No. 14792 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

KEITH REYNOLDS, 

Plaintiff and Appellant, 

BURLINGTON NORTHERN, INC., 

a corporation, 

Defendants and Respondents. 

Appeal from: District Court of the Eleventh Judicial District, 

In and For the County of Lincoln, 

Honorable Robert Holter, Judge presiding. 

Counsel of Record: 

For Appellant: 

Murphy, Robinson, Heckathorn and Phillips, Kalispell, 

Montana 

I. James Heckathorn argued, Kalispell, Montana 

For Respondents: 

Kroschel, Peterson and Koolen, Billings, Montana 

K. Kent Koolen argued, Billings, Montana 

Submitted: March 27, 1980 

Decided: DEC 9 - '@@ 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Plaintiff, Keith Reynolds, while employed by Ksanka 

Lumber Company, was severely injured when a string of 

Bur lington Northern railroad cars suddenly moved down a 

siding and struck a cable over which he was straddled. He 

sued Burlington Northern for damages, and appeals from an 

order of the Lincoln County District Court directing a 

verdict in favor of the railroad. 

The pleadings are imprecise and confusing, but it 

appears that plaintiff sued the railroad on two theories: 

First, that he was a business invitee in his relationship 

with the railroad and that as such, the railroad owed him 

the duty to provide a safe place to work. Second, that the 

railroad violated the Federal Safety Appliance Act, and that 

he was a member of the protected class under the Act. 

It is not entirely clear what the railroad's defenses 

were. It appears, however, that the railroad conceded that 

plaintiff was a business invitee, but denied that the 

railroad owed him as such, the duty to provide him with a 

safe place to work. It appears that the railroad had a twopronged defense in relation to the Safety Appliance Act. 

First, the railroad contended that because plaintiff was not 

on the main line of the railroad and because the facilities 

were leased to the Ksanka Lumber Company, plaintiff was not 

entitled to protection under the Act. Second, assuming 

application of the Act to this case, the railroad alleged 

that it was entitled to assert the defenses of assumption of 

risk and contributory negligence, and pleaded both defenses 

as affirmative defenses. 

We first set forth the facts of the accident before 
again venturing into the procedural entanglement at the end 

of trial which led to this appeal. 

Plaintiff, at the time of his injuries, was a 45-year 

old employee of Ksanka Lumber Company, who worked at a 

woodchip-loading facility at Fortine, Montana, on land 

leased by Ksanka Lumber Company from the defendant railroad. 

(We note, parenthetically, and will have more to say of this 

later, that Ksanka Lumber Company is a wholly-owned 

subsidiary of Plum Creek Lumber Company, and that Plum Creek 

Lumber Company is in turn, a wholly-owned subsidiary of the 

defendant railroad.) On October 3, 1974, at approximately 

8:00 a.m., railroad employees placed a string of five empty 

cars against a sixth car already placed on a side track 

adjacent to Ksanka's woodchip-loading facility. None of the 

brakes on the five cars were set. 

When plaintiff came to work at 4:00 p.m., the first of 

the six cars had already been spotted at the loading chute. 

This car was approximately 150 feet from the remaining empty 

railroad cars. Plaintiff finished filling the partiallyloaded car with chips about 8:30 p.m. and rode it down the 

incline to a spot where it would be rerouted by the 

railroad. He then walked up the incline to the remaining 

string of empty cars. He testified that he climbed the 

ladder on the second car in the string and tightened and 

secured its brakes before uncoupling the lead car. Upon 

uncoupling the lead car, he rode it down to the loading area 

to load it with woodchips. 

To facilitate even loading of woodchips, an electric car 

puller is provided for the loading operation. This puller 

moves a car up and down the track to allow woodchips leaving 

the chute to fill the car evenly. After stopping the lead 

car at the chip loader, the plaintiff attached the car 
puller cable to the end of the car. While doing so, he 

straddled the car puller cable and turned his back to the 

string of cars which were further down the track. The 

string of empty cars suddenly began rolling and struck the 

cable over which he was straddled. The collision propelled 

plaintiff into the air and his leg was badly broken. 

Plaintiff's leg remained in a cast for two and a half 

years and during this time, surgery was performed several 

times. He returned to work in April 1977, but immediately 

experienced additional problems with the foot on his injured 

leg. His physical.problems prevented him from continuing to 

work at his old job and from performing any duties which 

required movement of his leg or foot. Plaintiff sued the 

railroad in December 1975. 

The procedural problems in relation to the substantive 

basis for recovery, had their beginning in the pleadings and 

carried over into the pretrial order. In his complaint, as 

a separate allegation of negligence, plaintiff alleged that 

defendant owed him the duty of providing him with a safe 

place to work. He also enumerated several specifications of 

negligence whereby the railroad had caused his injuries. 

The complaint contained no allegation that plaintiff was a 

business invitee of the defendant railroad. Without 

specifying how the Safety Appliance Act applied to him, 

plaintiff also alleged that the railroad had violated the 

Act and was thus responsible for his injuries. 

We cannot tell from the District Court file whether the 

trial court held a pretrial conference, although there is a 

pretrial order signed by the trial court and approved by 

counsel for both sides. The imprecise pleadings were 

carried over into the pretrial order. The order, signed so 

as to supplement the pleadings (see Rule 16, M.R.Civ.P.) set 
forth the issues of fact and law as follows: 

1. Was the defendant negligent in which negligence was 

the proximate cause of plaintiff's injury? 

2. Was the plaintiff contributorily negligent? 

3. Did plaintiff assume the risk of injury? 

4. Did defendant violate the Safety Appliance Act? 

5. The extent and amount of plaintiff's injury and 

damage. 

Neither the District Court file nor the trial 

transcript, reveals any significant rulings or discussions 

on questions of law. Rather, it appears that no rulings 

were made until the end of the trial when the court and 

counsel were settling jury instructions. 

Plaintiff offered several instructions relating to his 

negligence theory of liability. Several contained language 

that the plaintiff was a business invitee of the defendant 

railroad and that as such the railroad owed plaintiff a duty 

to provide him with a safe place to work. The railroad's 

position on the business invitee status of plaintiff is not 

entirely clear, but there is no doubt that the railroad 

asserted that it did not owe a duty to provide him with a 

safe place to work. The railroad argues that such duty 

applies only to an employer-who must provide its employees 

with a safe place to work--and that plaintiff was not an 

employee of the railroad. All of plaintiff's offered 

instructions were laced with language stating that the 

railroad owed him a duty to provide a safe place to work. 

We cannot determine the precise rulings of the trial 

court on the questions of law presented by these offered 

instructions. For example, the record does not disclose 

whether the trial court ruled only that the railroad did not 

owe plaintiff a duty to provide him with a safe place to 
work, or whether it also ruled that plaintiff was not a 

business invitee. Neither plaintiff's counsel nor defense 

counsel made any effort to obtain a definitive ruling. The 

consequence is that the trial court refused almost all of 

the plaintiff's offered instructions on his negligence 

theory of liability. Because he was effectively left 

without any instructions supporting his negligence theory of 

liability, plaintiff's counsel told the trial court that it 

might as well direct a verdict in favor of the railroad. 

The defendant railroad also renewed its motion for a 

directed verdict. The trial court, accordingly, directed a 

verdict against plaintiff on the negligence theory. 

Similar problems cropped up with relation to plaintiff's 

theory of recovery under the Safety Appliance Act. The 

record is equally clouded. The parties did not request the 

trial court to enter any preliminary rulings as to whether 

the Act applied in this case, and if applicable, the nature 

and extent of its application. Thus, the problems first 

arose during settlement of jury instructions relating to the 

Act. Plaintiff offered several instructions relating to his 

interpretation of the Act as applied to this case, and the 

trial court refused most of them. Unfortunately, the record 

does not tell us the particulars of why the trial court 

considered the instructions to be in error or inapplicable. 

Plaintiff offered an instruction defining causation 

under the Act, but which used the language contained in the 

Federal Employers' Liability Act (5 51 thru 60; in 

particular, see 5 51.) Another paragraph of the same 

instruction stated that contributory negligence was not a 

defense to an action under the Safety Appliance Act. 

Although the trial court refused this instruction, we cannot 

determine whether he ruled that both paragraphs were in 
error, or whether the causation language or contributory 

negligence statement was in error. The plaintiff made no 

effort to obtain a clarifying ruling to determine precisely 

what was wrong with his offered instruction. The record is 

further confused by the fact that the defendant railroad 

offered an instruction under the Act containing language 

that contributory negligence was a defense, and plaintiff's 

counsel did not object. It makes little sense for plaintiff 

to offer an instruction stating that contributory negligence 

is not a defense and then to fail to object to the 

defendant's offered instruction stating that contributory 

negligence is a defense, to an action under the Act. (We 

note here that the railroad asserts that it did not offer an 

instruction containing assumption or risk as a defense 

because it was satisfied that the evidence rendered this 

defense inapplicable.) 

Because the trial court refused most of plaintiff's 

offered instructions defining and applying the Safety 

Appliance Act, plaintiff asserted that he could not argue a 

violation of the Act to the jury, and therefore requested 

that the trial court also enter a directed verdict on this 

theory of liability. Defense counsel agreed, and a directed 

verdict was accordingly entered. 

Plaintiff's counsel later moved for a new trial and 

alleged on several grounds, that the trial court had 

improperly construed and applied the law. We cannot 

determine if briefs were supplied the court in support of 

this motion. In any event, it appears that the motion was 

orally argued, and that within a few days the trial court 

directed the clerk to enter a minute entry stating that the 

motion for a new trial was denied. Reasons for denial were 

not stated. Plaintiff's appeal followed. 
Plaintiff states the issues as follows: (1) Was 

Reynolds a business invitee on premises of Burlington 

Northern? (2) Did Burlington Northern owe Reynolds a duty 

of providing him with a safe place to work? (3) Does the 

Federal Safety Appliance Act apply to Reynolds? (4) Is 

contributory negligence a defense under the Act? (5) Did 

the Court err in directing its verdict against Reynolds? 

The railroad, on the other hand, states the issues in 

the following language: ( 1) Was the plaintiff improperly 

precluded from submitting the issue of "premises liability" 

to the jury? (2) Was the plaintiff improperly precluded 

from submitting the issue of Safety Appliance Act liability 

to the jury? (3) Did the Court commit reversible error by 

directing a verdict against the plaintiff? 

It is clear that the parties cannot agree on the issues 

and that the trial record does not demonstrate a 

well-prepared and well-presented case by counsel for either 

side. Although we cannot say that this case would not 

ultimately have been appealed had it gone to the jury, we 

have no doubt that it would be here in a different 

procedural context if counsel for both sides had paid closer 

attention to the law and to drafting their proposed jury 

instructions. We note also that the trial court should not 

be faulted by the plaintiff for directing a verdict when it 

was the plaintiff who requested the trial court to do so. 

On the other hand, had the trial court been more careful in 

its rulings with relation to the proposed instructions, and 

had the parties insisted on careful rulings, we would be in 

a better position to handle the substantive issues without 

first sorting out the procedural problems which led to the 

results at the trial court level. 

Because of the nature of the rulings affecting 
plaintiff's offered instructions as to his negligence theory 

of liability, we cannot tell why the trial court effectively 

took the negligence theory away from the jury. Nor can we 

determine the trial court's rulings in relation to the 

application and scope of the Safety Appliance Act. 

Nonetheless, we determine that we must decide whether, under 

the facts of this case, the defendant railroad had the duty 

to provide plaintiff with a safe place to work. Although it 

appears that the railroad concedes the right of the 

plaintiff to sue under the Safety Appliance Act, we must 

also determine whether the railroad has available to it the 

defenses of assumption of risk and contributory negligence. 

We discuss first the application and scope of the Safety 

Appliance Act. 

APPLICATION OF THE FEDERAL SAFETY APPLIANCE ACT: Procedural 

Backqround 

In that portion of the pretrial order setting forth 

plaintiff's contentions, plaintiff simply alleged that 

"defendant violated the Safety Appliance Act (45 U.S.C. S 1- 

16) in providing a car with a defective handbrake." 

Defendant, on the other hand, had several contentions in the 

pretrial order pertaining to its defense of the case. It 

alleged first that the cars were not in use on defendant's 

line at the time of the accident. Second, it alleged that 

plaintiff's injuries were not caused by a defective 

handbrake or, by a failure of a handbrake to perform 

properly and efficiently on the occasion in question when 

used in a normal, ordinary and proper operation. Third, it 

argued that plaintiff's injuries were caused by his 

negligence in failing to properly set a handbrake or by 

improperly setting the handbrakes on the remaining cars. 

Fourth, it alleged that plaintiff had assumed the risk of 
his injuries (although this contention was withdrawn at the 

time jury instructions were settled.) Fifth, the railroad 

asserted that there is no evidence that any of the 

handbrakes on any of the cars were defective. 

Initially, we note that the defendant did not assert 

during settlement of jury instructions, nor does it assert 

here, that the Safety Appliance Act is inapplicable because 

the railroad cars were not in use on defendant's line at the 

time plaintiff sustained his injuries. We assume, 

therefore, that defendant has abandoned this contention. 

Furthermore, in Jenkins v. Chicago & Southeastern Illinois 

Railroad (1972), 5 Ill.App.3d 954, 284 N.E.2d 392, a case 

remarkably similar to the facts here, the Court ruled that 

the cars, although on a siding, that was leased to the 

plaintiff's employer, were in operation on defendant's 

railroad line. We hold also, that defendant cannot defeat 

application of the Act because the cars were on a siding, 

even though the carloading operations on the siding were 

handled by Ksanka Lumber Company. 

THE FEDERAL SAFETY APPLIANCE ACT: Substantive Application 

Plaintiff's offered instructions applying the Safety 

Appliance Act, stated that proof of a violation of the Act, 

together with a causal relationship between the violation 

and the injuries sustained, is sufficient to impose 

liability on the railroad. They further provided that the 

defenses of contributory negligence and assumption of risk 

were not available to the railroad. The definition of 

causation was that which is provided for in the Federal 

Employers' Liability Act--and we shall have more to say of 

this later. The railroad also offered several instructions 

defining the Act, but provided that contributory negligence 

is a defense even if a violation of the Act is proved. (As 
we previously stated, the railroad eliminated its assumption 

of risk defense from its offered instructions because it 

believed that as a matter of evidence, the defense was 

inapplicable . ) 

The trial court refused plaintiff's offered instructions 

and approved the defendant's instructions. Contributory 

negligence was thus a defense under the Act. Only two other 

instructions had direct application to the Act. The first 

(and a proper instruction) defined inefficient brake and 

defective brake; and the second (which also was proper) 

defined the terms inefficient and ineffective, but further 

stated that the terms were not synonymous. 

The trial court approved several more of defendant's 

offered instructions that apply to plaintiff's theories of 

recovery; but the instructions do not specify that they are 

intended to apply either to the negligence theory of 

recovery, or to the Safety Appliance Act theory of recovery, 

or to both. The danger, of course, is that the jury, 

without being properly instructed, could improperly apply 

the instructions without the necessary designation. 

One of the instructions defined reasonable care, which 

could apply only to plaintiff's common law negligence 

action. A second defined the term negligence, which again 

could only be applied to plaintiff's negligence theory. A 

third instruction defined the term contributory negligence, 

but did not attempt to state whether it applied to either or 

both of plaintiff's theories of recovery. A fourth 

instruction also defined contributory negligence, and is 

similarly defective for a failure to designate which theory 

it applied to. A fifth instruction defined the term 

proximate cause, and although properly applicable to both 

theories of recovery, failed to contain language telling the 
jury that the definition did apply to both theories. We are 

thus left with a series of instructions that are woefully 

inadequate, even assuming that the trial court had properly 

ruled on the application and scope of the Safety Appliance 

Act. If the case had gone to the jury, and the plaintiff 

received an adverse jury verdict, we would be compelled to 

reverse for the reason that the jury was improperly 

instructed. 

We next proceed to a discussion of the substantive 

provisions of the Federal Safety Appliance Act as they apply 

to this case. 

We have no doubt that the plaintiff is a member of the 

class which can invoke the provisions of the Federal Safety 

Appliance Act, 45 U.S.C. 55 1 thru 46. Section 11 provides 

in part: 

"It shall be unlawful for any common carrier . . . to haul, or permit to be hauled or used 

on its line, any car . . . not equipped with . . . efficient hand brakes . . ." 

Section 13 of the Act provides for criminal penalties for 

any violation. 

Although the Act itself does not create a cause of 

action in favor of anyone, it has been given effect through 

civil suits under the Federal Employers' Liability Act (45 

U.S.C. 5s 51 thru 60) in the case of railroad employees, and 

by suits in state courts invoking state law for nonrailroad 

employees. In Coray v. Southern Pac. Co. (1949), 335 U.S. 

520, 522-523, 69 S.Ct. 275, 276, 93 L.Ed.2d 208, 210, the 

United States Supreme Court long ago stated: 

". . . this Act, fairly interpreted, must be 

held to protect all who need protection from 

dangerous results due to maintenance or 

operation of congressionally prohibited 

defective appliances." 

In Boyer v. Atchison, Topeka and Santa Fe Railway Co. 

(1967), 38 111.2d 31, 230 N.E.2d 173, the Illinois Supreme 
Court held that a railroad passenger could invoke the 

protection of the Act, and furthermore, that the defense of 

assumption of risk was not available to the railroad. In 

Jenkins, supra, following the lead set forth in Boyer, 

the Illinois Appellate Court declared that a nonrailroad 

employee working on the railroad's siding, could invoke the 

protection of the Act, and furthermore, that the defense of 

contributory negligence was not available to the railroad. 

It is thus clear to us that the plaintiff here can invoke 

the protection of the Act; and it is equally clear that the 

railroad cannot assert the defenses of assumption of risk 

and contributory negligence. 

Because it is a federal Act, federal court decisions 

necessarily define the substantive provisions. The U.S. 

Supreme Court has declared that the Act imposes absolute 

liability that is not in any way dependent on the law of 

negligence. In O'Donnell v. Elgin J. & E. Ry. Co. (1949), 

338 U.S. 384, 390, 70 S.Ct. 200, 204, 94 L.Ed. 187, the 

Court stated: 

". . . this Court early swept all issues of 

negligence out of cases under the Safety 

Appliance Act. For reasons set forth at 

length in our books, the Court held that a 

failure of equipment to perform as0 required 

by the Safety Appliance Act is in itself an 

actionable wrong, in no way dependent upon 

negligence and for the proximate results of 

which there is liability--a liability that 

cannot be escaped by proof of care or 

diligence. (Citing cases.)" 

For reasons that are not entirely clear, however, the 

U.S. Supreme Court has also declared that whether the 

railroad can assert contributory negligence or assumption of 

risk as defenses in a case involving a nonrailroad employee, 

depends entirely on state law rather than federal law. 

The most recent case adhering to this interpretation is 

Crane v. Cedar Rapids & Iowa Railway Co. (1969), 395 U.S. 
164, 89 S.Ct. 1706, 23 L.Ed.2d 176. In Crane, the Court 

upheld an Iowa Supreme Court decision holding that one who 

brings suit under the Safety Appliance Act must prove (under 

Iowa law) that he was free from contributory negligence. In 

declaring, however, that a nonemployee could not invoke the 

same protections under the Federal Employers' Liability Act 

to which a railroad employee is entitled, the majority 

stated: 

"We recognize the injustice of denying 

recovery to a nonemployee which would not be 

denied to an employee performing the same task 

in the same manner as did petitioner. But it 

is for Congress to amend the statute to 

prevent such injustice. It is not permitted 

the Court to rewrite the statute." 395 U.S. 

at 167. 

Justice Black, joined by Chief Justice Warren and Justice 

Douglas, dissented, arguing that a nonemployee under the 

Safety Appliance Act should have the same protections as 

those given a railroad employee who invokes the Act as a 

basis of predicating civil liability. 

Because the Safety Appliance Act creates absolute 

liability not dependent upon the law of negligence, we must 

decide this issue on the basis of whether we permit the 

defenses of assumption of risk and contributory negligence 

where suit is brought under a state statute that imposes 

absolute liability. In Pollard v. Todd (1966), 148 Mont. 

171, 418 P.2d 869, a case brought under the Montana 

Scaffolding Act, we ruled that liability is established 

where it is proved that a statute has been violated and 

there is a proximate cause connection between the violation 

and the resulting injuries. We ruled, furthermore, that in 

such a case, the defenses of assumption of risk and 

contributory negligence are not available to one who has 

responsibility under the Scaffolding Act. We would be 

inconsistent in interpreting absolute liability statutes if 
we were to permit the railroad to invoke the defenses of 

assumption of risk and contributory negligence under the 

Safety Appliance Act but to disallow the defenses under the 

Montana Scaffolding Act. In either case, the principle is 

the same, and the principle should be consistently applied. 

We are not alone in holding that the defenses of 

assumption of risk and contributory negligence are not 

available to the railroad where sued by a plaintiff who 

invokes the provisions of the Safety Appliance Act. In 

Boyer, supra, the Illinois Supreme Court determined that the 

actionable wrong under the Act is the failure of the 

equipment to perform as required under the Act, and that 

once the violation is proved, the plaintiff need only prove 

the causal relationship between the violation and the 

injuries sustained. In ruling that the defense of 

assumption of risk was not available under Illinois law, the 

court stated: 

"Under such a policy which imposes an absolute 

duty to provide for public safety it would be 

incongruous to allow the doctrine of 

assumption of risk to be employed by the 

defendant to avoid the responsibility to one 

for whose benefit the statute was enacted." 

230 N.E.2d at 178. 

Not to be denied, two years later, a defendant railroad 

asserted the defense of contributory negligence in a suit 

brought by a nonrailroad employee pursuant to the Safety 

Appliance Act. The Illinois Appellate Court, following the 

lead in Boyer, held that contributory negligence is not a 

defense to a suit brought pursuant to the Act. Jenkins, 

supra. The Court stated: 

"Because the action is one to enforce an 

absolute liability, the applicable state law 

is that which deals with those types of 

actions. It is elementary that contributory 

negligence, a concept of the law of 

negligence, is not an applicable defense 

against one seeking to enforce an absolute 

liability." 284 N.E.2d at 400. 
The court in Jenkins also laid to rest any assumption 

that the defenses would be available to the railroad where 

sued by a nonrailroad employee: 

"Implicit in the defendant's argument is the 

contention that the fact that plaintiff is a 

nonemployee of the defendant railroad changes 

his status with respect to the available 

defenses. Defendant has not suggested, 

however, that plaintiff is not within the 

class of those intended to be protected by the 

statute. We can see no cogent reasons to 

apply the remedy the statute provides 

inconsistently with respect to employees 

versus nonemployees. Plaintiff is within the 

protected class and therefore he should be 

afforded all the incidents of the remedy, 

including the unavailability of contributory 

negligence as a defense." 284 N.E.2d at 400- 

401. 

Nor can we see any cogent reasons why the defenses of 

assumption of risk and contributory negligence should be 

inapplicable in a suit brought by a railroad employee but 

applicable in a suit brought by a nonrailroad employee. The 

Safety Appliance Act does not require us to reach this 

unjust result. Crane, supra. Furthermore, our own case of 

Pollard, supra, clearly sets forth our position with respect 

to a statute imposing absolute liability--the defenses of 

assumption of risk and contributory negligence are not 

available. 

There is, however, one area where a railroad employee is 

entitled to a more liberal standard imposing liability than 

is a nonrailroad employee--and that is with respect to the 

question of causation. In this case, the plaintiff offered 

an instruction which defined causation by the standards of 

the Federal Employers' Liability Act. That portion of the 

instruction stated: 

". . . Under the Federal Safety Appliance Act, 

if a railroad, such as the Defendant in this 

action, violates any such act, and if the 

violation contributes in any way or manner to 

the injury of a person such as the Plaintiff 

in this case, such railroad shall be liable in 

damages to that person for his injuries." 
(Emphasis added. ) 

This instruction defined causation according to the 

definition contained in the Federal Employers' Liability Act 

(45 U.S.C. S 51) and court decisions further solidifying the 

statutory definition. See Gallick v. Baltimore and Ohio 

Railroad Co. (1963), 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 

618; Rogers v. Missouri Pacific Railroad Co. (1957), 352 

U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493. The U.S. Supreme 

Court held in Crane, that one who is not a railroad employee 

cannot invoke the benefits of the Federal Employers' 

Liability Act in a suit against a railroad. (Crane, supra, 

395 U.S. at 166.) Because there is no definition of 

causation in the Safety Appliance Act, we conclude that the 

issue of proximate cause must be decided on the basis of the 

definition which prevails under state law. See, McNair v. 

Berger (1932), 92 Mont. 441, 15 P.2d 834; Montana Jury 

Instruction Guide, No. 15.00, and cases cited in the 

commentary to this instruction. We have not fashioned a 

special definition to apply to statutes imposing absolute 

liability. Pollard, supra. 

SAFE PLACE TO WORK 

We next discuss the issue of whether the railroad owed 

plaintiff the duty to provide him with a safe place to work 

even though he was a nonrailroad employee. The legal basis 

upon which the plaintiff would impose this duty upon the 

railroad was never clearly set forth at the trial court 

level, nor is it clearly set forth in this appeal. 

Plaintiff alleged in his complaint, and the allegation 

is carried over into the pretrial order--that the railroad 

breached its duty to provide him with a safe place to work. 

In the complaint, this was simply an allegation made without 

any specification of how or why the railroad did not provide 
him with a safe place to work. He did, however, have 

several separate specifications of negligence in addition to 

the safe place to work allegation. In the pretrial order, 

he has a general allegation that the railroad failed to 

provide him with a safe place to work, and then several 

specifications of negligence, all apparently aimed at 

specifying how or why the railroad breached its duty to 

provide him with a safe place to work. 

Nowhere in the complaint or in the pretrial order is 

there an indication that the plaintiff claimed his status as 

a businesss-invitee triggered the railroad's duty to provide 

him with a safe place to work. This allegation first 

appeared in plaintiff's offered instructions, at the 

conclusion of the trial. We can get an appreciation of what 

happened only by reading the transcript with relation to the 

settlement of jury instructions. Plaintiff's instructions 

stated first that the plaintiff was a business invitee of 

the railroad, and second, that as a business invitee, the 

railroad owed him a duty to provide him with a safe place to 

work. It does not appear that the railroad refuted 

plaintiff's contention that he was a business invitee--for, 

on that question at least, the law is clear. However, the 

railroad did object to any conclusion that the duty to 

provide plaintiff with a safe place to work arose from 

plaintiff's status as a business-invitee. 

Neither the railroad nor the plaintiff disagree that as 

to an invitee, the railroad had a duty to exercise 

reasonable care to avoid injuring an invitee on the 

premises. But plaintiff went a step further and persisted 

in his claim that the railroad had the duty, based on 

plaintiff's invitee status, to provide him with a safe place 

to work. He based his argument on the Federal Employers' 
Liability Act, which, judicially interpreted, requires 

railroad employers to provide a safe place to work for their 

employees. Plaintiff at no time offered an explanation as 

to how or why, as a nonrailroad employee, he was entitled to 

the protection of the Employers' Liability Act. The 

railroad, on the other hand, cited Crane, supra, for the 

proposition that a nonrailroad employee cannot avail himself 

of the protection provided by the Employers' Liability Act. 

Although the trial court rejected plaintiff's offered 

instructions, there is no clear reason why it did so. Was 

it because the trial court concluded that plaintiff was not 

a business invitee, or was it because the trial court 

concluded that the railroad did not owe plaintiff the duty 

to provide him with a safe place to work? Or was it both? 

Part of the problem here is that the language as to 

business-invitee status and that as to a safe place to work, 

was contained in the same instructions. Thus, without a 

clear ruling from the trial court as to why it rejected the 

instruction, we are left to guess. The problem is 

compounded because plaintiff 's counsel made no effort to 

obtain a clear ruling from the trial court as to why the 

instructions were rejected. He should have done so. We are 

left with this situation at that point where the trial court 

refused plaintiff's offered instructions: the plaintiff 

offered no substitutes; the defendant offered no 

instructions on the question of the legal relationship 

existing between plaintiff and the railroad (the railroad 

contended plaintiff was an invitee); and the trial court 

proposed none of its own. The result is that the record is 

barreh of instructions that would have in any way set forth 

plaintiff's theory of the case on the negligence count had 

the case been submitted to the jury. This is an anomolous 
situation, to say the least. 

As we have indicated, plaintiff in this appeal, now sets 

forth the issues as to business-invitee status and safe 

place to work, as separate issues. That is not the way they 

were presented to the trial court. Plaintiff in his briefs 

to this Court sets forth citation after citation of 

encyclopedia law that plaintiff was a business invitee--and 

with this the railroad agrees--as do we. There is no 

question, and apparently never was one that plaintiff at 

least had the status of a business-invitee. We do not need 

to belabor this point here. 

In his briefs, the plaintiff contends that the railroad 

owed him a safe place to work, his counsel provides us with 

absolutely no authority, nor even good argument, that the 

railroad had a duty to provide him with a safe place to 

work. All of his citations miss the issue he raises. 

Nonetheless, there are important factors in this case, not 

brought to our attention by either party, that compel us to 

hold that under the facts of this case, the railroad did owe 

plaintiff the duty to provide him with a safe place to work. 

It is an elementary principle that an employer must 

provide its employees with a safe place to work. Shannon v. 

Howard S. Wright Const. Co. (1979), Mont . , 593 

P.2d 438; Pollard, 418 P.2d at 872; Allen v. Bear Creek Coal 

Co. (1911), 43 Mont. 269, 115 P. 673, 677; Anderson v. 

Northern Pac. Ry. Co. (1906), 34 Mont. 181, 85 P.2d 884, 

890. See also 56 C.J.S. Master& Servant S 204; 53 

Am.Jur.2d Master & Servant S 195. The railroad, of course, 

acknowledges this principle, but argues that this principle 

cannot apply here for the simple reason that plaintiff was 

not its employee. As far as it goes, it is a good argument. 

But we cannot ignore the real relationship between the 
Burlington Northern and Ksanka Lumber Company. 

At the beginning of trial, counsel for the railroad 

filed a motion in limine with the trial court, based on the 

following revelations: Ksanka Lumber Company is a whollyowned subsidiary of Plum Creek Lumber Company; and Plum 

Creek Lumber Company is in turn, a wholly-owned subsidiary 

of Burlington Northern. The railroad asserted that it would 

be highly prejudicial for the jury to learn of its ownership 

of Ksanka Lumber Company, through the Plum Creek Lumber 

Company. It appears that this motion was granted, for the 

jury did not, at least directly, have this information. It 

may well be true that the information would be highly 

prejudicial to the defendant railroad here, but we cannot 

ignore this information in determining the duties owed by 

the railroad to the plaintiff here. The plaintiff was 

performing work more directly connected to the operations of 

a railroad than to the operations of a lumber company. 

Plaintiff worked at a railroad siding, filling railroad 

cars with woodchips. His work required him to not only be 

on railroad tracks, but also to climb on and off railroad 

cars to facilitate their movement to the place of loading. 

He also had to shuttle the railroad cars away from the 

loading area to make room for the next railroad car to be 

loaded. That the railroad leased the premises to Plum Creek 

Lumber Company, which in turn leased the premises to Ksanka 

Lumber Company--both being the alter ego of the railroad 

company--makes little difference. The plaintiff was working 

directly in the operations of the railroad in every sense of 

the word. 

We do not question here the right of a railroad 

corporation to create wholly-owned subsidiary corporations 

to conduct some of its business. We do, however, question 
the right of a railroad by so doing, to absolve itself of 

the responsibility to provide a safe place to work for 

employees who are technically employed by a subsidiary 

corporation, but whose employment is directly related to the 

operations of a railroad. We thus hold that the defendant 

railroad here, owed the plaintiff the duty to provide him 

with a safe place to work. 

Where one corporation is the wholly-owned subsidiary of 

the parent company, and where the employee is engaged in 

duties that are as closely connected to the business of the 

parent company as they are to the subsidiary corporation, as 

they are here, justice requires us to hold that both 

corporations owed the duty to provide plaintiff with a safe 

place to work. It is safe to assume that plaintiff 

collected Workers' Compensation benefits from Ksanka Lumber 

Company, and thus that Ksanka's duty to provide a safe place 

to work was discharged by the Worker's Compensation 

benefits. On the other hand, the right of the worker to sue 

the parent company under the facts here is not doubted. Had 

the employee been able to sue as an employee of the railroad 

under the Federal Employers' Liability Act, supra, and 

invoked the Safety Appliance Act as his cause of action, 

there is no doubt that his chances of recovery against the 

railroad would have been considerably enhanced. For 

example, plaintiff would have been entitled to a more 

liberal definition of causation than that to which he is 

entitled in this case. Thus, the railroad is entitled to a 

stricter definition of causation to be applied in this case. 

The order of the District Court directing a verdict on 

both counts is reversed. This cause is remanded to the 

District Court for a new trial. 
We Concur: 

Chief Justice 

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