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 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appeal is by the plaintiff from a judgment entered in 

the ~istrict Court, Nineteenth Judicial District, Lincoln 

County. For the reasons hereafter stated we 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 train was 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 

the placement 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 crew had stated following the incident 

that Runkle did in fact stop his vehicle. The crossing was 

protected by a stop sign and crossbucks; there were no 

electric gates or warning signals placed 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 six minor 

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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 jury which returned 

answers in its verdict on special interrogatories. The jury 

found the defendants 31% negligent, and the decedent 69% 

negligent. The court entered judgment in favor of the 

defendants and this appeal followed. 

We reverse this case principally on the grounds of 

instructional error and error in refusing certain evidence. 

In support of 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 drivers passing 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 -- THE ADMISSION OF - EVIDENCE 

Of the 19 issues raised by plaintiff on appeal, 9 

relate to refusal of 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 condition of the crossing. Evidence of prior 

accidents, while inadmissible for the purpose of proving 

negligence, is nevertheless admissible for the purpose of 

showing the existence of a danger or defect and notice 

thereof. Robinson v. F. W. Woolworth Co. (1927), 80 Mont. 

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. 70 A.L.R.2d 

"One of the principal qualifications of 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 

same or similar to those existing at the time 

of the injury for which suit is brought, 

and that the instrument or agency which caused 

the injury was 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 accidents were 

indeed not similar, the trial court was 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 

reversible error. Hermann v. Merrill Lynch, etc. (1977), 17 

Likewise, appellants sought to prove the existence of 

automatic warning signals on other crossings on the railroad 

in northwestern Montana. This evidence was offered so that 

appellants could show, by the introduction of such evidence, 

that crossings which were less dangerous and with less 

vehicular traffic count were nevertheless equipped with 

automatic warning devices, while the Troy crossing was 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, similar 
evidence was refused in the District Court and the appellate 

court upheld, stating that the "[Dletermination of relevancy, 

including similarity of 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 of which was to impeach 

witnesses for Burlington Northern who had testified that the 

crossing was not extra-hazardous. 

With respect to subsequent remedial measures, Rule 407, 

Mont.R.Evid. provides: 

"When, after an event, measures are taken which, 

if taken previously, would have made the event 

less likely to occur, evidence of the subsequent 

measures is not admissible to prove negligence 

or culpable conduct in connection with the event. 

This rule does not require the exclusion of evidence 

of subsequent measures when offered for another 

purpose, such as proving ownership, control, or 

feasibility of precautionary measures, 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 . 

, 604 P.2d 97, 102, 36 St.Rep. 2185, 2192; and Lawlor v. 

County of Flathead (1978) , - Mon t . , 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 installation of an additional portion of 

guardrail after an accident was 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 chuckhole by the county two days after the accident was 

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 crossing was not extra-hazardous. The fact that automatic signals were installed on the crossing after the 

accident would have been relevant for the purpose of impeachment as well as to show feasibility. It was prejudicial 

error to exclude this evidence. 

A further issue with respect to the admission of evidence revolves around the refusal by the District Court 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 letters were 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 connection with 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 otherwise admitted 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 as well as the 

letters because the town had not adopted an ordinance, as 

distinguished from a resolution, that would have the force 

and effect of law in imposing a speed limit on trains. 

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The record shows that as early as October 1974, the 

town council had 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 these matters. 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 limit was never enforced, nor an ordinance adopted, 

because of the threat of the railroad to take the matter to 

court if necessary. 

The documentary evidence was relevant to these issues. 

As such, "[all1 relevant evidence is admissible. . ." Rule 

402, Mont.R.Evid. The minutes of the town council which 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 subject matter of the 

crossing were likewise admissible and relevant to show 

notice of the claimed hazardous conditions, and the intent 

of the railroad with respect to the same. Of course, letters 

from the town council or town officials to persons other 

than railroad personnel (for example, to senators or 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 opponent within the meaning of Rule 801(d) (21, 

Mont.R.Evid., and the letters are within the business records 
exception to the hearsay rule, Rule 803(6), Mont.R.Evid. 

The fact that an ordinance was not passed, which would 

have a binding effect on the railroad, does not prevent the 

admission of documentary evidence which would establish the 

resolution of 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 the best evidence rule (See 29 Arn.Jur.2d 

Evidence S449, at 510.) Nonetheless, the documentary evidence 

here was superior to the testimonial evidence, particularly 

of those witnesses who would admit only that there was "some 

concern" or "some discussion" as to the hazardous conditions 

being brought to the railroads attention, and the need for a 

slowdown of the train or additional warning devices. 

DUTY OF A RAILROAD REGARDING GRADE CROSSINGS 

Before we proceed to the next issues, it is necessary 

to provide some additional details from the record. 

As may be gleaned from the foregoing discussion respecting 

the town minutes 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 crossbuck warning sign; its duty in 

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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, it was the position of the railroad, that "as a part of United States law" under the 

Federal-Aid Highway Act of 1973, railroad grade crossing 

signals are 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 not benefit from a grade crossing installation. That 

Act is an increment to 23 U.S.C. 130, a section which does 

in fact provide for a determination to be made as to the net 

benefit to a railroad in connection with railroad crossings. 

However, the 1973 Act was adopted by Congress for the purpose 

of entering upon a three year 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-system crossingstt (an off-system 

crossing was one such as Third Street which was not a part 

of the federal highway aid system). A subsequent manual 

published by the federal government indicated that no cost 

for grade crossing installations was to be recovered from 

the railroad under the 1973 Act. The impression left in 

this case by the questioning of the railroad on the effect 

of the Act required the court to give as an instruction the 

statement that the Act 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 

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of crossing signals by the railroad, as a "private corporation," 

was a misdemeanor and could be declared a public nuisance. 

That contention arose in this way: Under section 61-8-202, 

MCA, the State Highway Department was required to adopt a 

manual and specifications for a uniform system of traffic 

control devices throughout the state. The manual was prepared 

by the Department, and it is referred to as the Manual for 

Uniform Traffic Control Devices (MUTCD). Both sides were 

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 "the law 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 (the Highway 

Department) would allow it, but that there was no "responsibility 

or no right placed 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 

than merely assist the town of Troy in obtaining 

any federal funds that may have become available? 

A. In my mind they could. 

"Q. Well did they have the legal obligation under 

the MUTCD to do anything more than that? 

"MR. HOYT: Objection. This is asking this witness 

for a legal conclusion. That the MUTCD speaks for 

itself. 
"THE COURT: Overruled. 

"THE WITNESS: 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 or with the Montana State Highway Department? 

"MR. HOYT: Objection, exceeding the scope of redirect examination. 

"THE COURT: It is repetitious. Sustained. 

"Q. Mr. Morgan--and you felt this was a crossingwell-if you made the determination that this 

crossing is a hazardous one and needs signalization, 

then I would take it you would agree that it would 

be the state's responsibility to replace signals. 

"MR. HOYT: Same objection. 

"THE COURT: Overruled. 

"WITNESS: It would be the responsibility of 

the State to attempt to work with the railroad 

to get signals installed there, right." 

Thus the jury was 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 safer by installation of 

safety devices. 

It also developed in the evidence that on July 22, 

1975, employees of the State Highway Department met with 

representatives of the railroad and local authorities, and 

had then determined that the Third Street crossing was 

indeed hazardous, and that it required flashing signals and 

the installation of short-arm gates which would be actuated 

by any approaching train. The installation of these safety 

devices may 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 construct and maintain "a good 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 prudent persons in the same circumstances would operate 

or provide. 

The Federal-Aid Highway Act of 1973 represents an 

effort by the federal government 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. It does not have the force and effect of law in 

determining the duties and responsibilities of 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, it was 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 these principles in Jarvella v. Northern Pac. Ry. Co. 

(1935), 101 Mont. 102, 113, 53 P.2d 446, 450, when it said: 
"It is noteworthy, in passing, 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 status of the Manual on Uniform 

Traffic Control Devices in Williams 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 also made reference to the fact that it was 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 care may 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. It would not thereby either 

commit a misdemeanor or create a public nuisance. 

Thus it may not be enough for the railroad to protect 

its crossing with a standard crossbuck, to operate a train 

within a speed limit or to blow the whistle and ring the 

bell. The jury is still permitted to determine whether 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. 

DeElena v. Southern Pac. Co. (19791, 121 Ariz. 563, 592 

P.2d 759, 762; Seaboard Coast Line R. Co. v. Buchman (F1.App. 

FURTHER TESTIMONIAL EVIDENCE 
We turn now to the contentions respecting three items 

of testimony to which objections were sustained by the 

District Court. 

Dennis Welch 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 Bur lington Northern. The plaintiff offered prove 

that while Welch was at work following that council meeting 

he was called on the telephone by an official of the Burlington 

Northern who stated, according to Welch: 

". . . I am not sure of his exact words. I 

do recall he told me 'yes, I see here by your 

records or by the file that you worked with the 

railroad since June 4th, 1966 and you have worked 

for the railroad long enough to know better than to 

suggest reducing the speed of trains because 

of the fact that he went on to explain that 

I believe economic stability of it is costly 

and so forth. ' " 

After the conversation with this official, Welch resigned 

from the town council because, "90% of the reason" was he 

felt a conflict of interest. 

The District Court excluded this evidence. Plaintiffs 

had raised the issue of wantonness or oppressiveness as the 

basis for establishing punitive damages. Clearly, if the 

railroad in fact had utilized its position as employer to 

exert a form of 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 for punitive damages. 

Section 27-1-221, MCA. This testimony was admissible on the 

question of the railroad's negligence and on the issue of 

punitive damages. 

Plaintiff also called Bert Winslow, the Troy city 

judge, who testified that he attended a council meeting in 

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January and February of 1975 with other citizens of the town 

of Troy when Burlington Northern representatives were present 

including a man named Mr. Mitchell. Plaintiffs offered to 

prove that Winslow personally requested Mitchell to have the 

Burlington Northern slow its trains to 25 miles per hour; 

that Mitchell refused to do so and that his attitude "was 

very callous" and evidenced a total disregard for the welfare of the people of Troy. The court denied the offer of 

proof. 

The District Court was correct in denying the offer of 

proof with respect to Winslow for two reasons: Winslow was 

not acting as an official of the town of Troy at the time he 

made the request, and Mitchell's attitude may have been 

personal and not the attitude or a reflection of the position 

of the railroad with respect to the crossing. 

A third witness, whose testimony was denied, was Harry 

Wasserman, police chief of the town of Troy. If allowed to 

testify, he would have stated he 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 it passed through the crossing. The evidence was offered 

under Rule 406(b), Mont.R.Evid., on the basis of custom and 

habit, but refused by the District Court. 

We find the court to be correct in this ruling. So 

many variables enter into the proposed testimony of Wasserman 

that its probative value as to whether 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 

that might be installed in the various freight engines, the 
degree of attention with which the listener may 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 own positive testimony had indicated that 

they had performed that duty. See 59 A.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 District Court are raised as issues 

and require discussion by us. 

The plaintiff presented the testimony of Gerald R. 

Cysewski, as an expert witness on the subject of design at 

grade-railway highway crossings. Defense counsel crossexamined the expert through the use of a "Report 50" promulgated by the American Association 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 

50 was not authoritative because of errors and contradictions. 

A witness, Ken Cottingham, who appeared as an expert on 

defendants' behalf, testified that the report was used 

extensively in his work and that he personally verified its 

accuracy. 

Plaintiff objected to the use of Report 50 in crossexamination of Cysewski since it was not verified by him as 

accurate. Defendant contends that under Rule 803(18), Mont. 

R-Evid., such treatises are permissible for use in crossexamination of 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 

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not admitted by the person being cross-examined, may be 

established by the testimony of another expert, or by judicial notice. This being the case, no error occurred through 

the court permitting 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 trains were available to the railroad industry and to 

Burlington Northern in particular. In that connection, 

plaintiff endeavored to use through Flom, a treatise entitled, 

"The Visibility and Audibility of Trains Approaching Highway 

Grade Crossings", dated May 1971, and promulgated by the 

Department of 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 

intent of the plaintiff in the use of the treatise was to 

establish negligence on the part of the railroad by showing 

the kinds of lighting equipment available to railroads in 

the operation of their trains. However this was advisory 

material only and as such is inadmissible as we 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 

Products Co., 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 treatises may be admitted upon foundation that 

they (1) show what is feasible to the jury, or (2) show what 

the defendant knew or should have known about safety precautions. Charleston Nat. Bank v. International Harvester Co. 

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(1974), 22 Ill.App.3d 999, 317 N.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, 

Charleston National 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), 112 N.H. 199, 291 A.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 that we are not inconsistent in upholding 

the use of Report 50 and the denial of the Flom treatise. 

Report 50 was 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. 

The preliminary proof for its use came within the general 

rule we have set forth above. 

INSTRUCTIONAL ERROR 

We find prejudicial error in the giving of the following instructions: 

Instruction no. 24: 

". . . The court has taken judicial notice that the 

manual on Uniform Traffic Control Devices is 

the law in the State of Montana . . ." 

~nstruction no. 26: 

"You are instructed that: section 1A-3 of the 

Manual on Uniform Traffic Control Devices provides: 'The decision 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: 

"You are instructed that: The laws of this 

State provide as follows: 
"'The Department of Highways and local authorities 

may designate particularly dangerous highway-grade 

crossings of railroads and erect stop signs at 

these crossings. . . I II 

Instruction no. 35: 

". . . The responsibility for traffic control devices 

rests on a multitude of governmental jurisdictions." 

Instruction no. 36: 

". . . It is for you to determine whether the Third 

Street crossing in Troy, Montana on March 24, 

1976, was a rural or an urban crossing." 

Instruction no. 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 conduct was 

negligent as a matter of law." 

Instruction no. 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 other party. 

Instruction Nos. 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, are merely advisory, and 

until the State Highway Commission acts with respect to 

them, they do not place 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, Instruction No. 24 was incorrect as a 

statement of law, and Instruction No. 26 was useless and 
In the same way, Instruction No. 29 did not relate 

either to the duty of the railroad or to the motorist and 

should not have been given. 

Instruction No. 36 was meaningless because the jury was 

not told what different legal results would depend on whether 

the crossing was rural or urban. Instruction No. 37, on the duty 

to comply with the Manual on Uniform Traffic Control Devices, 

was improper because no formal action was taken to impose a 

duty under that Manual upon the railroad. 

Instruction No. 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 care has a right to presume that every other 

person will perform his duty and obey the law. Tucker v. 

Lombardo (1956), 47 Cal.2d 457, 303 P.2d 1041, 1047-1048. 

THE PUNITIVE DAMAGES ISSUE 

The court withdrew the issue of punitive or exemplary 

damages from the jury. Under the state of evidence in this 

case, the District Court was not in error, but such may not 

be the case in a retrial of this cause. We have already 

adverted to the minutes of the Troy town council, and the 

intercorporate memoranda, as well as the testimony of Dennis 

Welch which should have been admitted. The resulting record 

in a retrial may well present an issue of punitive damages 

for determination by the jury. Poeppel v. 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 circumstance of the Third Street crossing, 
and failed to do so, it would, of course, be acting negligently. 

Jarvella v. 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 conduct would be unjustifiable, 

which amounts to malice in law. Fauver v. Wilkoske (1949), 

123 Mont. 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; Ferguson v. Town Pump, Inc. (1978), - Mont . 

, 580 P.2d 915, 35 St.Rep. 824. 

AUDIBILITY OF -- THE WHISTLE AND -- 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 locomotive was 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 rung within a distance from between 80 rods 

(1,320 feet) 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 statutory distance, 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. 

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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. 

Shea 
Mr. ~ustice John C. Sheehy, specially concurring: 

The law in Montana 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 

suggestion only, I would submit the following instructions 

for consideration by the parties and the court. The instructions 

assume the same record as we now have before us and might not 

otherwise be applicable; moreover, I offer no guaranty that 

on a subsequent review my 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 case was 

to sound its whistle and ring its bell at a point between 80 

rods (1,320 feet) and 50 rods (825 feet) from the crossing. 

It has this duty regardless of whether any person or vehicle 

is on or approaching the crossing and regardless of the dangerous condition, if any, at the crossing. If you find from 

a preponderance of the evidence that the railroad did not 

perform this duty, such failure would be negligence as a 

matter of law. Section 69-14-562 (7), MCA. 

2. Implicit in the statutory requirement that the 

railroad sound its whistle 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 it must 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 statutory duty 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 

safety means 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 limit on such trains. None appears here. 

5. A breach of a duty imposed by statute or ordinance 

is called negligence per -- 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 statute or ordinance, when the conduct involved 

does not meet the standard of "ordinary care." Jarvella v. 

Northern Pacific Ry. Co. (1935), 101 Mont. 102, 53 P.2d 446. 

6. Every person or corporation is responsible for 

injury to the person or property of another caused by want 

of ordinary care or skill. Negligence means such want of 

ordinary care or skill. Such want of ordinary care or skill 

exists when there is a failure to do that which a reasonable 

and prudent person would ordinarily have done under the 

circumstances, or doing that which such person 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 statute or ordinance exists, or that no order by an 

authorized person 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 so would constitute negligence, although no 

ordinance or statute existed 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 bodies might 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 considering what 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 State Highway 

Department, or manuals 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 case must be determined by you on the 

basis of such ordinary care as would have been used by 

reasonable and prudent persons under the circumstances 

existing here. 

12. The driver of an automobile has 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 is plainly 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 

driver would be negligence as a matter of law. Sections 61- 

8-303 (5) , and 61-8-347, MCA. 

13. Apart from such statutory duties, the driver of a 

motor vehicle can be 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 or passing over the 

crossing. The train, if it is visible in the exercise of 

ordinary care or if its approach can be 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 

of way over its track when a motor vehicle approaches or 

crosses the railroad crossing which the train is approaching 

or passing over. If you find that the railroad was not 

negligent in the operation of its train, it has a right to 

rely on its right of way. The railroad may not rely solely 

on its right of way, however, if the train is being operated 

in violation of statutory duties or in want or ordinary 

care, and such violation or want of ordinary care is a 

proximate cause of the collision. Flynn v. Helena Cab and 

Bus Co. (1933), 94 Mont. 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 is himself or itself exercising ordinary 

care. Neither party has a duty to anticipate negligence on 

the part of the other. Tucker v. Lombardo (1956), 47 Cal.2d