### No. 14792 INTHE SUPREMECOURT OF THE STATEOF MONTANA

KEITH REYNOLDS, PlaintiffandAppellant,

BURLINGTONNORTHERN, INC., a corporation, Defendantsand Respondents.

Appeal from: District Court of the Eleventh JudicialDistrict, Inand For the CountyofLincoln, HonorableRobert Holter,Judgepresiding. Counsel of Record: ForAppellant: Murphy, Robinson,Heckathorn and Phillips,Kalispell,

Montana I. JamesHeckathorn argued, Kalispell,Montana ForRespondents: Kroschel, Petersonand Koolen, Billings,Montana K. 

### Kent Koolen argued, Billings,Montana

Submitted: March 27, 1980 Decided: 

## DEC9- 

### '@@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 Burlington 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 infavor 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 toprovide a safeplace towork. Second, that the railroad violated theFederal SafetyAppliance Act, and that he was amember of theprotected classunder theAct. 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 safeplace towork. Itappears that the railroad had a twopronged defense in relation to the Safety Appliance Act. First, the railroad contended thatbecause plaintiff was not

on the main lineof 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 toassertthedefenses of assumption of risk and contributory negligence, and pleaded both defenses

asaffirmativedefenses. We first 

### set forth the facts of the accident beforeagain venturing into the procedural entanglement atthe end of trialwhich led tothisappeal. 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 leasedby Ksanka Lumber Company from the defendant railroad. (We note, parenthetically, and willhave more tosay of this later, that Ksanka Lumber Company 

### is a wholly-owned subsidiaryof Plum CreekLumber Company, and thatPlum Creek Lumber Company is inturn, a wholly-owned subsidiaryof the defendant railroad.) On October 3, 1974, atapproximately 8:00 a.m., railroad employees placed a stringof five empty

cars against a sixth car already placed on a side track adjacent toKsanka's woodchip-loading facility. None of the brakes on the fivecarswere set. When plaintiff came to work at4:00 p.m., the firstof the six carshad already been spotted atthe loading chute. This car was approximately 150feetfrom 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 totheloading area toload it withwoodchips. To facilitateeven loading of woodchips, an electriccar puller is provided for the loading operation. This puller

moves a car up and down the track toallowwoodchips leaving the chute to fill the car evenly. After stopping the lead

car at the chip loader, the plaintiff attached the carpuller 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 collisionpropelled plaintiff intothe air and hislegwas 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 towork in April 1977, but immediately experienced additionalproblems with the footon hisinjured leg. Hisphysical.problemsprevented 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 inDecember 1975. The procedural problems in relation to the substantive basis for recovery, had their beginning inthepleadings 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 towork. Healsoenumerated 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 hisinjuries. We cannot tell from the District Court filewhether 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

asto supplement thepleadings (seeRule 16, M.R.Civ.P.) setforththe issues of factand law asfollows: 1. Was the defendant negligent inwhich negligence was theproximate causeof plaintiff's injury? 2. Was theplaintiff contributorily negligent? 3. Did plaintiff assume the risk of injury? 4. Did defendant violatethe SafetyApplianceAct? 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 settlingjury 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 assuch the railroad owed plaintiff aduty 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 dutytoprovide a safeplace towork. 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 thatthe railroad didnot

owe plaintiff a duty to provide him with a safe place towork, or whether it also ruled that plaintiff was not a business invitee. Neither plaintiff's counsel nor defense counsel made any efforttoobtain 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 hisnegligence 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 againstplaintiff on thenegligence theory. Similar problems cropped up withrelationtoplaintiff's theory of recovery under the Safety Appliance Act. The record 

### is equally clouded. The partiesdid not request the trial court to enter any preliminary rulings as towhether theAct applied in this case, and if applicable, the nature and extent of 

### its application. Thus, the problems first

aroseduring settlement of jury instructions relating tothe Act. Plaintiff offered several instructions relating tohis interpretation of the Act as applied to this case, and the trialcourt refused most of them. Unfortunately, the record does not tell us the particulars of why the trial court considered the instructions tobe inerror or inapplicable. Plaintiff offered an instruction defining causation under the Act, but which used the language contained inthe Federal Employers' Liability Act 

### (551 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 trialcourt refused thisinstruction, 

### we cannot determine whether he ruled that both paragraphs were inerror, or whether the causation language or contributory negligence statement was in error. The plaintiff made no effort toobtain a clarifying ruling todetermine 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. Itmakes littlesense for plaintiff tooffer an instruction statingthatcontributory 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 thatthe railroad assertsthat it didnot 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 thathe 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 thismotion. In any event, it appears that the motion was orally argued, and that within a few days the trial court directed the clerk toenter a minute entry stating that the motion for a new trialwas denied. Reasons for denial 

### were not stated. Plaintiff'sappeal 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 towork? (3) Does the Federal Safety Appliance Act apply to Reynolds? (4) Is contributory negligence a defense under the Act? (5) Did theCourt err in directing 

### itsverdict againstReynolds? 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 SafetyAppliance Act liability tothejury? (3) Did the Court commit reversible error by directinga verdict against theplaintiff? 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 sideshad paid closer attention to the law and to drafting their proposed jury instructions. We note also that the trialcourt should not be faulted by theplaintiff 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

itsrulingswith relation totheproposed 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 tothe resultsatthe trialcourt level. Because of the nature of the rulings affectingplaintiff's offered instructions astohisnegligence theory of liability,

### we cannot 

### tellwhy the trialcourt 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, wedeterminethat

### wemust decidewhether, under the factsof this case, the defendant railroad had the duty toprovideplaintiff with a safeplace towork. Although it appears that the railroad concedes the right of the plaintiff to sue under the Safety Appliance Act, 

### we must alsodetermine 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 SafetyApplianceAct (45U.S.C. S 1- 16) in providing a car with a defective handbrake." Defendant, on theother hand, had several contentions inthe pretrial order pertaining to 

### its defense of the case. It alleged firstthat 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 ofhis injuries (althoughthiscontention was withdrawn atthe timejury instructions 

### were settled.) Fifth, the railroad asserted that there 

### is no evidence that any of the handbrakes on any of thecarswere defective. Initially, 

### we note that the defendant did not assert during settlement of jury instructions, nor does it assert here, that the SafetyAppliance Act 

### is inapplicable because the railroad cars

### were not inuse on defendant's lineatthe 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 SAFETYAPPLIANCE ACT: SubstantiveApplication Plaintiff's offered instructions applying the Safety Appliance Act, stated thatproof of a violationof theAct, together with 

### a causal relationship between the violation and the injuries sustained, 

### is sufficient to impose liabilityon 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' LiabilityAct--and we shall have more to say of this later. The railroad alsooffered several instructions defining the Act, but provided that contributory negligence 

### is a defense even if a violationof the Act

### isproved. (Aswe previously stated, the railroad eliminated itsassumption of risk defense from its offered instructions because it believed that as a matter of evidence, the defense was inapplicable

# .) The trialcourt refused plaintiff's offered instructions and approved the defendant's instructions. Contributory negligence was thus a defense under theAct. 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 statedthat thetermswere not synonymous. The trial court approved several more of defendant's offered instructions that apply to plaintiff's theories of recovery; but the instructionsdo not specify that they are intended to apply either to the negligence theory of recovery, or totheSafetyAppliance Acttheoryof recovery,

or to both. The danger, of course, is that the jury, without being properly instructed, could improperly apply the instructionswithout thenecessary 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 tostatewhether it applied toeither or both of plaintiff's theories of recovery. A fourth instruction also defined contributory negligence, and is similarlydefective for a failure to designate which theory it applied to. A fifth instruction defined the 

### term proximate cause, and although properly applicable to both theoriesof recovery, failed tocontain language tellingthejury that thedefinitiondid apply toboth 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 SafetyAppliance 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 theFederal SafetyAppliance Act asthey apply tothiscase. We have no doubt that theplaintiff 

### is a member of the class which can invoke theprovisions of the Federal Safety Appliance Act, 45 U.S.C. 

### 55 1thru 46. Section 11 provides inpart: "It shallbe unlawful for any common carrier



# ... tohaul, or permit tobe hauled or used on its line, any car

# . ..not equipped with



# . . . efficienthand 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 51thru 60) inthecaseof railroad employees, and by suits in statecourts invoking statelaw 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 StatesSupreme Court long ago stated: 

# ".

.. thisAct, fairly interpreted, must be held to protect allwho need protection from dangerous results due to maintenance or operation of congressionally prohibited defectiveappliances." In Boyer v. Atchison, Topeka and Santa Fe Railway Co. (1967), 38 111.2d 31, 230 N.E.2d 173, the Illinois SupremeCourt held thata 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 equallyclear 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 assertcontributory negligence or assumption of risk asdefenses ina 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 suitunder the SafetyAppliance Act must prove (under Iowa law) thathe 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 toan employee performing the same task in the same manner asdidpetitioner. 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. at167. 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 liabilitynot 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 SafetyAppliance Act but todisallow the defenses under the Montana Scaffolding Act. In either case, the principle is the same, and theprinciple should be consistentlyapplied. 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 IllinoisSupreme Court determined thatthe 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 assumptionof riskwas not availableunder Illinoislaw, the court stated: "Under such a policywhich imposes an absolute duty toprovide 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 at178. Not tobe 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 IllinoisAppellate 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 at400.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 classof those intended tobe protectedby 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 asa defense." 284 N.E.2d at400- 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 ina suitbrought 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 forthour positionwith respect to a statute imposing absolute liability--the defenses of assumption of risk and contributory negligence are not available. There is, however, one areawhere a railroad employee is entitled to a more liberal standard imposing liabilitythan is a nonrailroad employee--and that is with respect to the question of causation. In thiscase, theplaintiff offered

an instruction which defined causation by the standards of the Federal Employers' Liability Act. That portion of the instruction stated: 

# ".

.

# .Under theFederal SafetyApplianceAct, if a railroad, such as the Defendant in this action, violates any such act, and ifthe violation contributes inanyway ormanner to theinjuryof aperson such as the Plaintiff inthiscase, such railroad shallbe liablein damages to that person for his injuries."(Emphasis added.)

This instruction defined causation according to the definitioncontained in theFederal Employers' LiabilityAct (45U.S.C. 

### S 51) and courtdecisions 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 inCrane, thatonewho 

### isnot a railroad employee cannot invoke the benefits of the Federal Employers' Liability Act in a suitagainst a railroad. (Crane, supra, 395 U.S. at 166.) Because there is no definition of causation in the SafetyAppliance Act, 

### we conclude that the issueof proximate causemust be decided on thebasisof 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 theduty toprovide him with a safeplace towork 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 forthinthisappeal. Plaintiff alleged in his complaint, and the allegation is carried over into the pretrial order--that the railroad breached 

### its duty toprovide him with a safeplace towork. Inthecomplaint, thiswas simply an allegationmade without any specificationof how or why the railroad did notprovidehim with a safe place to work. He did, however, have several separate specifications of negligence inaddition to the safeplace 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 safeplace towork. Nowhere in the complaint or in the pretrial order is there an indication that theplaintiff claimed his statusas

a businesss-invitee triggered the railroad'sduty toprovide him with a safe place to work. This allegation first appeared in plaintiff's offered instructions, at the conclusion of the trial. Wecan get an appreciationof what happened onlyby reading the transcriptwith relation tothe 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 adutytoprovide him with a safeplace to work. It does not appear that the railroad refuted plaintiff's contention that he was a business invitee--for,

on that question atleast, 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 statusasa 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 inviteestatus, toprovide him with a safeplace to work. He based his argument on the Federal Employers'Liability Act, which, judicially interpreted, requires railroad employers toprovide a safeplace towork for their employees. Plaintiff at no 

### time offered an explanation as tohow or why, asa nonrailroad employee, he was entitledto 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 theprotection provided by theEmployers' LiabilityAct. 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 thatplaintiff was not

a business invitee, or was it because the trial court concluded that the railroad did not owe plaintiff the duty toprovide him with a safe place towork? Or was it both? Part of the problem here 

### is that the language as to business-invitee statusand that astoa safeplace towork,

was contained in the same instructions. Thus, without 

### a clear ruling from the trial court as towhy 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 instructionswere rejected. He should have done so. We are leftwith thissituationatthatpointwhere thetrialcourt 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 thatwould have in any way setforth plaintiff's theory of the case on the negligence count had the case been submitted to thejury. This 

### is an anomoloussituation, tosaytheleast. As

### we have indicated, plaintiff inthisappeal, now 

### sets forth the issues as to business-invitee status and safe place towork, asseparate issues. That isnot theway they

were presented tothe trial court. Plaintiff inhisbriefs 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 statusof a business-invitee. We do not need tobelabor thispoint here. Inhisbriefs, the plaintiff contends that the railroad owed him a safeplace towork, 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 toour attention by either party, that compel us to hold thatunder the factsof thiscase, therailroad didowe plaintiff theduty toprovide him with a safeplace towork. It 

### is an elementary principle that an employer must provide 

### itsemployees with a safeplace towork. Shannon v. Howard S. Wright Const. Co. (1979), Mont

# . , 593 P.2d 438; Pollard, 418 P.2d at872; 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 thisprinciple cannot apply here for the simple reason that plaintiff was not 

### itsemployee. Asfar asit goes, it 

### is a good argument. But 

### we cannot ignore the real relationship between theBurlingtonNorthern 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 BurlingtonNorthern. The railroad assertedthat it would be highlyprejudicial for thejury tolearnof 

### itsownership of Ksanka Lumber Company, through the Plum Creek Lumber Company. It appears that thismotion was granted, for the jury did not, atleastdirectly, 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 directlyconnected totheoperationsof

a railroad than totheoperationsof a lumber company. Plaintiff worked ata railroad siding, fillingrailroad

cars with woodchips. Hiswork 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 therailroad leased thepremises toPlum Creek Lumber Company, which in turn leased the premises toKsanka Lumber Company--both being the alter ego of the railroad company--makes littledifference. The plaintiff was working directly intheoperationsof the railroad inevery senseof theword. We do not question here the right of a railroad corporation to create wholly-owned subsidiary corporations toconduct some of 

### its business. We do, however, questionthe 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 isdirectlyrelated tothe operations of a railroad. We thus hold that the defendant railroad here, owed the plaintiff the duty to provide him with a safeplace towork. Where one corporation is the wholly-owned subsidiary of the parent company, and where the employee is engaged in duties that are ascloselyconnected tothebusiness of the parent company asthey aretothe subsidiarycorporation, as they are here, justice requires us to hold that both corporations owed the duty toprovide plaintiff with a safe place to work. It 

### is safe to assume that plaintiff collectedWorkers' Compensation benefits from Ksanka Lumber Company, and thus thatKsanka's dutytoprovide a safeplace to work was discharged by the Worker's Compensation benefits. On the other hand, the rightof theworker tosue theparent company under thefactshere isnotdoubted. Had theemployee been abletosue asan employee of therailroad 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 thiscase. Thus, the railroad is entitled toa stricterdefinitionof causation tobe applied in thiscase. The order of the District Court directing a verdict on both counts is reversed. This cause is remanded to the DistrictCourt for a new trial.WeConcur:

Chief Justice

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# / Justices