No. 12730 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

LELAND J. FRANK, 

Plaintiff and Respondent, 

-vs - 

BURLINGTON NORTHERN, INC., 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant : 

Crowley, Kilbourne, Haughey, Hanson & Gallagher, 

Billings, Montana 

Jack Ramirez argued, Billings, Montana 

For Respondent : 

Michael J. Whalen argued, Billings, Montana 

- 

'tic I sys Filed:. ~- - 

Submitted: May 8, 1975 

Decided J~L 1 8 '975 
Mr. Justice Wesley Castles delivered the Opinion of the court. 

This is an appeal from a judgment for plaintiff Leland 

J. Frank entered in the district court, Yellowstone County, on 

a jury verdict in the amount of $20,000. Plaintiff brought the 

action to recover damages for personal injuries and property damage 

sustained when he drove his 1964 pickup truck into the side of 

the 24th car of a freight train. Plaintiff alleged negligence on 

the part of the railroad and the railroad raised the defense of 

contributory negligence. 

At the close of plaintiff 's case, and at the close of all 

evidence, defendant moved for a directed verdict on the grounds 

that: (a) as a matter of law negligence had not been proven, and 

(b) as a matter of law plaintiff was contributorily negligent. 

Motions for a new trial and judgment notwithstanding the verdict, 

were denied. 

The accident occurred at a railroad crossing on Railroad 

Street in the city of Laurel, Montana. It occurred on a bitterly 

cold early morning of December 9, 1972, sometime between 12:30 

and 2:00 a.m. Railroad Street runs east and west, while the railroad track intersects at a northeast-southwest angle. The train 

was moving northerly; the plaintiff's vehicle northeasterly. 

Railroad Street in the vicinity of the crossing has a 

slight, gradual incline starting approximately 400 feet west of 

the crossing. The speed limit is 25 miles per hour. The street 

at that time was covered with packed snow and ice. The fields on 

either side of the street were also snow covered. 

In the last 600 feet west of the crossing, two street 

lights are located along the north side of Railroad Street. A 

mercury vapor light is located at the east end of Railroad Street. 

Another street light is located on a telephone pole approximately 

ten to fifteen feet from the northeast comer of the crossing. That 
light was high enough to be visible to a motorist. It was lighted 

the night of the accident. 

As to obstructions, plaintiff testified there were so many 

obstacles that he could not see the train until he got right to it. 

However, this testimony is totally refuted by evidence and the exhibit

On the afternoon preceding the accident plaintiff had 

driven to Billings with his brother-in-law; he testified he spent 

two hours in ~iny's Tavern and had two glasses of beer. He returned 

to his farm near Park City at about 6:00 p.m. He left his farm at 

about 7:30 p.m. and went to his father-in-law's tavern where he 

stayed until 11:30 p.m.; during which time he admitted drinking 

seven glasses of beer. He then returned to the home of his brotherin-law in Laurel, where he remained for a period of time before 

leaving to drive to the Owl Cafe. 

Plaintiff turned onto Railroad Street from Yellowstone 

Avenue about 600 feet west of the crossing and proceeded towards 

the crossing at 15 to 25 miles per hour with his headlights on 

low beam. He did not observe the train crossing in front of him 

until he was 30 feet from it. He applied his brakes, but hit a 

yellow freight car which was the 24th car from the front of the 

train. After the accident, plaintiff walked to the home of his 

brother-in-law and reported it to the police at 2:00 a.m. 

The Railroad appeals and sets forth four issues, but only 

one combined issue is necessary for disposition of the case. That 

issue is--- Was there any credible evidence to sustain the verdict 

that defendant was negligent and whether, in any event, plaintiff 

was contributorily negligent as a matter of law? 

This Court has consistently held that ordinarily a train 

moving over a crossing is effective and adequate warning of its 

presence, in and of itself, without additional warning signals. 

Jawella v. Northern Pacific Ry. Co., 101 Mont. 102, 113, 53 P.2d 446; 

Incret v. Chicago, M.St.P. & P.R.Co., 107 Mont. 394, 86 P.2d 12; 
Broberg v. Nor.Pac.Ry.Co., 120 Mont. 280, 289, 182 P.2d 851; 

Dimich v. Northern Pac. Ry., 136 Mont. 485, 348 P.2d 

786; Hernandez v. C.B. & Q. RR.Co., 144 Mont. 585, 398 P.2d 953. 

In Montana the only exception to the general rule recognized 

by these cases is that at a crossing where, because of peculiar and 

unusual facts and circumstances and owing to some peculiar environment rendering the situation unusually hazardous, the railroad 

company may be negligent in failing to provide additional safeguards or warnings other than the presence of the train standing on 

or passing over the crossing. 

In Broberg the Court described the exception in this 

language : 

''While it is the general rule that it is not 

negligence on the part of a railway company 

in failing to blow the locomotive whistle, ring 

the bell, or to place warning lights along the 

train where it has stopped on an ordinary crossing 

or where it is slowly moving thereover, or to 

provide a flagman to warn the traffic. such failure 

ky, under peculiar facts and circumsfances or under 

eculiar environments rendering the situation unusually 

fazardous, render the company liable for negligence. * * * 

11 The question as to whether or not the crossing 

involved in this action was extrahazardous resolves 

itself, under the rule approved by this court in 

the Jarvella case to this: Were there present for 

the determination of the jury any peculiar or unusual 

facts and circumstances or any peculiar environment 

rendering the situation unusually hazardous. I I 

Here, the question is really whether there was any substantial credible evidence of any peculiar environment rendering 

the situation unusually hazardous. 

In Graham v. Rolandson, 150 Mont. 270, 283, 435 P.2d 263, 

this Court explained substantial credible evidence in this language: 

I I Substantial credible evidence sufficient 

to warrant submission of the issue of contributory 

negligence to the jury is governed by the same 

rules that are used in determining the sufficiency 

of the evidence to support a verdict on that issue. 

Substantial credible evidence in that regard simply 

means such evidence as will convince reasonable men 
and on which such men may not reasonably differ 

as to whether it establishes the verdict on that 

issue; if all reasonable men must conclude that the 

evidence does not establish the verdict on that issue, 

then it is not Asubstantial evidence.. . [Citing cases) A coroi 

story of a witness highly improbable or incredible, or 

As indicated in Graham, whenever the surrounding circumstances make the story of witnesses highly improbable or incredible, 

or whenever their testimony is inherently impossible, such evidence 

is not "substantial1'. The leading case supporting this principle 

is Casey v. Northern Pacific Ry. Co., 60 Mont. 56, 66-69, 198 P. 141, 

followed and cited in numerous decisions of this Court. Its language 

is particularly appropriate here: 

"Counsel for plaintiff insist that the evidence 

is conflicting, and, since the jury found upon 

the issues and the lower court denied a new trial, 

this court is without authority to interfere but the 1 principal conflicts arise upon the plaintiff s own 

testimony, rather than in the testimony of opposing 

witnesses. Of the testimony of the witnesses for 

defendant it is sufficient to say that it is harmonious, 

and reasonable and consistent with physical facts, but 

the jury disregarded it altogether and must have based 

the verdict solely upon the surmises, the guesses and 

estimates of the plaintiff. 

"It is the general rule that an order denying a 

new trial upon the ground that the evidence is insufficient to sustain the verdict will not be reversed 

where the evidence is conflicting, if there is some 

evidence to support the verdict; but the rule has its 

foundation in the assumption that the conflict is real 

and the supporting evidence is substantial. 

"1n Driscoll v. Market Street Cable Ry. Co., 97 Cal. 

553, 33 Am.St.Rep.2031 32 Pac. 591, the supreme court 

of California said: When a jury catches at a semblance 

or pretense of evidence for the purpose of somewhat 

equalizing financial conditions by taking money away 

from one party and giving it to the other without legal 

cause, the trial judge should,without hesitation, set 

the verdict aside; and in the event of his not doing so, 

this court will grant a new trial. 1 

11 Primarily, it is the province of the jury to pass upon 

the credibility of the witnesses and the weight to be 

given to their testimony, but the determination of the 
jury is not conclusive. Insufficiency of the evidence 

is a statutory ground for a motion for a new trial * * * and in passing upon the motion it is the duty 

of the trial court to weigh the evidence, and, if it 

is not sufficient to sustain the verdict, a new trial 

should be ordered (Mullen v. City of Butte, 37 Mont. 

183, 95 Pac. 597), and, if it is not, the appellate 

court must then determine whether there is substantial 

evidence to warrant the verdict and will not abdicate its 

authority in favor of the jury's findings. Jurors are 

subject to the ordinary infirmities of human nature, and 

cases are sometimes presented wherein justice would be 

denied if the courts failed to interfere. 

"We are not unmindful of the advantageous position 

occupied by the jury and the lower court in having 

the w,tnesses before them, in hearing them testify, 

and observing their demeanor; but, though the appearance of a witness is an aid in judging his credibility, 

it is not an infallible one. Dissimulation is often 

difficult to detect, and falsehood is often clothed in 

the garb of truth. Whenever the surrounding circumstances make the story of a witness highly improbable 

or incredible, or whenever the testimony is inherently 

impossible, a new trial should be ordered. Physical 

conditions may point so unerringly to the truth as to 

leave no room for a contrary conclusion based on 

reason or common sense, and under such circumstances 

the physical facts are not affected by sworn testimony 

which in mere words conflicts with them. * * * 

"The corollary of the first rule above is stated 

cogently in McAllister v. McDonald, 40 Mont. 375, 

106 Pac. 882. It was there held that the supreme 

court is not authorized to affirm an order denying 

a new trial: (a) Where the evidence tending to support 

the verdict is an isolated statement of a witness 

which is in conflict with his other statements; or 

(b) when the verdict is contrary to the great weight 

of the evidence, and the evidence which tends to 

sustain the verdict is impeached or rendered improbable by conceded facts, or is against all reasonable inferences or probabilities of the case; or (c) 

when the verdict, though supported by some evidence, 

is so utterly at variance with the real and unexplained facts that the court can say that it is clearly 

wrong. 

"The rule has been stated repeatedly in this jurisdiction that a court may reject the most positive 

testimony, though the witness be not discredited by 

direct evidence impeaching him or contradicting his 

statements. The inherent improbability of his story 

may deny all claims to respect. * * * The credulity 

of courts is not to be deemed commensurate with the 

facility or vehemence with which a witness swears. I It is a wild conceit that any court of justice is 

bound by mere swearing. It is swearing creditably I that is to conclude its judgment. [Citations omitted]. 
I1 In his testimony given upon the trial of this case 

the plaintiff contradicted himself repeatedly; contradicted the allegations of his verified complaint; was 

contradicted by his previous statements, by the physical 

facts, by every one of defendant's witnesses, and by 

his own witness, Marchington. Some of his declarations 

are toq transparent to be entitled to credence, are 

improbable upon any supposition short of actual mental 

imbecility. 

"Plaintiff contented himself with giving estimates 

and demonstrated that he was without capacity for 

judging distances, or deliberately colored his testimony to meet the supposed exigencies of his case. I I 

(Emphasis supplied.) 

The most recent case concerning the subject of extrahazardous crossings is Hernandez v. C.B.& Q. RR.Co., 144 Mont. 

585, 398 P.2d 953. That case is controlling here. In Hernandez 

the Court impliedly criticized its previous decisions in Broberg 

and Dimich, indicating that some of the factors considered in 

those cases would not necessarily be considered again in determining whether an extrahazardous crossing existed. In Hernandez, 

the plaintiff's decedent was a passenger in an automobile which 

struck the side of a moving freight train at a railroad crossing 

near Hardin. The crossing was a spur line which was used seasonally during the sugar beet harvest. The train was made up of 

thirty dark colored, rust-red cars; the automobile struck the 

11 27th car of the train. The accident occurred on an unusually 

dark'' night. The train was moving about ten miles per hour, 

at the time of the accident and the driver of decedent's car 

observed the train at a distance of about 200 yards but was unable to stop. At the conclusion of evidence, the district court 

granted defendant's motion for dismissal and this Court affirmed. 

In Hernandez, the speed limit for traffic approaching 

the crossing was 55 miles per hour. Here, the speed limit was 

25 miles per hour. The distances required for unobstructed view 

of the tracks can be reduced accordingly. Photographs show, 

without question, that the view of the crossbuck, the crossing, 
and the track, was completely unobstructed for the last several 

hundred feet for eastbound traffic approaching the crossing. 

In addition, Railroad Street is practically level, and the slight 

incline starts approximately 400 feet west of the crossing. Once 

plaintiff's vehicle was within 400 feet of the crossing, his 

vehicle was on the incline and his lights would show along the 

incline in the same manner as if the street was perfectly level. 

Furthermore, there is even more reason in this case than in 

Hernandez for a finding as a matter of law that an extrahazardous 

crossing did not exist. In Hernandez, the surface of the road 

was blacktop and the plaintiff struck a dark, rust colored beet 

car. In addition, there was not a street light at the crossing 

in Hernandez, as in the instant case. 

Thus, there was not substantial credible evidence to 

support the jury verdict. 

Additionally, here the plaintiff was contributorily negligent as a matter of law. He did not observe the train until 

he was 30 feet away, although he testified his lights were in 

good condition. He did not observe the crossbuck, although his 

view was completely unobstructed. He clearly failed to keep a 

proper lookout. The condition of the street, the time of day, 

and other factors show clearly that plaintiff was not driving 

in a prudent manner. He was cited for driving too fast for existing 

conditions. Although he denied having entered a guilty plea to 

that charge, the records reveal that a plea of guilty was made. 

But, even without that, the facts reveal plaintiff guilty of 

contributory negligence as a matter of law. Monforton v. Northern 

Pacific Ry., 138 Mont. 191, 355 P.2d 501. 

The judgment of the district court is reversed and the 

cause dismissed. 

/- 
-- We concur: , 

Justices. 1