No. 12251 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

STATE OF MONTANA ex re1 BURLINGTON 

Northern, Inc., a Corporation, 

Relator, 

THE DISTRICT COURT OF THE FIRST JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN AND 

FOR THE COUNTY OF LEWIS AND CLARK, THE 

HONORABLE TRUMAN BRADFORD, JUDGE PRESIDING. 

Respondents. 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Relator: 

Gough, Booth, Shanahan and Johnson, Helena, Montana. 

Ronald F. Watennan argued, Helena, Montana. 

Ward Shanahan appeared, Helena, Montana. 

For Respondents: 

Small, Cummins and Hatch, Helena, Montana. 

Robert Cumins argued, and Carl Hatch appeared, Helena, 

Montana. 

Corette, Smith and Dean, Butte, Montana. 

Keller, Reynolds and Drake, Helena, Montana. 

Submitted: April 10, 1972 

Decided : fMY I 1 r3ngA 

Filed: MAY 1 l. 1m.. ? 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an application for a writ of supervisory control 

seeking to direct the district court to enter summary judgment 

in favor of relator. On ex parte application this Court issued 

an order to show cause returnable on April 10, 1972. Return 

was made in the form of a motion to quash, a memorandum in support thereof, a brief and oral argument by counsel. 

On March 17, 1972, the district court of the first judicial 

district, the Hon. Truman G. Bradford presiding, denied relator's 

motion for summary judgment in the case of Tonya G. McCausland v. 

The City of Helena, Montana, the Montana Power Company and 

Burlington Northern Inc., Civil No. 34969. Relator then filed 

its application here. 

The suit in the district court arose from the electrocution 

death of Danny E. McCausland on May 5, 1971, near Silver City, 

Montana. McCausland was a Western Union lineman, a member of a 

crew removing Western Union telegraph lines between Helena and 

Great Falls. The lines were attached to relator Burlington 

~orthed~oles and crossarms. c el at or ' s communication lines normally carried between 6 to 48 volts, at the time of the accident. 

The electrocution occurred when a Montana Power Company 

transmission line was pulled across relator's communication lines 

in Helena, near National Avenue at a point some seventeen miles 

distant from where McCausland was working. The "pulling" of the 

transmission line across the communication lines occurred when one 

John Tomaskie, a city of Helena employee, drove a truck and lowboy 

unit hauling a D-7 caterpillar tractor with an exhaust stack 

some fourteen feet high under a Montana Power Company service line, 

breaking a power pole which in turn pulled a transmission line 

loose for two spans, dropping or pulling the lines across the 
relator's communication lines causing them to become electrified. 

The electrical power was transmitted over the communication lines 

to the area where McCausland was working. 

The Montana Power company's line was "affixed to an insulator 

held by the wooden pin, and fastened to the insulator by a separate 

wire holding the transmission line to the insulator". The transmission line was 32 feet above ground at the point of impact with 

relator's communication lines, which in turn were 24'6" above 

the ground, thus leaving 7'6" between the lines prior to the 

accident. The span between the poles supporting the transmission 

line which was pulled onto the communication lines was 155 feet. 

The transmission line carried 2400 volts to ground, 4160 phaseto-phase and impressed upon relator's communication lines 2400 

volts. 

Further east from the point of contact, a Montana Power 

Company service line attached to a building, the Bradford Machine 

Works. At its lowest point, where it connected to the building, 

the service line was 12'0" above ground; and it connected to 

the power pole at a height of 22'5". The power pole with this 

service drop, the pole broken, was the second power pole east 

of National Avenue. 

On the morning of May 5, 1971, Tomaskie, the city employee, 

went to the city shops where he picked up a truck and lowboy unit. 

He drove to the city land fill dump and loaded a D-7 tractor 

which he hauled towards National Avenue where the city was placing 

a water line. Tomaskie drove north on National Avenue, across 

relator Burlington Northern's railway tracks. This crossing 

was close to Bradford Machine Works. Tomaskie testified by 

deposition that since National Avenue was "pretty well blocked 

off" with heavy equipment, he turned east and drove on a dirt 

road which paralleled relator's tracks and ran south of Montana 

Power Company's transmission line. A motor patrol, a heavy road 
equipment vehicle, was on that road, so Tomaskie turned into an 

area between the Bradford Machine Works and Montana Power Company's 

pole, which was later broken. 

Tomaskie stated that he was then "cuttind'a comer and was 

driving near or over a footpath, running through a grassy area. 

As Tomaskie drove the truck under the service line, the fourteen 

foot high exhaust stack of the D-7 hit the line strung between 

the power pole and the building. Tomaskie did not see the line 

and continued to drive until the power pole broke. When the pole 

broke, it pulled one transmission line loose for two spans to the 

west, pulling it across relator's communication lines. The 

weather was clear, it was dry, and it was daylight. The police 

report identified the area as "private property owned by B.N. 

Railroad and Wm ~radford". 

The foregoing facts are uncontradicted and come from discovery proceedings. 

Plaintiff, as administratrix of the estate of Danny E. 

McCausland, brought action against the city of Helena, the Montana 

Power Company, and the relator, Burlington Northern, Inc., to 

recover damages for injury and death of decedent. Relator filed 

a motion to dismiss; an answer and crossclaim against the city 

of Helena; and a motion for summary judgment as against plaintiff. 

The motion for summary judgment was based upon the pleadings, depositions, answers to interrogatories and answers to requests for 

admissions. The motion was on the grounds that there was no 

genuine issue as to any material fact as to whether plaintiff 

could recover upon the theory of negligence which proximately 

caused decedent's death, against defendant and relator Burlington 

Northern, Inc. or, to state the grounds a little more clearly, 

that relator committed no act nor omitted to perform any act 

which was negligent as to decedent or that relator's acts in any 
event were not the proximate cause of the injury and death of 

decedent. 

A hearing was had by the district court. Plaintiff offered 

no new evidence nor, for that matter, any brief challenging the 

law as cited by the movant, relator here. 

Plaintiff, in her amended complaint, alleged three acts 

committed by the relator, specifically: (1) that relator's 

granting of an easement to Montana Power Company was negligent; 

(2) that permitting the Power Company to erect power supply lines 

over relator's communication lines was negligent; and (3) that 

failure to notify the Power Company of a violation of city of 

Helena Ordinance No. 4-3-19 was negligent. 

On the motion for summary judgment, relator contends that 

in each instance the record establishes as a matter of law that 

there was, in fact, no negligence committed and thus no genuine 

issue of material fact. Relator adds a further ground that, in 

any event, none of its acts were the proximate cause of decedent's 

death. Relator argues the intervening and superseding negligence 

of the city of Helena which, through its employee, drove a truck 

over a vacant field on private property with a D-7 tractor was 

the proximate cause. That the employee, charged by law with seeing 

the service wire strung between a private building and the power 

pole, nevertheless continued to drive causing the breaking and 

collapsing of the charged line across the communication line some 

two span lengths away. 

As mentioned heretofore, at the hearing on relator's motion 

plaintiff did not come forward with any new evidence nor brief. 

In Roope v. Anaconda Company, Mon t . Y 494 P.2d 

922, 29 St.Rep. 170, 174, this Court stated: 

"The burden of establishing the absence of any 

issue of material fact is on the party seeking 

summary judgment. Byrne v. Plante, 154 Mont. 6, 459 

P.2d 266, and citations therein. But where, as here, 
the record discloses no genuine issue as to any 

material fact, the burden is upon the party oposing the motion to present evidence of a material 

znd substantial nature raising a genuine issue of 

fact. Flansberg v. Mont. Power Co., 154 Mont. 53, 

mp.2d 263. and authorities cited therein." 

(Emphasis added) 

Failure of the party opposing the motion to either raise 

or demonstrate the existence of a genuine issue of material 

fact, or to demonstrate that the legal issue should not be 

determined in favor of the movant, is evidence that the party's 

burden was not carried. Summary judgment is then proper, the 

court being under no duty to anticipate proof to establish a 

material and substantial issue of fact. 

A writ of supervisory control properly issues where the 

trial court erred in refusing to grant a motion for summary 

judgment, where no genuine issue as to any material fact existed 

in the record. State ex rel. J.C. Penney Co. v. District Court, 

154 Mont. 481, 465 P.2d 824. A writ is proper in the present 

case, as it is the sole means whereby relator Burlington Northern 

can avoid the substantial prejudice of being forced to defend a 

suit where, as a matter of law, neither negligence nor proximate 

cause is established in the record. 

Plaintiff charges the railroad with three alleged acts of 

negligence, heretofore set out. Plaintiff bears the burden of 

establishing certain material elements to prevail in a negligence 

action. In Pickett v. Kyger, 151 Mont. 87, 100, 439 P.2d 57, the 

Court stated these elements to be: 

"(1) A duty owing from defendant to plaintiff; 

"(2) A breach of that duty by defendant; 

"(3) Constituting proximate cause of 

" (4) Injuries and damage to plaintiff. " 

Montana statutes adopt as governing the National Electrical 

Safety Code in all cases where no statutory provision is made for 
the construction and installation of overhead electrical power 

lines, section 24-125, R.C.M, 1947, and this is true of "construction [of lines] where wires for power, heat, light, telephone, 

telegraph or signal cross each other." 

The National Electrical Safety Code establishes minimum 

clearances for wires with a span length of not more than 250 feet 

for lines in a medium loading district. Montana is in a medium 

loading district. The span in question where the Montana Power 

Company's line crossed the Burlington Northern's communication 

line was 155 feet. The code established minimum clearances for 

crossing of wires carried on different supports. For open supply 

wires, 750 to 8700 volts, crossing a communication wire, the 

minimum clearance is 4', increased to 6' where the supply wire 

crosses a communication line within 6 feet horizontally of the 

communication pole. The Montana Power Company's supply line was 

7'6" above the Burlington Northern's communication line. 

An open supply line's minimum clearance to ground for lines 

carrying 750-15000 volts, crossing railroad tracks handling 

freight cars on top which men are permitted to work, is 28 feet. 

Over tracks not included above, the minimum is 20 feet, the same 

minimum required over public streets and driveways. Over spaces 

accessible to pedestrians only, the minimum clearance required 

is 15 feet, The Montana Power company's supply line here was 

maintained 32 feet above ground. 

The same section of the National Electrical Safety Code, 

Sec. 233A,Table 1, establishes minimums for communication lines, 

the only minimum standard which relator Burlington Northern is 

charged with meeting. The record establishes the Burlington 

Northern's communication lines were next to the Burlington 

Northern's tracks. Communication lines crossing railroad tracks, 

except where trainmen are working on top of freight cars, and on 
public streets, are required to be maintained at 18 feet. Over 

spaces accessible only to pedestrians, the minimum is 15 feet, 

over driveways, 10 feet. The record establishes the Burlington 

Northern lines were maintained at 24'6". 

I1 The city of ~elena's ordinance requires wires securely 

fastened on supports" to be maintained 4 feet above telegraph 

wires. The Montana Power Company's pole was 7'6" above the 

Burlington ~orthern's communication lines. 

The National Electrical Safety Code defines insulation as 

"separated from other conducting surfaces by a dielectric substance 

- or air space permanently offering a high resistance to the passage of current." The National Electrical Safety Code requirement 

for vertical clearances for communications lines has been set 

forth above. The Burlington Northern's comrnunication line 

exceeded the minimum distances required between lines and ground 

and the Montana Power Company's transmission line exceeded all 

minimum distances required between the supply line and the communication line. The distances were almost twice that required by the 

city of Helena's ordinance. 

But, of course, discussion of the National Electrical Safety 

Code standardsand the fact that they were not violated, ignores 

the important issue that in each instance, except as to clearance 

between the ground and the Burlington ~orthern's communication 

lines, compliance with the National Electrical Safety Code standards 

rested upon the Montana Power Company, not the Burlington Northern. 

Even assuming that a code requirement was violated, the record 

would still not contain any genuine issue of material fact which 

suggested Burlington Northern's negligence. 

Even the city of ~elena's ordinance, which plaintiff cites 

in her amended complaint, imposes no actual duty upon the Burlington 

Northern in the construction of lines above its wires. The ordinance, 
No. 4-3-20, does grant an individual in relator's class the 

right to serve notice upon a utility for violation of the ordinance. However, the right is permissive only and does not apply 

in this instance in any event, as the Montana Power Company has 

not violated the ordinance. Further, the ordinance does not give 

the relator, Burlington Northern, any right to remove public 

utility lines in violation of the ordinance, but only gives the 

owner of the communication lines the right to serve notice of 

violation of the ordinance upon the public utility. The burden 

of actually putting the service line into compliance with the 

code rests upon the Montana Power Company, not the Burlington 

Nor them. 

The record shows that the Burlington Northern violated no 

statute, code, standard, or city ordinance. Does it support any 

allegation of negligence made against relator? Before discussing 

forseeability, it is proper to determine what precise duty was 

owed decedent by the railroad. The record establishes, without 

contradiction, that decedent was working on the property of 

relator. Decedent, a Western Union employee, was engaged solely 

in Western Union work---removing its telegraphic system wires 

strung between Helena and Great Falls. 

The duty owed decedent by relator depends upon the category 

into which decedent falls with regard to his relationship with 

the railroad. The record negates any allegations that decedent 

was an employee of the railroad; likewise, it negates any allegations 

that decedent's employer, Western Union, was engaged in performing 

any actions for the railroad. Decedent and his employer were engaged solely in Western Union work. Was decedentthien a business 

invitee of relator, or merely a licensee upon railroad property? 

The distinction is important as it determines the duty owed 

McCausland. This Court said in Teesdale v. Anschutz Drilling Co., 

138 Mont. 427, 433, 357 P.2d 4: 
"In the case of Jonosky v. Northern Pac. Ry.,57 

Mont. 63, 73, 187 P. 1014, 1015, this Court stated 

the distinction between invitation and license as 

follows : 

"'* * * Much of the confusion arises from the failure 

of the courts to distinguish between a license and an 

invitation, and particularly between an implied license 

and an implied invitation. The distinction is not 

merely one of descriptive phraseology, but has its 

foundation in sound common sense. An invitation is 

inferred where there is a common Interest or mutual 

advantage, while a license is implied where the object 

is the mere pleasure, convenience, or beneiit oi the 

person enjoying the privilege.'"(Emphasis added) 

See also: Vogel v. Fetter Livestock Co., 144 Mont. 127, 137, 

138, 394 P.2d 766; Blackman v. Crowe, 149 Mont. 253, 256, 425 

P.2d 323. 

To categorize an individual as an invitee of another, the 

record must show that there was some "common interest or mutual 

advantage" gained by the property owner. Where the evidence 

establishes only that the object of the individual's presence 

was the mere pleasure, convenience or benefit of the person enjoying the privilege, that person is merely a licensee. 

The distinction is important, of course, because the duty 

owed to an invitee is different and much greater than the care 

owed to a licensee. In Vogel it was said that in an inviteeinvitor relationship: 

"* * * defendant owed plaintiff the duty of exercising 

reasonable or ordinary care, and to warn plaintiff of 

any hidden or lurking danger although defendant was not 

an insurer against all accidents and injuries to invitees. 11 

A licensee, on the other hand, is owed a lesser duty. This 

Court in Nichols v. Consolidated Dairies, 125 Mont. 460,466, 239 

P.2d 740, said: 

Plaintiff's case fails to present any evidence of the 

failure of relator to refrain from acts of wilful and wanton 

negligence. Indeed, not only does the record fail to support 
any finding of wilful and wanton misconduct on the part of 

relator, the complaint does not even make such allegation. But 

the record does support the contention that McCausland was a 

licensee, not an invitee of relator---his presence and that of 

the entire Western Union line crew on Burlington Northern property, 

was solely for the convenience and benefit of the Western Union 

Company. There are no facts from which this Court, or the district court, could have concluded that the Western Union line 

crew had some common interest with or performed some act of 

mutual advantage for the railroad. 

Having established what the duty was---what facts are there 

to support any conclusion that the duty was breached? None! 

The first alleged ground does not constitute negligence. 

Applying the appropriate standard of care to which relator must 

observe, the duty to refrain from acts of wilful and wanton 

negligence, it is clear that the grant of the easement did not 

breach any duty owed decedent. 

Considering the third ground of alleged negligence, out of 

order, relator is not charged with violation of an ordinance 

relative to the construction of transmission lines above its 

communication line. But relator is charged only with a failure 

to inform the Montana Power Company of the alleged violation. 

The record does not establish any violation of the ordinance 

and the ordinance gives relator only the right to inform the 

Montana Power Company of a violation, The statute creates no 

duty, but establishes only a permissive right to inform the 

Montana Power Company of a violation, Thus no duty to act is 

established by the statute. Failure to serve notice, even 

assuming a violation of the ordinance, was not negligence. 

Finally, plaintiff's second ground was that the Burlington 

Northern was negligent in allowing the Montana Power Company to 
cross its communication lines with power transmission lines 

without protection against electrification. The second ground, 

much like the first, must be construed in light of the statutory 

power the Montana Power Company had to utilize eminent domain 

and acquire precisely this right---the right of crossing the railroad's communication lines with its electrical transmission system. Further, the record demonstrates that the Montana Power 

Company did comply with all statutory code and ordinance minimum 

requirements. 

Accordingly, there were no genuine material facts establishing 

negligence, We need not go further into the second ground, that is, 

foreseeability and probable cause, It is clear the summary judgment should have been granted and relator, Burlington Northern, 

Inc., dismissed from the suit, It is so ordered. 

~ssoQate Justice 

i i Associate Justices,