No. 12251 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

STATE OF MONTANA ex re1BURLINGTON Northern, Inc., a Corporation, Relator,

THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND 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: 

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Filed: 

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?Mr. JusticeWesley 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 onApril 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., CivilNo. 34969. Relator then filed its applicationhere. The suit in the district court arose from the electrocution death of Danny 

### E. McCausland onMay 

### 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 lineswere attached to relator Burlington ~orthed~oles and crossarms. 

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## 's communication lines normally carried between 6 to 48volts, at the time of the accident. The electrocution occurredwhen a Montana Power Company transmission linewas pulled across relator's communication lines inHelena, near National Avenue at a point some seventeenmiles distant fromwhere McCauslandwas working. The "pulling" of the transmission line across the communication lines occurredwhen one John Tomaskie, a city of Helena employee,drove a truck and lowboy unit hauling a D-7caterpillar tractorwith 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 therelator's communication lines causing them to become electrified. The electricalpower was transmitted over the communication lines to the area where McCausland was working. The Montana Power company's linewas "affixed to an insulator held by the wooden pin, and fastened to the insulatorby 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 turnwere 24'6" above the ground, thus leaving 7'6" between the lines prior to the accident. The span between the poles supporting the transmission linewhich was pulled onto the communication lines was 155 feet. The transmission line carried 2400 volts to ground, 4160phaseto-phaseand 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 linewas 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 lowboyunit. 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 sinceNationalAvenue was "prettywell 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 roadequipmentvehicle,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 comerand was drivingnear 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-7hit the line strungbetween 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 weatherwas 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 fromdiscoveryproceedings. 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 anddeath of decedent. Relator filed



### amotion to dismiss;an answer and crossclaim against the city of Helena; and a motion for summary judgment as against plaintiff. The motion for summary judgmentwas based upon the pleadings, depositions,answers to interrogatories and answers to requests for admissions. The motionwas on the grounds that there was no genuine issue as to any material fact as towhether plaintiff could recover upon the theory of negligencewhich proximately caused decedent's death, against defendant and relator Burlington Northern, Inc. or, to state the grounds a littlemore clearly, that relator committedno act nor omitted to perform any act whichwas negligent as to decedent or that relator's acts in anyevent were not the proximate cause of the injury and death of decedent. A hearingwas had by the district court. Plaintiff offered

no new evidence nor, for that matter, any brief challenging the law as cited by themovant, relatorhere. Plaintiff, in her amended complaint,alleged three acts committedby the relator, specifically: (1) that relator's granting of an easement to Montana Power Companywas negligent;

(2) that permitting the Power Company to erect power supply lines over relator's communication lineswas negligent; and (3) that failure to notify the Power Company of a violation of city of Helena Ordinance No. 4-3-19was 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,nonegligence 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 interveningand superseding negligence of the city of Helenawhich, through its employee, drove a truck

over a vacant field on private propertywith a 

### D-7 tractorwas the proximate cause. That the employee, charged by lawwith 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 forwardwith any new evidence nor brief. InRoope v. Anaconda Company, Mont

# . Y 494 P.2d 922, 29 St.Rep. 170, 174, this Court stated: "The burden of establishing the absence of any issue ofmaterial fact is on the party seeking summary judgment. Byrne v. Plante, 154Mont. 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 amaterial znd substantialnature raising a genuine issue of fact. Flansbergv. Mont. Power Co., 154Mont. 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 shouldnot be determined in favor of the movant, is evidence that the party's burdenwas 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 supervisorycontrolproperly issueswhere the trial court erred in refusing to grant a motion for summary judgment,where no genuine issue as to anymaterial fact existed in the record. State ex rel. J.C. Penney Co. v. District Court, 154Mont. 481,465 P.2d 824. 

### Awrit is proper in the present case, as it is the solemeans whereby relator Burlington Northern

can avoid the substantial prejudice of being forced to defend a suit where, as a matter of law,neither negligencenor proximate

cause is established in the record. Plaintiff charges the railroadwith three alleged acts of negligence,heretofore set out. Plaintiff bears the burden of establishing certainmaterial elements to prevail in a negligence action. In Pickettv. Kyger, 151Mont. 87, 100,439 P.2d 57, the Court stated these elements to be: "(1) 

### A duty owing fromdefendant to plaintiff; "(2) 

### A breach of that duty by defendant; "(3) Constitutingproximate 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 ismade forthe 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 forwires with a span length of not more than 250 feet for lines in amedium loading district. Montana is in a medium loading district. The span in questionwhere the Montana Power Company's line crossed the Burlington Northern's communication linewas 155 feet. The code established minimum clearances for crossing of wires carried on different supports. For open supply wires, 750 to 8700volts, crossing a communicationwire, the minimum clearance is 4', increased to 

### 6' where the supplywire

crosses a communication linewithin 6 feet horizontally of the communication pole. The Montana Power Company's supply linewas 7'6" above the BurlingtonNorthern's communication line. An open supply line's minimum clearance to ground for lines carrying 750-15000volts, 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 standardwhich relator Burlington Northern is charged with meeting. The record establishes the Burlington Northern's communication lineswere next to the Burlington Northern's tracks. Communication lines crossing railroad tracks, except where trainmen areworking on top of freight cars, and onpublic 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 lineswere maintained at 24'6".

I1 The city of ~elena'sordinance requireswires 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 surfacesby a dielectric substance

or air space permanently offering a high resistance to the pas

## - sage of current." The National Electrical Safety Code requirement forvertical clearances for communications lineshas been set forth above. The BurlingtonNorthern'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 distanceswere 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 theywere not violated, ignores the important issue that in each instance, except as to clearance between the ground and the Burlington ~orthern'scommunication lines, compliancewith the National Electrical Safety Code standards rested upon the Montana Power Company, not the BurlingtonNorthern. Even assuming that a code requirementwas violated, the record would still not contain any genuine issue ofmaterial factwhich suggested BurlingtonNorthern's negligence. Even the city of ~elena'sordinance, which plaintiff cites inher amended complaint, imposesno actual duty upon the Burlington Northern in the construction of lines above itswires. The ordinance,No. 4-3-20,does grant an individual in relator's class the right to servenotice upon a utility forviolation 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 removepublic utility lines inviolation 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 actuallyputting the service line into compliancewith the code rests upon the Montana Power Company, not the Burlington Northem. 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 dutywas 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 inWestern Unionwork---removingits telegraphic systemwires strungbetween Helena and Great Falls. The duty owed decedent by relator depends upon the category into which decedent fallswith 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 inWestern Unionwork. Was decedentthien a business invitee of relator, or merely a licenseeupon railroad property? The distinction is important as it determines the duty owed McCausland. This Court said in Teesdale v. Anschutz Drilling Co., 138Mont. 427, 433, 357 P.2d 

### 4:"In the case of Jonoskyv. Northern Pac. Ry.,57 Mont. 63, 73, 187 

### P. 1014, 1015, this Court stated the distinctionbetween invitationand license as follows: 

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# *Much of the confusionarises 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 impliedwhere the object is the mere pleasure, convenience,or beneiit oi the person enjoying the privilege.'"(Emphasis added) See also: Vogel v. Fetter Livestock Co., 144Mont. 127, 137, 138, 394 P.2d 766;Blackman v. Crowe, 149Mont. 253, 256, 425 P.2d 323. To categorize an individual as an invitee of another, the record must show that therewas 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 ismerely 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. InVogel it was said that in an inviteeinvitor relationship: 

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# * 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 otherhand, is owed a lesser duty. This Court inNichols 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 fromacts ofwilful and wanton negligence. Indeed,not only does the record fail to supportany finding ofwilful and wantonmisconduct on the part of relator, the complaint does not evenmake such allegation. But the record does support the contention that McCausland was a licensee, not an invitee of relator---hispresence and that of the entire Western Union line crew on BurlingtonNorthern property,

was solely for the convenience and benefit of the Western Union Company. There are no facts fromwhich this Court, or the district court,could have concluded that the Western Union line

crewhad some common interestwith or performed some act of mutual advantage for the railroad. Having established what the dutywas---whatfacts are there to support any conclusion that the dutywas breached? None! The first alleged ground does not constitute negligence. Applying the appropriate standard of care towhich relator must observe, the duty to refrain fromacts 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 chargedwith violation of an ordinance relative to the construction of transmission lines above its communication line. But relator is charged onlywith 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 createsno 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 Northernwas negligent in allowing the Montana Power Company tocross 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 Companyhad to utilize eminent domain and acquire precisely this right---theright of crossing the railroad's communication lines with its electrical transmission system. Further, the record demonstrates that the Montana Power Company did complywith all statutory code and ordinance minimum requirements. Accordingly, therewere no genuinematerial facts establishing negligence, 

### We need not go further into the second ground, that is, foreseeabilityand probable cause, It is clear the summary judgment shouldhave been granted and relator, BurlingtonNorthern, Inc., dismissed from the suit, It is so ordered.

~ssoQate Justice



# ii Associate Justices,