholeby the county two days after the accidentwas admitted to establish feasibility of repair and to impeach testimony given by a county road foreman.In this case, experts testified for the railroad that the crossingwas not extra-hazardous. The fact that automatic signalswere installed on the crossing after the accident would have been relevant for the purpose of impeachment aswell as to show feasibility. Itwas prejudicial

error to exclude this evidence. A further issue with respect to the admission of evidence revolves around the refusal by the DistrictCourt of minutes of the town council of Troy and of letters between the town council and various railroad officials concerning the hazards of the crossing. Appellants contend that these letterswere evidence of the amount and kind of notice that the railroad had respecting the hazardous conditions of the crossing, the need for flashing signals, flagmen,or other safety devices, and were further important in connectionwith claimed punitive damages to show that the railroad wantonly placed its economic advantage ahead of safety considerations at the crossing. The railroad, on the other hand, contends that the testimonial evidence otherwiseadmitted fully showed the jury that the citizens of the town of Troy were concerned about the hazardous condition, that the town council had passed a resolution relating to a speed limit to be imposed

on the trains passing through Troy and that appellants' contention that the railroad stopped the imposition of a town speed limit on trains by threatening to take the town to court is an unfair contention. The District Court had granted a motion in limine to exclude the minutes of the town council aswell as the letters because the town had not adopted an ordinance, as distinguished from a resolution, thatwould have the force and effect of law in imposing a speed limit on trains. -6-The record shows that as early as October 1974, the town councilhad received citizen requests relating to slowing the speed of the train through the town of Troy and the need for other safety devices. Correspondence ensued with the railroad about thesematters. The town council passed a resolution,as distinguished from an ordinance, to impose a 25 mile per hour speed limit on the trains. In response,railroad officials met with the town council and offered objections to the speed limits, including the railroad's need to be competitive. The appellant contends that the speed limitwas never enforced, nor an ordinance adopted, because of the threatof the railroad to take the matter to court if necessary. The documentary evidencewas relevant to these issues. As such, "[all1 relevantevidence is admissible. 

# . ." Rule 402,Mont.R.Evid. Theminutes of the town councilwhich set forth its "regularly conducted and regularly recorded activities", Rule 803(8), Mont.R.Evid., are admissible as public records and are excepted from the hearsay rule. Letters between the town council and the railroad, and intercorporate memoranda between railroad officials on the subjectmatter of the crossingwere likewise admissible and relevant to show notice of the claimed hazardous conditions,and the intent of the railroadwith respect to the same. Of course, letters from the town council or town officials to persons other than railroad personnel (forexample, to senatorsor other elected public officials)would not be admissible unless the railroad personnel participated in the correspondence. The intercorporate memoranda are relevant as possible admissions by a party opponentwithin the meaning of Rule 801(d)(21, Mont.R.Evid., and the letters are within the business recordsexception to the hearsay rule,Rule 803(6), Mont.R.Evid. The fact that an ordinancewas notpassed, which would have a binding effect on the railroad, does not prevent the admission of documentary evidence which would establish the resolutionof the town council, and how that brought to the notice of the railroad officials the claimed hazardous conditions. These documents go to the issue of ordinary care to be exercised by the railroad and may indeed go to the issue of punitive damages, as an indication of wantonness or oppressiveness. Whether the railroad had notice of the hazardous condition to the extent that in the exercise of ordinary

care it should have moved to reduce or eliminate the hazards, and whether it acted wantonly or oppressively in not so moving, were fact issues which existed independently of the minutes and the council letters. Accordingly,we are not called upon to apply thebest evidence rule (See29 Arn.Jur.2d Evidence S449, at 510.) Nonetheless, the documentary evidence here was superior to the testimonial evidence,particularly of those witnesseswho would admit only that therewas "some concern" or "somediscussion"as to the hazardous conditions being brought to the railroads attention, and the need for a slowdownof the train or additional warning devices. DUTY OF A RAILROAD REGARDING GRADE CROSSINGS Beforewe proceed to the next issues, it is necessary to provide some additionaldetails from the record. As may be gleaned from the foregoing discussion respecting the townminutes and the intercorporate memoranda, ongoing issues during the trial of this cause related to the duty of the railroad to recognize the Third Street crossing as one requiring more than a crossbuckwarning sign; its duty in -8-regard to the speed of the trains through the crossing, and particularly its duty in the light of the provisions of the Federal-Aid Highway Act of 1973,Pub. L. No. 93-87, 87 Stat. 250;and section 61-8-203,MCA. Throughout the trial, itwas theposition of the railroad, that "asa part of United States law" under the Federal-Aid Highway Act of 1973, railroad grade crossing signalsare for the benefit of the public and the railroad

was not to bear the cost of the installation of such signals. Yet the Federal-Aid Highway Act of 1973, Pub. L. No. 93-87, has no language in it that specifically states that a railroad does notbenefit froma grade crossing installation. That Act is an increment to 23 U.S.C. 130,a section which does in factprovide for a determination to be made as to the net benefit to a railroad in connectionwith railroad crossings. However, the 1973 Act was adopted 

### by Congress for the purpose of entering upon a threeyear program for the betterment and upgrading of railway grade crossingsto improve safety. Monies were supplied to that program, one-third of which

were to be used in "off-systemcrossingstt(an off-system crossingwas one such as Third Streetwhich was not a part of the federalhighway aid system). A subsequentmanual published by the federal government indicated that no cost for grade crossing installationswas to be recovered from the railroad under the 1973Act. The impression left in this case by the questioning of the railroad on the effect of theAct required the court to give as an instruction the statement that theAct did not abolish any responsibilities

on the part of the railroad concerning its duties to the public at a railroad crossing. The railroad further contended, however, that under sections 61-8-203, 61-8-706(1), and 61-8-712,MCA, installation -9-of crossing signals by the railroad, as a "private corporation,"

was amisdemeanor and could be declared a public nuisance. That contention arose in thisway: Under section 61-8-202, MCA, the State Highway Departmentwas required to adopt a manual and specifications for a uniform system of traffic control devices throughout the state. Themanual was prepared by the Department,and it is referred to as the Manual for Uniform Traffic Control Devices (MUTCD). Both sideswere contending,erroneously as we shall show, that the manual bespoke the state law on the subject of traffic control devices. The railroad contended on its part that the manual

was "thelaw of the state of Montana" and the guides therein set forth the only legal requirements facing a railroad in this situation. Thus when Douglas Morgan, an employee of the State Highway Department, was under cross-examination, he stated that the responsibility for the installation of traffic signals on railroad crossings rested on local jurisdictions and that local jurisdiction could act only after engineering studies had been carried out. Morgan testified that if the railroad wanted to volunteer to install such traffic control signals, the state government (theHighway Department)would allow it,but that therewas no "responsibility

or no rightplaced on the railroad to do it, absent the responsibility of the State of Montana." For example: "Q. And now could the railroad do anything more thanmerely assist the town of Troy in obtaining any federal funds thatmay have become available? A. Inmy mind they could.



### "Q. Well did they have the legal obligation under theMUTCD to do anything more than that? "MR. HOYT: Objection. This is asking this witness for a legal conclusion. That the MUTCD speaks for itself."THECOURT: Overruled. "THEWITNESS: Repeat the question please. "Q. Do they have a legal obligation pursuant to the MUTCD to do anything more than assist? A. I don't believe so. Not under the MUTCD. "Q. That is the State law of Montana? A. That has been adopted." And again later in his cross-examination:

"Q. You have previously testified, have you not, that the responsibility to put signals in rests with either the local authority orwith the Montana State Highway Department? "MR. HOYT: Objection, exceeding the scope of redirect examination. "THECOURT: It is repetitious. Sustained. "Q. Mr. Morgan--and you felt this was a crossingwell-if youmade the determination that this crossing is a hazardous one and needs signalization, then I would take ityouwould agree that itwould be the state's responsibility to replace signals. "MR. HOYT: Same objection. "THECOURT: Overruled. "WITNESS: Itwould be the responsibility of the State to attempt to work with the railroad to get signals installed there, right." Thus the jurywas given the impression that it was partly the duty of the State of Montana or the town of Troy to make the Third Street crossing saferby installationof safetydevices. It also developed in the evidence that on July 22, 1975,employees of the State Highway Department met with representativesof the railroad and local authorities,and had then determined that the Third Street crossingwas indeed hazardous, and that it required flashing signals and the installation of short-arm gates which would be actuated by any approaching train. The installationof these safety devicesmay have been awaiting the red tape procedure that inheres in any federal funding project when the fatal accident in this case occurred.Section 69-14-602,MCA, makes it the duty of every railroad to constructand maintain "agood and safe crossing" outside of incorporated towns. No similar statute fixes such a duty on the railroad regarding grade crossings within incorporated towns, but most certainly a railroad has a common law duty in the exercise of ordinary care to operate its railroad and to provide such warning devices as reasonable and prudentpersons in the same circumstanceswould operate

orprovide. The Federal-Aid Highway Act of 1973 represents an effort by the federalgovernment to improve the safety of grade crossings, and to provide funding for the same. That act does not lessen in any degree the duty, statutory or

common law,of a railroad to maintain a good and safe crossing. The Manual on Uniform Traffic Control Devices (MUTCD), promulgated by the Montana Highway Department,may be considered as a standard or norm to be used for traffic control devices. Itdoes nothave the force and effect of law in determining the duties and responsibilitiesof a railroad with respect to the safety of grade crossings. Thus the fact that the Montana Highway Department or the town of Troy had not officially acted to require the railroad to provide traffic control devices other than the crossbucks is not in itself sufficient to absolve the railroad of its common law duty, if it existed, to provide a good and safe crossing. In addition, itwas a jury question whether, under the circumstances known to the railroad at and before this accident, the railroad itself should have reduced the speed of its trains over the Third Street crossing. This Court stated theseprinciples in Jarvellav. Northern Pac. Ry. Co.

(1935),101Mont. 102, 113, 53 P.2d 446, 450,when it said:"It is noteworthy, inpassing, that the mere fact that no statute exists,or that no order by an authorized person has been made requiring gates or other safety devices at crossings,will not ipso facto relieve the railway company from the duty of providing safety devices at crossings sufficiently dangerous to require them." We considered the statusof the Manual on Uniform Traffic Control Devices inWilliams v. Maley (1967),150 Mont. 261, 267-69, 434 P.2d 398, 401-02. There this Court said that the manual did not have a status equal to statute. We alsomade reference to the fact that itwas unlawful for anyone other than the State Highway Commission to erect signs on highways. However, neither that case,nor section 61-8-203, MCA, should be read to mean that a railroad in the exercise of ordinary caremay not itself place warning devices and signs upon its own property or volunteer to place the same on state roadways upon notification to the State Highway Department. Itwould not thereby either commit a misdemeanor or create a public nuisance. Thus itmay not be enough for the railroad to protect its crossingwith a standard crossbuck, to operate a train within a speed limit or to blow the whistle and ring the bell. The jury is stillpermitted to determinewhether the railroad exercised reasonable care and caution under the circumstances and conditions existing at the time of the accident. Whether a railroad is negligent in a particular manner, such as in failing to provide automatic crossing gates, oscillating headlights, flasher lights,or in failing to reduce its speed is a question of fact for the jury. DeElenav. Southern Pac. Co. (19791,121Ariz. 563, 592 P.2d 759, 762; Seaboard Coast Line R. Co. 

### v. Buchman (F1.App.

FURTHER TESTIMONIAL EVIDENCEWe turn now to the contentions respecting three items of testimony to which objections were sustained by the DistrictCourt. DennisWelch was called. He had been a town councilman at Troy the year before this accident, and as a councilman made a motion at one of the council's meetings to have the Burlington Northern reduce the speed of its trains to 25 miles per hour through town. Welch was also an employee of the BurlingtonNorthern. Theplaintiff offered prove thatwhile Welch was atwork following that council meeting hewas called on the telephoneby an official of the Burlington Northern who stated, according to Welch: 

# ".

. . I amnot sure of his exactwords. I do recall he told me 'yes, I seehere by your records or by the file thatyouworked with the railroad since June 4th, 1966 and you have worked for the railroad long enough to knowbetter than to suggest reducing the speed of trains because of the fact thathe went on to explain that Ibelieve economic stability of it is costly and so forth.

### '" After the conversationwith this official,Welch resigned from the town council because, "90%of the reason"was he felta conflict of interest. The District Court excluded this evidence. Plaintiffs had raised the issue ofwantonness or oppressiveness as the basis for establishing punitive damages. Clearly, if the railroad in facthad utilized itsposition as employer to exert a formof duress upon its employee, acting in an official capacity, such evidence might have a bearing in the mind of the jury to demonstrate wantonness or oppressiveness sufficient to establish a basis forpunitive damages. Section 27-1-221, MCA. This testimonywas admissible on the question of the railroad's negligence and on the issue of punitive damages. Plaintiff also called BertWinslow, the Troy city judge,who testified thathe attended a council meeting in -14-January and February of 1975with other citizens of the town of Troywhen Burlington Northern representativeswere present including a man named Mr. Mitchell. Plaintiffs offered to prove thatWinslow personally requested Mitchell to have the Burlington Northern slow its trains to 25 miles per hour; thatMitchell refused to do so and thathis attitude "was very callous"and evidenced a total disregard for the welfare of thepeople of Troy. The court denied the offer of proof. The District Courtwas correct in denying the offer of proof with respect toWinslow for two reasons: Winslowwas not acting as an official of the town of Troy at the time he made the request,and Mitchell's attitudemay have been personal and not the attitude or a reflection of theposition of the railroadwith respect to the crossing. A third witness, whose testimonywas denied,was Harry Wasserman,police chief of the town of Troy. If allowed to testify,hewould have statedhe crossed the Third Street crossing several times daily, that he had been in close proximity to hear any bell sounded on the numerous freight trains as they passed through the crossing during a day; that he had never heard a bell sounded by any freight train

as itpassed through the crossing. The evidence was offered under Rule 406(b), Mont.R.Evid., on the basis of custom and habit, but refusedby the District Court. We find the court to be correct in this ruling. So many variables enter into the proposed testimony of Wasserman that itsprobative value as towhether the bell was sounded

on the night of the accident is to be doubted. The makes and types of freight engines, the different kinds of bells thatmight be installed in the various freight engines, thedegree of attentionwith which the listenermay have focused

on the sounding of bells as the trains passed the intersection, the different engineers who would have been involved, all make it doubtful that such evidence of habit or custom would indeed reflect that the crew in this case did not sound the bell when their ownpositive testimony had indicated that they had performed that duty. See 59A.L.R.2d 1379. The foregoing relates to items of evidence and testimony that were refused by the District Court. Two other items ruled upon by the DistrictCourt are raised as issues and requirediscussion by us. The plaintiff presented the testimony of Gerald R. Cysewski, as an expertwitness on the subject of design at grade-railway highway crossings. Defense counsel crossexamined the expert through the use of a "Report 50" promulgated by theAmericanAssociation of State Highway Officials. A caveat in the report indicated that the opinions and conclusions were those of the researcher and not necessarily those of the highway officials. Cysewski testified Report 50was not authoritativebecause of errors and contradictions. A witness, Ken Cottingham, who appeared as an expert on defendants' behalf, testified that the reportwas used extensively in his work and that he personally verified its accuracy. Plaintiff objected to the use of Report 50 in crossexaminationof Cysewski since itwas not verified by him as accurate. Defendant contends that under Rule 803(18),Mont. R-Evid.,such treatises are permissible for use in crossexaminationof an expert, where a treatise is "established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice." Under the rule, the reliability of the treatise, if -16-not admitted by the person being cross-examined,may be established by the testimony of another expert, or by judicialnotice. This being the case, no error occurred through the courtpermitting the use of Report 50 for cross-examination of Cysewski. Plaintiffs called Martin Flom, a visual expert, and offered to prove through him that certain forms of lighting

on trainswere available to the railroad industry and to Burlington Northern inparticular. In that connection, plaintiff endeavored to use through Flom, a treatise entitled, "TheVisibility and Audibility of Trains Approaching Highway Grade Crossings",dated May 1971,and promulgated by the Departmentof Transportation. Again a caveat appeared in this treatise that the contents of the report reflected the opinions of the researchers and that the report did not constitute a standard, specification or regulation. The intentof the plaintiff in the use of the treatisewas to establishnegligence on the part of the railroad by showing the kinds of lighting equipment available to railroads in the operationof their trains. However thiswas advisory material only and as such is inadmissible aswe held in Hackley v. Waldorf-Hoerner Paper Products Co. (19671,149 Mont. 286, 294-295, 425 P.2d 712, 716. We do not by citing Hackley v. Waldorf-Hoerner Paper ProductsCo., supra, endorse all that is said in that case about codes or standards of safety issued by governmental agencies. Later decisions seem to be moving toward acceptance in evidence of such advisory material with certain qualifications. Such treatisesmay be admitted upon foundation that they (1) showwhat is feasible to the jury, or (2) show what the defendant knew or shouldhave known about safety precautions. Charleston Nat. Bank v. International Harvester Co. -17-(1974),22 Ill.App.3d 999, 317N.E.2d 585. Unless the codes

or standards are adopted by a governmental agency so as to have the force of law, they are not to be admitted as conclusively determining the standard of care imposed upon the defendant, CharlestonNational Bank, supra, nor as substantive evidence of negligence, unless coupled with a showing of general acceptance in the industry concerned. See Lemery v. O'Shea Dennis, Inc. (1972),112N.H. 199, 291A.2d 616. In this case the holding in Hackley v. Waldorf-Hoerner Paper Products Co., supra,applies to Flom's treatise because the necessary preliminary proof is lacking. We point out thatwe are not inconsistent in upholding the use of Report 50 and the denial of the Flom treatise. Report 50was verified as accurate,was being used as authoritative by an expert witness, and was used at trial to test the knowledge of another expert witness in cross-examination. Thepreliminary proof for its use camewithin the general rulewe have set forth above. INSTRUCTIONAL ERROR We find prejudicial error in the giving of the following instructions: Instructionno. 24: 

# ".

..The court has taken judicialnotice that the manual on Uniform Traffic Control Devices is the law in the State of Montana 

# . .." ~nstruction no. 26: "Youare instructed that: section 1A-3 of the Manual on Uniform Traffic Control Devicesprovides: 'Thedecision to use a particular deviceat a particular location should be made on the basis of an engineering study of the location



# ..

# .1 II Instruction no. 29: "Youare instructed that: The laws of this Stateprovide as follows:"'The Departmentof Highways and local authorities may designate particularly dangerous highway-grade crossingsof railroads and erect stop signs at these crossings. 

# . .I II Instructionno. 35: 

# ".



# .. The responsibility for traffic control devices rests on a multitude of governmental jurisdictions." Instructionno. 36: 

# ".



# .. It is for you to determine whether the Third Street crossing in Troy,Montana onMarch 24, 1976,was a rural or an urban crossing." Instructionno. 37: 

# ".

.

# . If you find from the evidence that a party to this action having a duty to comply with the Manual on Uniform Traffic Control Devices conducted himself in violation of the Manual on Uniform Traffic Control Devices, such conductwas negligent as a matter of law." Instructionno. 47: In general, this instruction informed the jury that the members of the crew operating the railroad train had the right to assume the exercise of due care by the otherparty. InstructionNos. 24 and 26: The excerpts from the Manual on Uniform Traffic Control Devices (MUTCD) should not have been submitted to the jury in the form of instructions. They do not have the force of law, aremerely advisory, and until the State Highway Commission acts with respect to them, they do notplace a duty on any party. See Williams

v. Maley, supra. Instead, the jury should have been instructed

on the statutory duties of the railroad with respect to operating trains over its crossings, its common law duties with respect to safety in the exercise of ordinary care, and

as a correlative matter, the duties of a motorist, both statutory and common law at a railroad crossing. Billings Leasing Co. v. Payne (1978),

### -Mont

# . , 577 P.2d 386, 35 St.Rep. 399, InstructionNo. 24was incorrect as a statement of law, and InstructionNo. 26 was useless andIn the sameway, InstructionNo. 29 did not relate either to the duty of the railroad or to the motorist and should not have been given. InstructionNo. 36 was meaningless because the jurywas not told what different legal resultswould depend on whether the crossingwas rural or urban. InstructionNo. 37, on the duty to complywith the Manual on Uniform Traffic Control Devices,

was improper because no formal actionwas taken to impose a duty under that Manual upon the railroad. InstructionNo. 47, concerning the right of the railroad to assume the ordinary care of a motorist is not applicable unless the party having the right to assume is also exercising ordinary care. The right to assume due care of another springs from the rule that every person who is exercising ordinary carehas a right to presume that every other person will perform his duty and obey the law. Tucker v. Lombardo (1956), 47Cal.2d 457, 303 P.2d 1041, 1047-1048. THE PUNITIVEDAMAGES ISSUE The court withdrew the issue of punitive or exemplary damages from the jury. Under the state of evidence in this case, the District Courtwas not in error, but suchmay not be the case in a retrial of this cause. We have already adverted to the minutes of the Troy town council, and the intercorporatememoranda, aswell as the testimony of Dennis Welch which should have been admitted. The resulting record in a retrialmay well present an issue of punitive damages for determination by the jury. Poeppelv. Fisher (1977), Mont. 

### , 572 P.2d 912, 34 St.Rep. 1491. If the evidence on retrial should show that the railroad had either a statutory or common law duty to ameliorate the alleged dangerous circumstanceof the Third Street crossing,and failed to do so, itwould, of course,be acting negligently. Jarvellav. Northern Pac. Ry. Co., supra. If in addition, the railroad took action on its own to avoid such amelioration, with knowledge of the danger, its conductwould be unjustifiable, which amounts to malice in law. Fauver v. Wilkoske (1949), 123Mont. 228, 211 P.2d 420. In that situation, a jury may award punitive damages in addition to actual damages for sake of example and by way of punishing defendant. Section 27-1-221, MCA; Fergusonv. Town Pump, Inc. (1978), -Mont

# .

, 580 P.2d 915, 35 St.Rep. 824. AUDIBILITY OF THE WHISTLEAND BELL 

### -- -- Appellants contended throughout the trial that the whistle and bell were not sounded in advance of the collision, and that the bell was not audibly effective. The railroad employees testified that the whistle was blown from the whistle post one-quarter mile from the crossing, and the bell on the locomotivewas rung. We find no case discussing particularly whether the bell must be audible for the statutory distance. Section 69-14-562(7),MCA, requires a whistle to be blown and the bell to be rungwithin a distance from between 80 rods

(1,320feet) to 50 rods (825 feet)until the crossing has been reached. It seems obvious that the legislative intent is that such signals be audibly effective to persons on foot or in vehicles approaching or crossing over the intersection with the railroad. We find the legislative purpose to be satisfied if either the whistle or the bell, both being sounded for the statutorydistance, gives an audible warning to others using the grade crossing sufficiently effective that a collision with the train can be avoided in the exercise of reasonable care. -21-WHETHER THIS JURY SHOULD HAVE FIXED DAMAGES 

### -- -- Appellant contends the jury should have fixed the amount of damages, even though it found the appellant 69% negligent, and the railroad 31% negligent. No error occurred in this case,however. The jury simply followed the instructions given and the form of the special interrogatories. Appellant had approved the form of the special interrogatories. For the foregoing reasons, the judgment is reversed and the cause remanded for a new trial.

Justice

We Concur: 

# /7 ief Justice

Justices

Hon. Gordon Bennett, District Court Judge sitting in for Mr. Justice Daniel J. SheaMr. ~ustice John C. Sheehy, specially concurring: The law inMontana is indeed confusing with respect to the duty of railroads and motorists at railroad grade crossings. Because this case is being returned for retrial,by way of suggestiononly, Iwould submit the following instructions for consideration by the parties and the court. The instructions assume the same record aswe now have before us and might not otherwise be applicable; moreover, I offer no guaranty that

on a subsequent reviewmy fellow justices would agree. The citations,of course,would not be a part of the instructions when submitted to the jury: 1. The statutory duty of the railroad in this casewas to sound its whistle and ring its bell at a point between 80 rods (1,320 feet) and 50 rods (825feet) from the crossing. Ithas this duty regardlessofwhether any person or vehicle is on or approaching the crossing and regardlessof the dangerous condition, if any, at the crossing. Ifyou find from

a preponderance of the evidence that the railroad did not perform this duty, such failurewould be negligence as a matter of law. Section 69-14-562(7), MCA. 2. Implicit in the statutory requirement that the railroad sound itswhistle and ring a bell upon approaching a crossing is that such whistle or bell be audibly effective, that is, that one or the other could reasonably be heard by persons on or approaching the crossing on foot or in vehicles. If you find from a preponderance of the evidence that neither the whistle nor the bell were sounded as required by law, or that d~ the whistle nor the bell could be heard at the crossing if sounded from a point between 1,320 to 825 feet in advance of the crossing, then again the railroad would be negligent as

a matter of law. Section 69-14-562(7),MCA.3. The only statutory requirement as to lights on a railroad locomotive is that itmust be equipped with a headlight of at least 1,500 candlepower measured without a reflector. If the evidence shows this,or if there is no dispute about it, then this statutory requirement is fulfilled. Section 69-14-236(1)(a),MCA. 4. There is no statutoryduty imposed on a railroad to provide oscillating headlights on its locomotives, running lights on the sides of its locomotives,electric warning signals or automatic gates on crossings, flagmen,or other safetymeans or devices, unless ordered by a public authority authorized by law to do so. In this case there is no evidence of any such order by a public authority. Further there is

no statutory limit on the speeds of trains passing through a city or town unless a public authority empowered to do so ordered a speed limiton such trains. None appears here. 5. A breach of a duty imposed by statute or ordinance is called negligenceper 

### -- se, that is, the breach is negligence

as a matter of law. A person or corporation can be found negligent however, even if its conduct does not offend a specific statuteor ordinance, when the conduct involved does notmeet the standard of "ordinary care." Jarvella

### v. Northern Pacific Ry. Co. (1935),101Mont. 102, 53 P.2d 446. 6. Every person or corporation is responsible for injury to the person orproperty of another caused by want of ordinary care or skill. Negligence means suchwant of ordinary care or skill. Suchwant of ordinary care or skill exists when there is a failure to do thatwhich a reasonable and prudentperson would ordinarily have done under the circumstances,or doing that which suchperson under the existing circumstances would not have done. Section 27-1- 701,MCA.7. Applying the standard of ordinary care to the duty of the railroad in this case therefore, the mere fact that

no statuteor ordinance exists, or that no order by an authorizedperson or body has been made requiring certain headlights,warning lights, gates, flagmen,or other safety

means or devices at the crossing, will not relieve the railroad from its duty of providing such,at railroad crossings sufficiently dangerous to require them, if reasonable and prudent persons in the exercise of ordinary care would have provided them under the same circumstances. Jarvella v. Northern Pac. Ry. Co., supra. 8. Likewise, if under the same standard of ordinary care, reasonable and prudent persons would have slowed or reduced the speed of the train under the circumstances here, failure to do sowould constitute negligence, although no ordinanceor statuteexisted requiring such slowing or reduction of speed. 9. If you find from a preponderance of the evidence that the railroad did not exercise reasonable care under the circumstances, such failure to exercise reasonable care should be considered as negligence. 10. The railroad and its employees are not relieved of their duty to exercise ordinary care because the permission of public officers or other bodiesmight have been required for the railroad to perform such duty, or that governmental agencies might have a part in funding additional safety devices on highway-railroad crossings. You should consider only in this connection whether the railroad had sufficient notice in advance of this accident of a dangerous condition at the crossing that, in the exercise of ordinary care, it should have moved to reduce or eliminate the dangerous condition. 11. In consideringwhat is the standard of ordinary care to define the duty of the railroad in this case,you -25-may consider the evidence of the Manual for Uniform Traffic Control ~evices(MUTCD)drawn up by the StateHighway Department,ormanuals of operation drawn up and used by the railroad itself. Whether the railroad conformed to such requirements is relevant and should be considered,but these

are not necessarily controlling on the question of whether the railroad and its employees exercised ordinary care, for that question in this casemust be determined by you on the basis of such ordinary care aswould have been used by reasonable and prudent persons under the circumstances existing here. 12. The driver of an automobilehas a duty under Montana law to stop his vehicle at a place between 50 to 15 feet from the nearest rail of the railroad crossing and not to proceed until he can do so safely,but his duty to stop exists only if (1)a train is within 1,500 feet of the crossing,and emitting an audible signal from such distance, and the train because of its speed and nearness is an immediate hazard; or (2) if the train isplainly visible and in hazardous proximity to the crossing. The driver is also statutorily required to drive his automobile at an appropriate reduced speed as he approaches and drives across such crossing. Again, a breach of either of such statutory duties by the driverwould be negligence as a matter of law. Sections 61- 8-303(5)

### ,and 61-8-347,MCA. 13. Apart from such statutoryduties, the driver of a motor vehicle canbe found negligent if he fails to exercise ordinary care to avoid injury to himself. The term "ordinary care"has the same definition for the driver as for the railroad. 14. The driver of a motor vehicle is required to keep

a lookout, not only straight ahead, but laterally ahead. He -26-is presumed to see that which he could have seen in the exercise of ordinary care. 15. A railroad crossing is itself a warning of danger to the driver of a vehicle approaching orpassing over the crossing. The train, if it is visible in the exercise of ordinary care or if its approach canbe detected in the exercise of ordinary care by such driver, is also a warning of danger. 16. In ordinary circumstances,the train has a right ofway over its track when a motor vehicle approaches or
crosses the railroad crossing which the train is approaching

orpassing over. Ifyou find that the railroadwas not negligent in the operation of its train, ithas a right to rely on its right ofway. The railroadmay not rely solely

on its right of way, however, if the train is being operated inviolation of statutory duties or in want or ordinary care, and suchviolation orwant of ordinary care is a proximate cause of the collision. Flynn v. Helena Cab and Bus Co. (1933), 94Mont. 204, 21 P.2d 1105. 17. Both the railroad and the driver have a right to assume that the other party is exercising reasonable care and obeying the law as each approaches and passes over the crossing,but one is entitled to rely on that assumption only if that one ishimself or itself exercising ordinary

care. Neither party has a duty to anticipate negligence on thepart of the other. Tucker v. Lombardo (1956), 47 Cal.2d