No. 12730 INTHE 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 18

## '975Mr. JusticeWesley Castles delivered the Opinion of the court.
This 

### is an appeal from a judgment for plaintiff Leland J. Frank entered in the districtcourt, Yellowstone County, on
a jury verdict in the amount of $20,000. Plaintiff brought the action torecover 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. Atthe close of plaintiff

### 's case, and atthe close of 

### all evidence, defendant moved for 

### a directed verdict on the grounds that: (a) as a matter of 

### lawnegligence had not been proven, and (b) as a matter of law plaintiff was contributorilynegligent. Motions for a new trialand judgment notwithstanding the verdict,

were denied. The accident occurred ata railroad crossing on Railroad Street inthe cityof Laurel, Montana. It occurred on a bitterly cold earlymorning of December 9, 1972, sometimebetween 12:30 and 2:00 a.m. Railroad Streetruns east and west, while the railroad track intersects ata northeast-southwest angle. The train

was moving northerly; the plaintiff's vehicle northeasterly. Railroad Street in the vicinity of the crossinghas a slight, gradual incline startingapproximately 400 feet west of the crossing. The speed limit

### is 25 miles per hour. The street atthat time was covered with packed snow and ice. The fields on either side of the streetwere also snow covered. In the last 600 feetwest of the crossing, two street lights are located along thenorth side of Railroad Street. A mercury vapor light is located atthe 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. Thatlight was high enough tobe visible toa motorist. It was lighted thenight of the accident. As to obstructions, plaintiff testified therewere so many obstacles that he could not see the trainuntilhe got right to it. However, this testimony 

### is totally refuted by evidence and the exhibits 

### On the afternoon preceding the accident plaintiff had driven toBillingswith hisbrother-in-law; he testifiedhe spent two hours in ~iny's Tavern and had two glasses of beer. He returned tohis farm near Park City atabout 6:00 p.m. He lefthis farm at about 7:30 p.m. and went tohis father-in-law's tavern where he stayed until 11:30 p.m.; duringwhich time he admitted drinking

seven glasses of beer. He 

### then returned to the home of hisbrotherin-law inLaurel, where he remained for a period of time before leaving todrive tothe Owl Cafe. Plaintiff turned onto Railroad Street from Yellowstone Avenue about 600 feetwest 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 hisbrakes, 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 at2:00 a.m. The Railroad appeals and sets forth four issues, but only

one combined issue isnecessary 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 contributorilynegligent 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, inand of itself, without additional warning signals. Jawella v. Northern Pacific Ry. Co., 101Mont. 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., 120Mont. 280, 289, 182 P.2d 851; Dimich v. Northern Pac. Ry., 136Mont. 485, 348 P.2d 786; Hernandez v. C.B. & 

### Q. RR.Co., 144Mont. 585, 398 P.2d 953. In Montana the only exception to the general rulerecognized by these cases 

### is that ata crossingwhere, because of peculiar and unusual facts and circumstances and owing to some peculiar environment rendering the situationunusually hazardous, the railroad company may be negligent in failing to provide additional safeguards orwarnings other than the presence of the train standing on
orpassing over the crossing. In Broberg the Court described the exception in this language:''While it 

### is the general rule that it isnot negligence on the part of a railway company in failing toblow the locomotive whistle, ring thebell, or to place warning lights along the trainwhere it has stopped on an ordinary crossing orwhere it 

### is slowly moving thereover, or to provide 

### a flagman towarn the traffic. such failure 

## ky, under peculiar facts and circumsfances orunder eculiar environments rendering the situationunusually fazardous, render the company liable fornegligence. 

# **

# *

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The question as towhether ornot the crossing involved inthis action was extrahazardous resolves

itself, under the ruleapproved by this court in the Jarvella case tothis: Were there present for the determination of thejury any peculiar orunusual facts and circumstances or any peculiar environment rendering the situationunusually hazardous. II Here, the question 

### isreallywhether therewas any substantial credible evidence of any peculiar environment rendering the situationunusually hazardous. In Graham v. Rolandson, 150Mont. 

### 270, 283, 435 P.2d 263, this Court explained substantial credible evidence inthis language:

IISubstantialcredible evidence sufficient towarrant submission of the issue of contributory negligence to thejury is governed by the same rules that areused indetermining the sufficiency

of the evidence to support a verdict on that issue. Substantial credible evidence in that regard simply means such evidence aswillconvince reasonable menand on which such men 

### may not reasonably differ 

### as towhether it establishes the verdict on that issue; if 

### allreasonable men must conclude that the evidence does not establishthe verdict on that issue, then it 

### isnotAsubstantial 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,

orwhenever their testimony 

### is inherently impossible, such evidence isnot "substantial1'. The leading case supporting this principle isCasey v. Northern Pacific Ry. Co., 60 Mont. 56, 66-69, 198 P. 141, followed and cited innumerous decisions of this Court. Its language isparticularly appropriatehere: "Counsel for plaintiff insist that the evidence isconflicting, and, since thejury found upon the issues and the lower court denied a new trial, this court iswithout authority to interfere but the 1 principal conflicts ariseupon 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 isharmonious, and reasonable and consistent with physical facts, but thejury disregarded it altogether and must have based the verdict solelyupon the surmises, the guesses and estimates of the plaintiff.

"It 

### is the generalrule that an order denying a new trialupon the ground that the evidence is insufficient to sustain the verdict willnot 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 

### isreal 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 ata 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 trialjudge should,without hesitation, set the verdict aside; and in the event of his not doing so, this court willgrant a new trial. 1

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Primarily, it is the province of thejury topass upon the credibility of the witnesses and the weight tobe given to their testimony, but the determination of thejury 

### isnot conclusive. Insufficiency of the evidence 

### is a statutory ground for a motion for a new trial 

# * * * and inpassing upon the motion it is the duty of the trialcourt toweigh the evidence, and, if it 

### isnot 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 

### isnot, the appellate court must then determine whether there issubstantial evidence towarrant the verdict and 

### willnot abdicate 

### its authority in favor of thejury's findings. Jurors are subject tothe ordinary infirmities of human nature, and cases are sometimes presented wherein justice would be denied if the courts failed tointerfere. "We arenot unmindful of the advantageous position occupied by thejury and the lower court inhaving the w,tnesses before them, inhearing them testify, and observing their demeanor; but, though the appearance of a witness is an aid injudging his credibility, it 

### isnot an infallibleone. Dissimulation 

### is often difficult todetect, and falsehood 

### is often clothed in the garb of truth. Whenever the surrounding circumstances make the story of a witness highly improbable or incredible, orwhenever the testimony 

### is inherently impossible, a new trial should be ordered. Physical conditions may point so unerringly tothe truth as to leaveno room for a contrary conclusion based on reason or common sense, and under such circumstances the physical facts arenot affected by sworn testimony which inmere words conflicts with them. 

# *** "The corollary of the firstrule above is stated cogently inMcAllister v. McDonald, 

### 40 Mont. 375, 106 Pac. 882. It was there held that the supreme court 

### isnot authorized to affirm an order denying a new trial: (a) Where the evidence tending to support the verdict 

### isan isolated statement of a witness which 

### is in conflict with his other statements; or (b) when the verdict iscontrary tothe great weight of the evidence, and the evidence which tends to sustain the verdict isimpeached or rendered improbable by conceded facts, or is against allreasonable inferences or probabilities of the case; or (c) when the verdict, though supported by some evidence, is soutterly atvariance with the real and unexplained facts that the court can say that it is clearly wrong. "The rule has been stated repeatedly in thisjurisdiction that a court may reject the most positive testimony, though thewitness be not discredited by direct evidence impeaching him or contradicting his statements. The inherent improbability of his story may deny allclaims torespect. 

# *

# ** The credulity of courts isnot tobe deemed commensurate with the facility or vehemence with which a witness swears. IIt isa wild conceit that any court of justice is bound by mere swearing. It is swearing creditably I that is toconclude itsjudgment. [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 contradictedby his previous statements,by the physical facts, by every one of defendant's witnesses, and by his ownwitness, Marchington. Some of his declarations are toq transparent to be entitled to credence,are improbableupon 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.II



### (Emphasis supplied.) Themost recent case concerning the subject of extrahazardous crossings is Hernandezv. C.B.& 

### Q. RR.Co., 144Mont. 585, 398 P.2d 953. That case is controllinghere. In Hernandez the Court impliedly criticized its previous decisions in Broberg and Dimich, indicating that some of the factors considered in those caseswould not necessarilybe considered again in determining whether an extrahazardous crossing existed. In Hernandez, the plaintiff's decedent was a passenger in an automobilewhich struck the side of a moving freight train at a railroad crossing

near Hardin. The crossing was a spur linewhich was used seasonally during the sugarbeet 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 dismissaland this Court affirmed. In Hernandez, the speed limit for traffic approaching the crossing was 

### 55 miles per hour. Here, the speed limitwas 25 miles per hour. The distances required forunobstructed view of the tracks canbe 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 

### ispractically level, and the slight incline startsapproximately 400 feetwest of the crossing. Once plaintiff's vehiclewas within 400 feet of the crossing, his vehicle was on the incline and his lightswould show along the incline in the same manner as if the streetwas perfectly level. Furthermore, there 

### is even more reason inthis case than in Hernandez for a finding asa 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, therewas not a street light at the crossing inHernandez, as inthe instant case. Thus, therewas not substantial credible evidence to support thejury verdict. Additionally, here the plaintiff was contributorilynegligent as a matter of law. He did not observe the train until he was 30 feet away, although he testifiedhis lightswere in good condition. He did not observe the crossbuck, although his view was completely unobstructed. He clearly failed tokeep 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 contributorynegligence as a matter of law. Monforton v. Northern Pacific Ry., 138 Mont. 191, 355 P.2d 501. The judgment of the district court isreversed and the

cause dismissed. /--- Weconcur: ,

Justices. 

# 1