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: 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Appellant Penn brought a cause in the District Court, 

Sixteenth Judicial District, Rosebud County, to recover 

damages for injuries suffered in an automobile-train accident. 

Penn appeals from a jury verdict in favor of respondents, 

Burlington Northern, Inc. and the State of Montana. 

We note that this cause arose before the Montana comparative negligence statute, section 27-1-702, MCA, took 

effect. Consequently, any contributory negligence by Penn 

that proximately caused his injuries would bar his recovery 

of damages from the State and Burlington Northern. Dunham 

v. Southside National Bank (1976), 169 Mont. 466, 548 P.2d 

1383; DeVerniero v. Eby (1972), 159 Mont. 146, 496 P.2d 290. 

In June 1975, Penn was working as a pipefitter in Colstrip, Montana. On June 11, 1975, Penn decided to drive to 

Miles City, Montana after work to purchase new tires for his 

1975 Ford van. Jerry Dewey and Martin Kussler, friends of 

appellant, went along for the ride. The trip to Miles City 

was uneventful. After the new tires were put on ~enn's van, 

the three men purchased a six pack of beer for the road and 

set out on the return trip to Colstrip. At approximately 

8:30 p.m., the three men stopped for dinner at the Gausthauf 

Bar in Forsyth, Montana. After dinner of beer and pizza, 

Dewey and Kussler began playing pool and Penn went to a 

friend's home to sleep. Approximately one hour later, Penn 

was awakened by friends who suggested that he return to the 

Gausthauf to join Dewey and Kussler. Penn returned to the 

Gausthauf. 
At an undetermined time, Penn left the Gausthauf to 

sleep in his van. Dewey and Kussler remained in the Gausthauf drinking beer and playing pool. Later, Kussler joined 

Penn in the van. At approximately 1:30 a.m., Dewey returned 

to the van. Dewey began driving back to Colstrip with Penn 

and Kussler asleep in the back of the van. 

Dewey testified that as a 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 in question. 

Penn has no recollection of any events from the time he 

arrived at the Gausthauf until he awoke in the hospital 

several days after the accident. 

The accident occurred south of Forsyth on Highway 315 

at the Koselka crossing, where the railroad track parallels 

the road before crossing it at a sharp angle. The crossing 

itself is located at a creek bottom and is visible from the 

crest of a hill 879 feet north of the crossing. There is a 

drop of about 25 feet in altitude 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 at the 

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. 

At the time of the accident, the train was traveling 

approximately 27 miles per hour, and the van was going 50 

miles per hour. A vehicle traveling 50 miles per hour from 

the crest of the hill would 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 locomotive 
was equipped with a 200,000 candlepower light visible at 

that distance, and there was no impediments to its visibility. 

The light was aimed at the 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 skid marks or 

other indications of evasive action. Most of the van was in 

the left lane of traffic at the time of impact. 

The investigating highway patrolman found seventeen empty 

beer cans and one empty bottle in and around the van. 

Dewey, the driver, consented to a blood sample a few hours 

after the accident. It revealed a blood-alcohol level of 

.16%. An expert witness estimated Dewey's blood-alcohol 

level at the time of the accident to be .20 to .21%. The 

presumptive level of intoxication in Montana is .lo%. 

Section 61-8-401 (3) (c) , MCA. 

As a result of the accident, Penn lost his gall bladder, 

is paralized below the waist, and suffers neurological 

problems. Dewey received a broken hip, a collapsed lung and 

a severe scalp wound. Kussler was killed. 

Penn raises nine assignments of error for review. We 

hold in favor of respondents on all the assignments of 

error. 

In his first assignment of error, Penn contends that 

the District Court erred in permitting the respondents to 

proceed on a theory of negligent entrustment. Penn asserts 

that in Montana negligent entrustment may only be used as a 

theory of recovery, not as a defense since it involves an 

application of imputed contributory negligence. Such a 

contention is without merit. Here, respondents pleaded 

negligent entrustment as a type of contributory negligence, 
imputed to Penn as the entrustor, not to the entrustee, 

Dewey. Respondents were not trying to impute the negligent 

acts of the driver to Penn, the passenger 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 third party to use an object 

under the actor's control when the actor knows, or has 

reason to know, 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 

District Court Instruction No. 25 failed to charge the jury 

properly on the elements of negligent entrustment. Penn, 

however, failed to object to the instruction at trial. The 

contention that an instruction does not state the law cannot 

be considered absent a proper objection at trial. Roberts 

Realty Corp. v. City of Great Falls (1972), 160 Mont. 144, 

500 P.2d 956. 

The third assignment of error asserted is the District 

Court's failure to admit a petition of the Rosebud County 

Commissioners and other documents concerning the warning 

devises at the Koselka crossing. Penn maintains the absence 

of these evidentiary documents precluded him from establishing notice as an element of negligence and the necessary 

state of mind for an award of punitive damages. 

Prior to trial, both parties moved - in limine to exclude 

certain documents including those at issue now. At the 

hearing on these motions, Penn agreed the documentary evidence 

was unnecessary if the State and Burlington Northern would 

admit to the date they received notice of the dangerous 
nature of the crossing. Although Penn stated that he wished 

to preserve his position regarding the admissibility of the 

documents, all parties entered into a stipulation regarding 

the date of notice. The stipulation was before the jury, and 

Penn failed to offer the petition or other relevant documents 

into evidence or make any offer of proof at trial. 

The stipulation entered into by Penn forecloses a 

review of this issue. It is improper to raise an issue upon 

appeal as to a question of law or fact after 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 in permitting defense witness Van Schwartz- to 

testify at trial concerning his observations from an experiment. Penn contends Van Schwartz lacked the necessary 

qualifications to testify as an expert witness and the 

experiment was conducted under different conditions from 

those existing at the time of the accident. 

Penn cannot assert Van Schwartz's lack of qualifications 

as a ground for reversal since his objection on this ground 

was not timely. At trial, Penn objected to testimony concerning Van Schwartz's observations long before any such 

testimony was given. He made no objection once Van Schwartz 

began to testify about his observations. Sikorski v. 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 a 
ground for his objection at trial. Hayes v. J.M.S. Const. 

(1978) - Mont. , 579 P.2d 1225, 35 St.Rep. 722. 

In his fifth and sixth assignments of error, Penn 

asserts it was error for the District Court to refuse to 

give plaintiff's Instruction Nos. 24 and 31, which would 

have charged the jury that the State and Burlington Northern 

were negligent as a 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 in light of 

this statutory requirement, it is clear that the Manual has 

the force and effect of law. Thus, he contends that the 

State was negligent as a matter of law in failing to signalize the Koselka crossing in accordance 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, in that it 

failed to install the types of warning devices required by 

the Manual at extra-hazardous crossings. 

Penn's contentions are not convincing. Before respondents can be charged with negligence in violating the Manual, 

it must fikst be determined: (1) that the Koselka crossing 

was extra-hazardous, and (2) that failure to install additional 

warning signals was the proximate cause of Penn's injuries. 

These were questions of fact for the jury since conflicting 

evidence was offered at trial. Additionally, in Montana, 

the Manual 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 to make such installations. 
~illiams v. Maley (1967), 150 Mont. 261, 434 P.2d 398. 

 here is no evidence in the record that the Highway Commission issued such a directive. 

Penn's seventh assignment of error is the District 

Court's failure to charge the jury that the Public Service 

Commission was negligent as a matter of law. In April 1973, 

the Rosebud County Commissioners presented a petition to the 

Railroad Commission, now the Public Service Commission, 

requesting installation of warning devices at the Koselka 

crossing. Penn contends the Public Service Commission's 

failure to issue 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 

Instruction No. 32, the Public Service Commission instruction. 

Such an instruction would have injected an issue upon which 

neither side had offered any evidence. It is not error to 

refuse an instruction that is not supported by the evidence 

admitted at trial. Por,ter v. Crum-McKinnon Bldg. Co. (1963), 

142 Mont. 74, 381 P.2d 794. Furthermore, the Public Service 

Commission's failure to issue any order, even one refusing 

to order installation of warning devices, has no relevance 

to causation in this case. 

In his eighth assignment of error, Penn asserts Court's 

Instruction No. 26 concerning assumption of risk was incorrect 

as a matter of law. Penn maintains the facts of this cause 

do not involve the type of negligent behavior to which assumption of risk applies. Penn contends that assumption of 

risk applies only to a relationship between a plaintiff and 

a defendant, not between a plaintiff and a third party. He 

further asserts that it is insufficient to point to the 
negligence 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 

Instruction No. 26 was adapted from Montana Jury Instruction 

Guide No. 13.00 and is a correct statement of Montana law as 

it existed at the time this cause arose. See Hoffman v. 

Herzog (1971), 158 Mont. 296, 491 P.2d 713. Conflicting 

evidence was admitted at trial as to whether 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 in determining that the respondents were not 

liable for punitive damages. On October 11, 1978, the 

District Court entered an order striking Penn's claim against 

the State for punitive damages on the ground that section 

82-4324, RCM (1947) disallowed punitive damages against the 

State. 

Similarly, on the last day of the trial, respondents 

objected to Penn calling a witness to establish the financial 

condition of Burlington Northern as a 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 to the jury. 

Penn contends these rulings, when combined with the 

District Court's failure to admit into evidence the petition 

of the Rosebud County Commissioners, precluded Penn from 

pursuing that portion 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 stipulation was 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), 

141 Mont. 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 associates may 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 he 
came on the Court, Justice Sheehy has taken no part in the 

decision or opinion herein. 

Mr. Chief Justice Frank I. Haswell and Justice Daniel 

J. Shea concur in the result.