No. 14933 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

MICHAEL WORKMAN AS THE PERSONAL 

REPRESENTATIVE OF THE ESTATE OF 

SUSAN E. WORKMAN, 

Plaintiff and Appellant, 

McINTYRE CONSTRUCTION COMPANY, S. 

BIRCH, INC., and the STATE OF MONTANA, 

and RICHARD BLIESENER, 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

Milodragovich, Dale and Dye, Missoula, Montana 

Lonnie J. Dale argued, Missoula, Montana 

For Respondents: 

Boone, Karlberg and Haddon, Missoula, Montana 

Sam Hdddon argued, Missoula, Montana 

Garlington, Lohn and Robinson, Missoula, Montana 

Gary Graham argued, Missoula, Montana 

Carolyn Clemens argued, Missoula, Montana 

Noel Larrivee, U of M Law School, Missoula, Montana 

Submitted: May 23, 1980 

Decided: 8EP 1 0 1980 

Filed: SEP 1 0 WO 
Honorable John M. McCarvel, District Judge, sitting in place of 

Mr. Justice Daniel J. Shea, delivered the Opinion of the Court. 

Plaintiff appeals from a judgment after a jury verdict in 

favor of all three defendants and a denial of his motion for a 

new trial in the District Court of the Fourth Judicial District, 

in and for the County of Missoula. 

The agreed facts are as fol lows: 

Defendants, McIntyre Construction Company and S. Birch, 

Incorporated, as joint venturers, were under contract from the 

State of Montana to widen and resurface approximately ten miles 

of U. S. Highway 93 starting three or four miles south of Arlee, 

Montana. Defendants, McIntyre Construct ion Company and S. Birch, 

Incorporated, applied one lift of asphalt paving to the surface 

of the highway, leaving a dropoff on the west side of the highway shoulder. 

On June 18, 1976, at approximately six-thirty p.m., defendant Richard Bliesener was driving south on that portion of U. S. 

Highway 93 that had been resurfaced by defendants McIntyre 

Construction Company and S. Birch, Incorporated. Plaintiff 

Michael Workman was operating a vehicle in which his wife, Susan 

Workman, and daughter, Remini sa Workman, were passengers, driving 

north on that portion of U. S. Highway 93 that was being 

resurfaced. The right wheel s of defendant Richard Bli esener's 

motor vehicle went off the right edge of the pavement lift 

and, ultimately, the Bliesener vehicle and the Workman vehicle 

collided. Susan Workman died as a result of the injuries 

sustained in the collision. 

The two causes of action consolidated for jury trial were 

by the plaintiff in his representative capacity as personal 

representative of the estate of Susan Workman, his deceased wife, 

and as next friend of Reminisa Workman, his daughter. 

The transcript of the testimony and briefs of counsel confirm the following facts: 

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1. There was only one sign observable to southbound traffic located one or two miles before the accident scene which 

read: "Road Construction, 10 miles." 

2. There was a four-inch drop off the pavement on the 

outside of the southbound lane. 

3. Defendant Bliesener's vehicle veered sharply to the 

left into the path of the Workman vehicle in the northbound traffic lane when Bliesener turned left to get his right wheel s back 

onto the pavement. 

4. There were no contentions by defendants that Michael 

Workman was in any way negligent in operating his vehicle. 

5. McIntyre Construct ion Company, S. Birch, Incorporated, 

and the State based their defense on the negligence of Bliesener 

as the proximate cause of the accident. 

6. Bliesener based his defense on the negligence of 

McIntyre Construction Company, S. Birch, Incorporated, and the 

State as the proximate cause of the accident. 

7. No speed limit signs were posted. 

8. The flow of traffic through the area was moving at 55 

miles per hour, the same speed as Bliesener's vehicle. 

9. There were no warning signs or devices of the fourinch drop off the pavement or centerline markings channel i ng 

traffic. 

10. There were no contentions that an Act of God was 

involved nor that any emergency existed, or that there was an 

involuntary violation of a statute due to circumstances beyond 

the control of the defendants. 

The following are the issues presented for review: 

1. Was the evidence insufficient as a matter of law to 

support a verdict in favor of all the defendants? 

2. Did the court err in admitting into evidence defendant 

State of Montana's exhibit 13A, a movie, which was not listed as 

an exhibit in the pretrial order? 

3. Did the court err in permitting defense counsel to 

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mention plaintiff's remarriage during voir dire of the jury? 

4. Did the court err in giving a jury instruction which 

stated that the contractor's conformance to the Department's 

instructions in carrying out work on the project was relevant to 

the determination of whether the contractor breached its duty of 

care toward the plaintiffs? 

5. Should Highway Patrolman Billedeaux have been permitted to testify as to the adequacy of the signing at the scene 

of the accident? 

6. Did the trial court err in refusing to admit into evidence the Manual on Uniform Traffic Control Devices for Streets 

and Hi ghways? 

7. Did the court err in refusing to admit evidence of the 

construction contract between the State of Montana and the 

contractors? 

8. Did the court err in refusing to admit certain 

demonstrative exhibits presented by the plaintiff? 

ISSUE NO. 1: 

-- Was the evidence insufficient -- as a matter --- of law to support - a verdict - in favor --- of all the defendants? 

This issue is not addressed in view of our holding that 

the case must be remanded for a new trial as to all three defendants because of the prejudicial admission and exclusion of evidence by the trial court as hereinafter set forth. 

ISSUE NO. 2: 

-- Did the court -- err in admitting into evidence defendant 

State - ofMontana's exhibit -- 13A, a movie, which -- was not listed - as 

- an exhibit -- in the pretrial order? 

The court erred in admitting into evidence defendant 

State's exhibit 13A, a six-minute movie film demonstrating the 

effect of driving a 1971 Ford Pinto over an abrupt edge. 

On March 6, 1979, a pretrial conference was held. Due to 

the numerous exhibits to be presented at the time of trial the 
parties agreed that they would confer on the status of various 

exhibits to be set forth in the pretrial order. Plaintiff prepared a pretrial order based upon a meeting between the various 

counsel of the parties and it was ready for signing April 9, 

1979, one week before the trial date. On that date the State for 

the first time advised plaintiff that it intended to introduce 

exhibit 13, a California Department of Transportation report on 

"The Effect of Longitudinal Edge of Paved Surface Drop-Off on 

Vehicle Stability", and on that date furnished counsel with 

copies of exhibit 13. The pretrial order had to be interdelineated to include this exhibit. State's exhibit 13 made 

reference to movies that were made of tests conducted in making 

the report. 

The first notice plaintiff had of the State's intention to 

introduce any film exhibits was when the State, in its opening 

statement, indicated that movie films would be shown to the jury. 

Exhibit 13A was not listed as an exhibit in the pretrial order. 

Immediately after the opening statement, the plaintiff 

objected to the introduction of any movies for two reasons: 

1. They were not listed as an exhibit in the pretrial 

order, and 

2. The movies were not available for pretrial examination 

to determine their relevancy or comparability to the facts and 

circumstances involved in this case. 

During argument on the plaintiff's objection, the court 

was advised that exhibit 13A was an edited six-minute summary 

film of tests demonstrating the effect of driving a 1971 Ford 

Pinto over an abrupt edge. The movies referred to in exhibit 13 

consisted of a six-hour filmed study utilizing 17,000 feet of 

film involving light, medium and heavy vehicles and a pickup 

truck, driven by professional race car drivers at different 

speeds over different edge heights. Plaintiff requested that if 

the court were going to admit exhibit 13A, that he should be 

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permitted to view all of the movie test films, since exhibit 13A 

constituted only a six-minute summary of a six-hour film test. 

The court ruled exhibit 13A admitted upon the court's requirement 

and the State's assurance that all of the movie films taken 

during the tests would be shown to the plaintiff. On Monday, 

April 23, 1979, six days after the court's ruling, the State's 

counsel showed exhibit 13A to all counsel, except counsel for 

defendant Bliesner. On April 24, 1979, counsel for the State 

advised the court that the other test film was not secured and 

therefore could not be shown to the parties. In spite of this, 

the court permitted exhibit 13A to be shown to the jury by Paul 

O'Shea, an expert called by the State, whose name had not been 

listed in the pretrial order as a witness the State intended to 

call. 

The pretrial order " . . . controls the subsequent course 

of the action, unless modified at the trial to prevent manifest 

injustice." Rule 16, M.R.Civ.P. The whole purpose of the 

pretrial conference and the pretrial order is to prevent the type 

of situation that occurred in this case. Apparently defense 

counsel for the State started to prepare its defense a week 

before trial. No justification or excuse was offered to show why 

exhibits 13 and 13A were not mentioned at the pretrial conference 

held a month before the trial. No explanation was made by counsel for the State why the entire test film was not made available 

to the plaintiff after he had assured the court a week before 

that the entire test film would be made available to the 

plaintiff. Indeed, counsel for defendant Bli esner was not shown 

State's exhibit 13A until it was shown in the judge's chambers, 

just prior to its being shown to the jury. These tactics are 

contrary to the letter and spirit of all pretrial discovery which 

is to prevent surprise, to simplify the issues, and to permit 

counsel to prepare their case for trial on the basis of the 

pretrial order. 

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The trial court abused its discretion in admitting 

defendant's exhibit 13A under these circumstances. 3 Moore's 

Federal Practice, 1116.19. Burdis v. Texas and Pacific Ry. Co., (1978), 

569 F.2d 320, 323; First National Bank of Madison v. Harrison 

(1970), 205 Kan. 315, 469 P.2d 344, 346. 

ISSUE NO. 3: 

-- Did the court -- err in permitting defense counsel - to mention 

plaintiff's remarriage during voir dire of the jury? 

Plaintiff filed a motion in limine requesting an order of 

the court prohibiting counsel from informing the jury of the 

plaintiff's remarriage. The court granted the motion, except 

permitted counsel on voir dire examination to ask jurors if they 

knew Jolene Workman without reference to plaintiff's marriage to 

her. Disregarding the court's order, counsel for the defendants, 

McIntyre-Birch, asked the entire jury panel the foll owing 

question: 

"I have just one other question to ask of you; 

it concerns personnel, people. Are any of you 

-- and this would be addressed to a1 1 of you who 

are on the current panel -- are any of you 

acquainted with Mr. Michael Workman's present 

wife? Now, her name is Jolene Workman; do any 

of you know her?" 

Evidence of a surviving spouse's remarriage is 

irrelevant. This is the holding in the great majority of courts 

deciding this question. Annot., 88 A.L.R.3d 926. Cherrigan v. 

City and County of San Francisco (1962), 262 Cal .App.Zd 643, 69 

Cal .Rptr. 42. Kimery v. Public Service Co. of Oklahoma (1977), 

562 P.2d 858. The reasons for such a rule is that damages are 

determined as of the date of death. 

Counsel for the defendants assert that the fact of 

remarriage concerned only damages and since the jury found no 

liability this is harmless error. Who can say 'that the jurors 

did not consider plaintiff's remarriage in deciding the liability 

issue, especially in this case when the jury consisted of ten 

women and two men. Similar to efforts to inject insurance 

coverage into evidence is the obvious intent here to show 
remarriage of the surviving spouse to mitigate or eliminate 

damages. 

An admonition by the court to disregard the remarriage 

will not suffice -- "the goose is a1 ready cooked." This fact 

cannot be erased from the minds of the jurors. The plaintiff, 

already overburdened with the cost of pretrial discovery and 

advance fees and transportation expenses of experts and other 

witnesses waiting to testify, cannot afford, in most cases, to 

move for a mistrial. The defendants, on the other hand, could 

care less about the plaintiff's additional expenses involved in 

the event of a mistrial. This tactic of putting the remarriage 

of the plaintiff before the jury after being ordered not to do so 

is prejudicial and reversible error. 

ISSUE NO. 4: 

-- Did the court -- err in giving - a jury instruction which 

stated -- that the contractor's conformance -- to the Department's 

instructions - in carrying ---- out work on the project was relevant - to

the determination whether the contractor breached its duty 

care toward the plaintiffs? 

The trial court gave the following instruction: 

"In determining whether the contractor breached 

any duty to the plaintiffs, you are entitled to 

consider whether it acted in accordance with 

the directions and instructions of the State of 

Montana in carrying out the work on the 

construction project. Such fol lowing of directions and instructions of the State may be considered in determining if the contractor acted 

reasonably." 

The trial court did not err in giving this instruction. 

Directions and instructions to the contractor by the State if 

followed by the contractor is one of the considerations that is 

relevant as to whether or not the contractor acted reasonably. 

This is not the same as saying that the contractor is not liable 

if he follows the directions and instructions given to him by the 

State. This fact, together with all of the other facts and 

circumstances, are to be utilized by the jury in its consideration of whether or not the contractor was negligent. The mere 
following by the contractor of directions and instructions by the 

State does not relieve the contractor of acting as a reasonable, 

prudent person under the circumstances. Bush v. Wardell (1974), 

165 Mont. 312, 528 P.2d 215. 

ISSUE NO. 5: 

Should Highway Patrolman Billedeaux -- have been permitted - to

testify --- as to the adequacy the signing - the scene 

accident? 

The fo1 1 owi ng col 1 oquy occurred at tri a1 : 

"Q. Officer Billedeaux, I would suppose that, 

having been with the Patrol for the fourteen 

years as of 1976 and having driven the fifty 

thousand miles, approxi mate1 y, per year for each 

year of that service, you would have had an 

opportunity to observe traffic-control devices 

placed on Montana roads. A. Yes. 

"Q. And I would imagine that, with that extensive experience, you would be familiar with the 

traffic-control devices placed on Montana roads? 

A. Yes. 

"Based upon that familiarity and your 

experience, do you feel that the road at the 

time and place of the collision between Mr. 

Bliesener's vehicle and Mr. Workman's vehicle 

was adequately signed? 

"MR. HADDON: Objection, Your Honor. That cal 1s 

for an opinion beyond the province of this witness as a matter of law. 

"THE COURT: 1'11 sustain the objection. 

"MR. DALE: Your Honor, the further testimony from 

Officer Billedeaux would be the in camera proceedi ngs that we discussed earli er. 

"THE COURT: Very well. 

"MR. DALE: Your Honor, for the record, we would 

like to make an offer of proof in regard to the 

testimony concerning Officer Bil ledeaux's opinion testimony as to the adequacy of the signs. 

"THE COURT: Very well. 

the 

"Q. Officer Bil ledeaux, based upon your experience 

with Montana traffic-control devices and your 

seventeen years as a member of the Montana 

Highway Patrol, fourteen years as of 1976, and 

having driven these fifty thousand miles per 

year, in your opinion, was the roadway at the 

time and place of the collision between Mr. 
Bliesner's vehicle and Mr. Workman's vehicle 

adequately signed? A. No. 

"Q. And upon what do you base that opinion? A. 

A construction area, in order to enforce the 

thirty-five mile limit, must be -- have a legend 

that indicates that thirty-five miles an hour. 

The motoring public has to be fully aware. If 

there is a hazard such as this drop-off, there 

should be something to the effect that the 

motoring public will know that there is a hazard 

there when they come down the road. 

"Q. And at the time and place on June 18, 1976, 

what was present to advise them of this hazardous condition? A. Nothing." 

The Montana Rules of Evidence provide as follows: 

"Rule 702. Testimony & Experts. 

If scientific. technical . or other s~eci a1ized 

knowledge wili assist the trier of fact to 

understand the evidence or to determine a fact 

in issue, a witness qualified as an expert by 

knowledge, skil 1, experience, training, or 

education, may testify thereto in the form of an 

opinion or otherwise." 

"Rule 704. Opinions on Ultimate Issue. 

Testimonv in the formof an o~inion or inference 

otherwis; admissible is not objectionable 

because it embraces an ultimate issue to be 

decided by the trier of fact." 

An expert witness may be qualified by professional , scientific or technical training, or have practical experience in some 

field or activity conferring upon him a special knowledge not 

shared by mankind in general, and one who has been engaged for a 

reasonable time in a particular profession, trade, or calling will 

be assumed to have the ordinary knowledge common to persons so 

engaged. Nesbitt v. City of Butte (1945), 118 Mont. 84, 163 P.2d 

The opinion of a witness on a material question of 

science, art or trade in which he is skilled is admissible in 

evidence. The determination of the qualification of a skil led or 

expert witness is a matter largely within the discretion of the 

trial judge, and in the absence of a showing of abuse, ordinarily 

will not be disturbed. Graham v. Rolandson (1967), 150 Mont. 

270, 435 P.2d 263; Nesbitt v. City of Butte, supra. 

Highway Patrol Officer Bil ledeaux was properly qua1 i fied 

as an expert, and was in possession of sufficient facts to 
warrant the conclusions he stated. Rude v. Neal (1974), 165 

Mont. 520, 530 P.2d 428. Expert opinion evidence is admissible 

in explaining the cause of a particular accident. Pachek v. 

Norton Concrete Co. (1972), 160 Mont. 16, 499 P.2d 766. The 

trial court abused its discretion in refusing to allow his 

testimony. 

ISSUE NO. 6: 

-- Did the trial court -- err in refusing - to admit into evidence 

the Manual - on Uniform Traffic Control Devices for Streets and 

Highways? 

A11 parties agree that the 1971 federal Manual on Uniform 

Traffic Control Devices for Streets and Highways (manual) 

published by the U. S. Department of Transportation had been 

adopted and was legally applicable on June 18, 1976. The manual 

sets forth certain warrants or specifications describing the physical requirements necessary to justify the authorization and use 

of the various warning signs recommended by the manual. 

Pertinent sections of the manual provide in part: 

"1A-4. In the Manual sections dealing with the 

design and application of traffic control 

devices, the words 'shall', 'should' and 'may' 

are used to describe specific conditions concerning these devices. To clarify the meanings 

intended in this Manual by the use of these 

words, the following definitions apply: 

"1. SHALL - A mandatory condition. Where certain requirements in the design or application 

of the device are described with the 'shall' 

stipulation, it is mandatory when an installation is made that these requirements be met. 

"2. SHOULD - An advisory condition. Where the 

word 'should' is used, it is considered to be 

advisable usage, recommended but not mandatory. 

"3. MAY - A permissive condition. No requirement for design or application is intended. 

"2A-1. Signs should be used only where warranted 

by facts and field studies. Signs are essential 

where speci a1 regulations apply at specific places or at specific times only, or where hazards 

are not self-evident. . . 
"2A-7. Functional ly, signs are classified as 

follows: 

"Regulatory signs give notice of traffic laws or 

regulations. 

"Warning signs call attention to conditions on, 

or adjacent to, a highway or street that are 

potential ly hazardous to traffic operations. 

"Guide signs show route designations, 

destinations, directions, distances, services, 

points of interest, and other geographical or 

cultural information. 

"2C-1. Warning signs are used when it is deemed 

necessary to warn traffic of existing or potentially hazardous conditions on or adjacent to a 

highway or street. Warning signs require 

caution on the part of the motorist and may call 

for reduction of speed or a maneuver in the 

interest of his own safety and that of other 

motorists and pedestrians. Adequate warnings 

are of great assistance to the vehicle operator 

and are valuable in safe-guarding and expediting 

traffic. . ." 

All of the parties and their counsel concede this accident 

happened on a highway under construction. The manual in Part VI, 

provides for "Traffic Controls for Street and Highway 

Construction and Maintenance Operations." Sect ion 6A-3 provides 

in part: 

". . . It is emphasized that these are minimum 

desirable standards for normal situations and 

that additional protect ion must be provided when 

special complexities and hazards prevail. The 

protection prescribed for each situation shal 1 be 

based on the speed and volume of traffic, duration of operation, and exposure to hazards. . ." 

Section 6A-4 provides: 

"The provisions for public protection 

established herein are for application by (1) 

State highway department, county, and municipal 

forces performing construction or maintenance 

operations on roads and streets, (2) contractors 

employed in road or street construction or maintenance under contract - toany governmental 

authority . . . "These standards, as part of the Manual on 

Uniform Traffic Control Devices, should be 

adopted by a1 1 public authorities concerned with 

highways, and should be given effect by official 

instructions to employees and by incorporation 

into the specifications for a1 1 contracts." 

(Emphasis added. ) 

In this case the only signs erected were length of 
construction signs located at the limits of the construction project which read: "Road Construction, 10 miles." The manual provides in Section 6B-36, in part, as follows: 

The Length of Construction sign shall be erected 

at the limits of any road construction or maintenance job of more than 2 miles in extent, 

where traffic is maintained through the job. . ." 

No "Advance Road Construction Sign" was evident as provided by 

section 6B-15 which reads in part: 

"The Advance Road (Street) Construct ion siqn 

shall be located in advance of the initial-activity or detour a driver may encounter, and is 

intended for use as a general warning of 

obstructions or restrictions. It carries the 

legend ROAD (STREET) CONSTRUCTION (1500) FT. . ." 

(Emphasis added. ) 

No regulatory signs were present as provided in Section 2B-1: 

"Regulatory signs inform highway users of traffic laws or regulations and indicate the applicability of legal requirements that would not 

otherwise be apparent. These signs shall be 

erected wherever needed to fulfil 1 this purpose, 

but unnecessary mandates should be avoided. The 

laws of many States specify that certain regulations are enforceable only when made known by 

official signs." 

"Regulatory signs normal ly shall be erected at 

those locations where regulations apply. The 

sign message shall clearly indicate the requirements imposed by the regulation and shall be 

easily visible and legible to the motorist 

concerned." (Emphasis added.) 

One of the regulatory signs is the speed limit sign. Section 

2B-13 in the manual provides in part: 

"Speed Limit signs, indicating speed limits for 

which posting is required by law, shall be 

located at the points of change from one speed 

limit to another. . ." 

"At the end of the section to which a speed 

limit applies, a Speed Limit sign showing the 

next speed limit shall be erected. . ." 

(Emphasis added.) 

Section 61-8-203(1), MCA, provides: 

"Department of highways to sign all state 

highways. (1) The department of highways shal 1 

place and maintain traffic-control devices, conforming to its manual and specifications, upon 

all stateh-ways it considers necessary to 

indicate and to carry out this chapter and 

chapter 9 or to regulate, warn, or guide 
traffic." (Emphasis added.) 

The State and the contractor, during the trial and in 

their briefs, assert that the single sign "Road Construction, 10 

miles" required a speed not in excess of 35 m.p.h. because of the 

provision of section 61-8-303(2)(b), MCA, on a highway under 

construction or repair. Yet all of the traffic was moving at 55 

On December 1, 1971, the Manual on Highway Traffic Control 

Devices was adopted by the Montana Highway Commission. The 

manual was approved by the Federal Highway Administrator as the 

National Standard for all highways open to public travel in 

accordance with Title 23, U.S. Code, Sections 109(b), 109(d) and 

In deciding the Court's opinion in Williams v. Maley 

(1967), 150 Mont. 261, 434 P.2d 398, Justice Castles, who 

likewise wrote the opinion in the Faucette case, stated: 

"In the . . . case of Faucette v. Christensen, 

145 Mont. 28, 34, 400 P.2d 883, a driver was 

charged with-negligence se-for passing 

within one hundred feet of anintersection, an 

action prohibited by statute. However, the 

intersection was marked by a broken white line, 

which under the manual indicates that in such an 

area passing is permitted. This Court asked the 

question: 

I1 I . . . Should not the other statutory "rules 

of the road" and the highway markings formally 

established by the highway commission under statutory authorization have equal dignity? Should 

not the statutes, then, be construed together 

and harmonized in determining questions of 

negligence. We be1 ieve they should.' 

" . . . It is clear from a reading of the 

legislation authorizing the Highway Commission 

to adopt a uniform manual and authorizing the 

Commission to sign the highways in accordance 

with that manual, that the mere adoption of the 

manual did not give it a status equal to that of 

a statute. R.C.M. 1947, 532-2134, authorizes 

the Highway Commission to sign the highways of 

the state in conformity with the manual 'as it 

shall deem necessary.' The same statute makes 

it unlawful for anyone else to erect signs upon 

highways. Thus, until the Highway Commission 

has acted to direct the erection of a sign, 

there is no duty placed upon anyone to act in a 

certain manner just because the Manual on 

Uniform Traffic Control Devices would seem to 
indicate that such a sign should be erected. 

Without direction by the Highway Commission 

there is no duty to place a sign." 150 Mont. 

266, 268, 434 P.2d at 401. 

In Runkle v. Burlington Northern (1980), Mont. -9 - 

P.2d , 37 St.Rep. 995, 1002, the Court said: 

"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 MU^), promulgated by the Montana 

Highway Department, may be considered - as - a - stan-

------- dard or norm to be used for traffic control 

devises. 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. 

I Northen Pac. Ry. Co. (1935), 101 Mont. 3i3, 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 ips0 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." 

(Emphasis added.) 

In this case, in addition to the provisions of the manual 

which apply to both the State and the contractor, the contract 
between the State and the contractor provides: 

"VIII. SAFETY; ACCIDENT PREVENTION 

"In the performance of this contract, the 

contractor shall comply with a1 1 applicable 

Federal, State and local laws governing safety, 

health and sanitation. The contractor shall 

provide all safeguards, safety devices and protective equipment and take any other needed 

actions, --- on his own re~~onsib-ility, or as the 

State highway department contract ing7fficer may 

determine, reasonably necessary to protect the 

life and health of employees on the job and the 

safety of the public and to protect property in 

connection with the performance of the work 

covered by the contract." (Emphasis added.) 

It is hard to conceive how a contractor could be charged 

with a misdemeanor or with creating a public nuisance with this 

provision in the contract. 

What was pronounced in Runkle applies with equal import 

here to the State and to the contractor. The trial court erred 

in refusing to admit the Manual on Uniform Traffic Control 

Devices for Streets and Highways. See Schaeffer v. Kansas Dept. 

of Transp. (Kan. 1980.), 608 P.2d 1309. 

The plaintiff offered the entire manual in evidence. When 

this case is retried, the plaintiff should be required to introduce only those portions of the manual that have relevancy to 

this case. 

ISSUE NO. 7: 

Did the court -- err in refusing admit evidence -- of the 

construction contract between the State Department -- and the 

contractors? 

Plaintiff, in cross-examining a defendant contractor's 

witness, sought to introduce certain provisions in the contract 

between the State and the contractor regarding certain traffic 

control devices mentioned in a payment schedule in the contract 

that could have been available and utilized by the contractor or 

the State at the job site. Plaintiff argues that since a payment 

schedule for these devises was included in the contract, that 

this constituted notice to the State and the contractor that 

these devices could have been utilized prior to the accident. 

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These were ye1 low and white reflectorized temporary stripi ng 

tapes. The court permitted these exhibits to be admitted for 

demonstrative purposes but refused the introduction of the provisions of the contract. 

The trial court did not err in refusing to permit the 

introduction of the contract provisions sought to be introduced 

by the plaintiff. The question is whether or not certain traffic 

control devices should have been used by the State or the 

contractor in its exercise of due care under the circumstances. 

The provision in the contract providing a payment schedule if the 

devices were used has no probative value and is irrelevant. 

ISSUE NO. 8: 

-- Did the court -- err in refusing - to admit certain demonstrative exhibits presented the plaintiff? 

Plaintiff offered in evidence an "abrupt edge sign" and a 

photograph of a stretch of highway which included the "abrupt 

edge sign" for demonstrative purposes. The tri a1 court refused 

to admit both exhibits. The exhibits were intended to illustrate 

plaintiff's expert's testimony that this traffic control "abrupt 

edge" sign is used where such a situation exists. 

Exhibits for demonstrative purposes do not depend upon 

whether or not the objects they portray could be described in 

words, but on whether or not it would be helpful to permit the 

witness to supplement his description by their use. 29 

Am Jur 2d, Evidence 9785. Exhibits are inadmissible in evidence 

for demonstrative purposes only when they do not illustrate 

or make clearer some issue in the case--that is, where they are 

irrelevant or immaterial--or where they are of such a character 

as to prejudice the jury. 29 Am Jur 2d, Evidence 9785. These 

exhibits were relevant and would not prejudice the jury. To 

refuse to admit plaintiff's exhibits for demonstrative purpose 

was an abuse of discretion by the trial court. Brown v. North 

- 17 - 
Am. Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711, 35 St. Rptr. 

194. 

For the foregoing reasons, the judgment is reversed as to 

all three defendants and the cause remanded for a new trial. 

Hon. John M. McCarvel , District 

Judge, sitting in place of Mr. 

Justice Daniel J. Shea. 

We concur: 

Chief mtice (\