### No. 14718 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

WILLIAM 0. 

### PENN, Plaintiff and Appellant,

BURLINGTON NORTHERN, INC., a corporation, and The State of Montana, Defendants and Respondents.

Appeal from: District Court of the Sixteenth Judicial District, Honorable A. B. Martin, Judge presiding. Counsel of Record: For Appellant: Allen Beck argued, Billings, Montana For Respondent: 

### Kurt W. Kroschel argued, Billings, Montana 

### P. Keith Keller argued, Helena, Montana

Submitted: December 11, 1979

&+$A.

. ;> 

### Filed:

ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.

Appellant Penn brought a cause inthe DistrictCourt, Sixteenth Judicial District, Rosebud County, torecover damages for injuries suffered inan automobile-train accident. Penn appeals from a jury verdict in favor of respondents, Burlington Northern, Inc. and the State of Montana. Wenote that this cause arose before the Montana comparative negligence statute, section 27-1-702, MCA, took effect. Consequently, any contributory negligence by Penn thatproximately caused his injurieswould bar his recovery of damages from the State and Burlington Northern. Dunham

v. Southside National Bank (1976), 169Mont. 466, 548 P.2d 1383; DeVerniero v. Eby (1972), 159 Mont. 146, 496 P.2d 290. In June 1975, Penn was working asa pipefitter inColstrip, Montana. On June 11, 1975, Penn decided to drive to MilesCity, Montana after work topurchase new 

### tires for his 1975 Ford van. Jerry Dewey and Martin Kussler, friends of appellant, went along for the ride. The trip toMiles City

was uneventful. After the new 

### tires were put on ~enn's van, the three men purchased a sixpack of beer for the road and set out on the return triptoColstrip. Atapproximately 8:30 p.m., the three men stopped for dinner atthe Gausthauf Bar inForsyth, Montana. After dinner of beer and pizza, Dewey and Kussler began playing pool and Penn went toa friend's home to sleep. Approximately one hour later, Penn was awakened by friends who suggested thathe return to the Gausthauf tojoin Dewey and Kussler. Penn returned to the Gausthauf.Atan undetermined 

### time, Penn leftthe Gausthauf to sleep inhisvan. Dewey and Kussler remained in the Gausthauf drinking beer and playing pool. Later, Kussler joined Penn inthe van. Atapproximately 1:30 a.m., Dewey returned to the van. Dewey began drivingback toColstripwith Penn and Kussler asleep inthe back of the van. Dewey testified that asa matter of habit he would ask the owner if he could drive the owner's car and that he thought that he had asked Penn on the night inquestion. Penn has no recollection of any events from the 

### timehe arrived atthe Gausthauf until he awoke in the hospital several days after the accident. The accident occurred southof Forsyth on Highway 315 atthe Koselka crossing, where the railroad track parallels the road before crossing it ata sharp angle. The crossing itself is located ata creek bottom and is visible from the crest of a hill 879 feetnorth of the crossing. There is a drop of about 25 feet inaltitude from the 

### crest of the hill to the crossing. A reflectorized warning sign 

### is located 796 feet from the crossing, and there 

### are reflectorized crossbucks atthe crossing itself. Both warning devices are visible from the crest of the hill. Additionally, seven reflectorized panels and the reflectorized logo of the railroad company are located on the side of each coal car. Atthe 

### timeof the accident, the train 

### was traveling approximately 27 

### milesper hour, and the van was going 50 milesper hour. A vehicle traveling 50 

### milesper hour from the 

### crest of the hillwould reach the crossing in about 12 seconds. Fifty seconds prior to the accident, the front of the locomotive was 1,850 feet from the van. The locomotivewas equipped with a 200,000 candlepower lightvisible at that distance, and therewas no impediments to 

### its visibility. The lightwas aimed atthe van until 34 seconds prior to the accident, when the locomotive and van passed each other. The van struck the thirty-fifth car from the Burlington Northern coal train caboose. There 

### were no skidmarks or other indications of evasive action. Most of the van was in the leftlane of traffic atthe 

### timeof impact. The investigating highway patrolman found seventeen empty beer cans and one empty bottle inand around the van. Dewey, the driver, consented toa blood sample a few hours after the accident. It revealed a blood-alcohol level of .16%.An expertwitness estimated Dewey's blood-alcohol level atthe 

### timeof the accident tobe .20 to 

### .21%. The presumptive level of intoxication inMontana 

### is 

## .lo%. Section 61-8-401 (3)

### (c)

## , MCA. As a resultof the accident, Penn losthis gallbladder, isparalized below the waist, and suffers neurological problems. Dewey received a broken hip, a collapsed lung and

a severe scalpwound. Kussler was killed. Penn raises nine assignments of error for review. We hold infavor of respondents on allthe assignments of

error. In his firstassignment of error, Penn contends that the DistrictCourt erred inpermitting the respondents to proceed on a theory of negligent entrustment. Penn asserts that inMontana negligent entrustmentmay only be used as a theory of recovery, not asa defense since it involves an application of imputed contributory negligence. Such a contention iswithout 

### merit. Here, respondents pleaded negligent entrustment as a type of contributory negligence,imputed toPenn asthe entrustor, not to the entrustee, Dewey. Respondents 

### were not trying to impute the negligent actsof the driver toPenn, thepassenger and owner of the

van. The Restatement (Second) of Torts supports negligent entrustment as a defense when used as a species of contributory negligence. The Restatement provides that an actor 

### is negligent if he allows a thirdparty to use an object under the actor's control when the actor knows, or has

reason toknow, of an unreasonable risk of harm to others. Restatement (Second) of Torts SS308, 390 (1965). The second assignment of error Penn asserts is that the DistrictCourt Instruction No. 25 failed to charge the jury properly on the elements of negligent entrustment. Penn, however, failed toobject to the instruction 

### attrial. The contention that an instruction does not state the 

### lawcannot be considered absent a proper objection attrial. Roberts Realty Corp. v. City of Great Falls (1972), 160Mont. 144, 500 P.2d 956. The third assignment of error asserted 

### is the District Court's failure toadmit a petition of the Rosebud County Commissioners and other documents concerning the warning devises atthe Koselka crossing. Penn maintains the absence of these evidentiary documents precluded him from establishing notice asan element of negligence and the necessary 

### state of mind for an award of punitive damages. Prior to trial, both parties moved - in limine toexclude certain documents including those atissue now. Atthe hearing on these motions, Penn agreed the documentary evidence

was unnecessary if the Stateand Burlington Northern would admit tothe date they received notice of the dangerousnature of the crossing. Although Penn stated that he wished topreserve hisposition regarding the admissibility of the documents, allparties entered into a stipulationregarding the date of notice. The stipulationwas before the jury, and Penn failed tooffer the petition orother relevant documents into evidence ormake any offerof proof attrial. The stipulationentered into by Penn forecloses a review of this issue. It 

### is improper to

### raise an issue upon appeal as toa question of law or factafter the parties have entered into a stipulation

### as to that law or fact. Oregon Automobile Insurance Company v. Watkins (1973), 264 Or. 464, 506 P.2d 179. The fourth assignment of error is that the 

### ~istrict Court erred inpermitting defense witness Van Schwartz-to testify attrial concerning hisobservations from an experiment. Penn contends Van Schwartz lacked the necessary qualifications to testify asan expertwitness and the experiment 

### was conducted under different conditions from those existing atthe 

### timeof the accident. Penn cannot assertVan Schwartz's lack of qualifications

as a ground forreversal since his objection on this ground

was not timely. Attrial, Penn objected totestimony concerning Van Schwartz's observations long before any such testimony was given. Hemade no objection once Van Schwartz began totestify about his observations. Sikorskiv. Olin (1977)

## , Mont. 

## , 568 P.2d 571, 34 St.Rep. 1042. Similarly, Penn cannot complain upon appeal that the experiment

was conducted under conditions different from those on the night of the accident since differing conditions was not aground for his objection attrial. Hayes v. J.M.S. Const. (1978) 

### -Mont. 

## , 579 P.2d 1225, 

### 35 St.Rep. 722. In his fifthand sixth assignments of error, Penn asserts it was error for the DistrictCourt torefuse to give plaintiff's InstructionNos. 24 and 31, which would have charged the jury that the State and Burlington Northern



### were negligent asa matter of law. Section 61-8-202, MCA requires the Department of Highways to adopt the regulations contained in the Manual on Traffic Control Devices. Penn maintains that inlight of this statutoryrequirement, it is clear that theManual has the force and effectof law. Thus, he contends that the Statewas negligent asa matter 

### of law infailing to signalize the Koselka crossing inaccordance with the Manual. Similarly, section 69-14-602, MCA imposes a duty on railroad companies to construct and maintain "good and safe" crossings. Penn asserts Burlington Northern was negligent 

### as a matter of law by violating section 69-14-602, MCA, inthat 

### it failed to install the types of warning devices required by theManual atextra-hazardous crossings. Penn's contentions arenot convincing. Before respondents can be charged with negligence inviolating the Manual, it must fikstbe determined: 

### (1)that the Koselka crossing

was extra-hazardous, and (2) that failure to install additional warning signalswas the proximate cause of Penn's injuries. These 

### were questions of factfor the jury since conflicting evidence was offered attrial. Additionally, inMontana, theManual does not have equal dignity with statutory law. There must be evidence that the Highway Commission directed the installation of additional warning signals before Burlington Northern can be charged with a duty tomake such installations.~illiams v. Maley (1967), 150Mont. 261, 434 P.2d 398. here is no evidence inthe record that the Highway Commission issued such a directive. Penn's seventh assignment of error is the District Court's failure tocharge the jury that the Public Service Commission was negligent asa matter of law. InApril 1973, the Rosebud County Commissioners presented 

### a petition to the Railroad Commission, now the Public Service Commission, requesting installation of warning devices atthe Koselka crossing. Penn contends the Public Service Commission's failure toissue any order whatsoever violated section 69- 14-622(2), MCA and constituted negligence per 

### se on the part of the State. We conclude it was not error to refuse plaintiff's InstructionNo. 32, the Public Service Commission instruction. Such an instruction would have injected an issue upon which neither side had offered any evidence. It isnot error to refuse an instruction that 

### isnot supported by the evidence admitted attrial. Por,terv. Crum-McKinnon Bldg. Co. (1963), 142Mont. 74, 381 P.2d 794. Furthermore, the Public Service Commission's failure toissue any order, even one refusing toorder installation of warning devices, has no relevance to causation inthis case. In his eighth assignment of error, Penn 

### asserts Court's InstructionNo. 26 concerning assumption of risk was incorrect

asa matter of law. Penn maintains the factsof this cause do not involve the type of negligent behavior towhich assumption of risk applies. Penn contends that assumption of risk applies only toa relationshipbetween a plaintiff and

a defendant, not between a plaintiff and a thirdparty. He further asserts that it is insufficient topoint tothenegligence of Dewey, the driver, and Penn's assumption of Dewey's negligent operation of his van. We cannot agree with Penn's contentions. Court's InstructionNo. 26 was adapted from Montana Jury Instruction Guide No. 13.00 and is a correct statement of Montana law as it existed atthe time this cause arose. See Hoffman v. Herzog (1971), 158Mont. 296, 491 P.2d 713. Conflicting evidence was admitted attrial as towhether Penn assumed the risk of his injuries by riding with an incompetent driver. Thus, the instruction was proper. Penn's ninth assignment of error is that the District Court erred indetermining that the respondents 

### were not liable for punitive damages. On October 11, 1978, the DistrictCourt entered an order striking Penn's claim against the State forpunitive damages on the ground that section 82-4324, RCM (1947) disallowed punitive damages against the State. Similarly, on the lastday of the trial, respondents objected toPenn calling a witness toestablish the financial condition of Burlington Northern asa measure by which punitive damages could be assessed. The District Court sustained the objection on the ground that there was insufficient evidence to submit the issue of punitive damages tothe jury. Penn contends these rulings, when combined with the DistrictCourt's failure toadmit into evidence the petition of the Rosebud County Commissioners, precluded Penn from pursuing thatportion of Penn's cause regarding an award of punitive damages. As previously noted, Penn entered into a stipulation regarding the petition of the Rosebud County Commissioners, and that stipulationwas before the jury. Having entered into the stipulation, Penn cannot now claim

### prejudice from his failure to have the petition admitted at trial. See Oregon Automobile Insurance Company, supra. The jury returned a verdict of no liability for actual damages on the part of the State and Burlington Northern. Such a verdict precludes an award of pufiitive damages, thus Penn suffered no harm from the District Court's ruling regarding punitive damages. Herde8gen v. Oxarart (1963), 

### 141Mont. 464, 378 P.2d 655. Having found no substance to Penn's assignments of error, the jury verdict in favor of the State and Burlington Northern is affirmed.

We concur:

Chief Justice

Justices

Mr. Justice John C. Sheehy deems himself disqualified in this case. Following oral argument herein, Justice Sheehy learned that one of his former associatesmay have represented a party having a collateral claim arising out of the incident on which this case is based. Since it appears that such relationship of attorney-client existed before hecame on the Court, Justice Sheehy has taken no part inthe decision oropinion herein.

Mr. Chief Justice Frank I. Haswell and Justice Daniel J. Shea concur intheresult.