file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

No. 98-014 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 111 

299 Mont. 348

999 P. 2d 985

JAMES A. MICKELSON, Individually, 

and VICKIE MICKELSON, Individually, 

and on Behalf of Her Minor Children,

ANDREW JAMES MICKELSON,

SCOTT ALLEN MICKELSON, and

TYLER JAMES MICKELSON, 

Plaintiffs and Appellants,

v.

MONTANA RAIL LINK, INC., 

Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District, 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (1 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

In and for the County of Missoula,

The Honorable Douglas G. Harkin, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John C. Hoyt (argued), Kurt M. Jackson (argued), Hoyt & Blewett, Great Falls, Montana

For Respondent:

Ronald B. MacDonald (argued), Darla J. Keck (argued), Datsopoulos, MacDonald & 

Lind, Missoula, Montana

For Amici:

Peter F. Habein, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana 

(Montana Defense Trial Lawyers); Patricia O'Brien Cotter, Cotter & Cotter, Great Falls, 

Montana (Montana Trial Lawyers Association)

Heard: January 28, 1999 

Submitted: February 1, 1999

Decided: April 28, 2000

Filed:

_________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (2 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶1 Jim and Vickie Mickelson along with their minor children (collectively referred to as 

"the Mickelsons") brought this action against Montana Rail Link, Inc. (MRL) to recover 

personal injury damages for the injuries Jim Mickelson (Jim) suffered in a railroad grade 

crossing accident and for loss of consortium damages suffered by Vickie Mickelson 

(Vickie) and their three minor children. The case went to trial in the District Court for the 

Fourth Judicial District, Missoula County, and the jury found in favor of MRL. The 

Mickelsons appeal. We affirm in part, reverse in part, and remand for further proceedings 

consistent with this opinion

¶2 The issues on appeal are:

¶ 3 1. Did the District Court err in allowing MRL to present evidence that Jim received 

workers' compensation benefits

¶4 2. Did the District Court err in instructing the jury as to the speed of trains? 

¶5 3. Did the District Court err in granting partial summary judgment regarding whether 

the train crew gave an adequate auditory warning?

¶6 4. Did the District Court err in precluding the Mickelsons' presentation of claims for 

relief which were not pled in their complaint or in their pretrial order?

¶7 5. Did the District Court err in precluding the presentation of the Mickelsons' claim that 

MRL had a duty to operate a train that was "plainly visible?" 

¶8.6 Did the District Court err in excluding the testimony of the Mickelsons' medical 

expert witnesses?

¶9 7. Did the District Court err in allowing rebuttal witnesses to testify to issues raised for 

the first time at trial and in excluding a rebuttal exhibit?

¶10 8. Did the District Court err in allowing certain expert opinion testimony as to a train 

crew's obligations as they approach a crossing?

¶11 9. Did the District Court err in concluding that the loss of consortium claims of Vickie 

and the three minor children should be reduced by the percentage of negligence 

attributable to Jim? 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (3 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶12 Because we reverse and remand for a new trial, we do not address issues 4, 6 and 7.

Factual and Procedural Background

¶13 Jim was severely injured when the vehicle he was operating collided with an MRL 

freight train at a railroad crossing near the Momont industrial area north of Missoula. The 

accident occurred on July 10, 1991, at approximately 4 a.m.

¶14 Earlier that same morning, a fire had broken out at the Gallagher Cedar Products Mill 

west of Missoula. The Missoula Rural Fire Department (MRFD) responded. Jim had been 

a paid firefighter for MRFD since March 4, 1982. Prior to that time, he had worked as a 

volunteer for MRFD for several years.

¶15At first, Jim videotaped the fire for fire investigation purposes, but because MRFD was 

short handed, Jim was re-assigned to fire suppression duties. There were no water 

hydrants near the fire, consequently, fire trucks known as "water tenders" had to be used to 

transport water from a remote water hydrant to the fire site. The Gallagher fire was so 

large that MRFD had to use four or five water tenders. Because Jim was an experienced 

water tender driver, he was assigned to Water Tender 20 (WT 20), one of MRFD's largest 

water tenders. 

¶16WT 20 held approximately 4,000 gallons of water and weighed close to 60,000 pounds 

when loaded. WT 20, like all of MRFD's emergency vehicles, was equipped with red 

overhead flashing emergency lights and a siren. The red flashing lights were highly visible 

at night and, when flashing, meant that WT 20 was responding to an emergency.

¶17 A quick-fill site was established for the water tenders at a high pressure water hydrant 

located north of the MRL railroad tracks in the Momont industrial area approximately 21⁄2 

miles east of the fire. The entrance to this area is located directly across from the entrance 

to the Missoula airport. This location was selected because of the high flow of water 

coming out of that hydrant. 

¶18 Jim and the other MRFD firefighters were familiar with the Momont hydrant and 

specific procedures had been developed over the years for loading water tenders at that 

hydrant. Jim, along with several other firefighters, testified at trial that they had been 

trained to fill the water tenders by crossing the railroad tracks and proceeding north on 

Momont Road, past the hydrant, while the water tenders were empty. They would then 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (4 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

turn around at the paved Federal Express parking lot, proceed to the hydrant to fill the 

water tenders, and then travel the 261 feet to the railroad crossing. The firefighters all 

testified that they used this procedure because the water tenders were extremely difficult 

to turn while loaded and the weight of the loaded water tenders would tear up the asphalt 

in the Federal Express parking lot. Jim has no specific memory of the accident or the 

events surrounding it, but he testified that he is sure that he would have positioned WT 20 

as he had hundreds of times in the past by turning WT 20 around prior to filling it.

¶19 The MRL train that struck WT 20 was traveling from Charlo to Missoula where the 

crew, engineer Dale Bettisworth and assistant engineer James Puyear, planned to 

disembark and go home for the night. The train had two locomotives, four loaded cars, and 

nine empty cars. The train was not carrying any perishable items, it was not on a schedule, 

and there was no hurry for it to reach Missoula. The train was equipped with a narrow 

beam headlight. The lead locomotive was also equipped with a standard whistle and bell 

and a single revolving yellow or amber light, located directly behind the headlight.

¶20 Bettisworth testified that, as the train traveled down Evaro Hill towards Missoula, he 

saw the fire raging at the Gallagher Mill. He also testified that he saw red flashing 

emergency lights in the area of the fire and traveling on Highway 10 to the south parallel 

to the railroad tracks.

¶21 William Brodsky, the president of MRL, testified that there were procedures in place 

to stop train traffic in emergency situations when notified by 9-1-1 or law enforcement 

personnel. MRFD, however, did not request that 9-1-1 inform MRL dispatch of the fire or 

the use of the hydrant across the tracks from the fire. Moreover, Paul Laisey, operations 

chief of MRFD, testified that, contrary to Brodsky's assertions of cooperation, in a 

situation sometime prior to the Gallagher fire when MRFD notified MRL that it would be 

necessary for MRFD to place fire hoses across MRL's tracks to get at a fire, MRL 

threatened to run over the hoses if they were not immediately removed.

¶22 The Momont crossing is regulated by crossbucks and a stop sign located 

approximately 17 feet and 26 feet respectively from the crossing. MRL has owned the 

railroad tracks at this crossing since 1987, thus it is MRL's responsibility to maintain the 

tracks. Testimony showed that MRL had not done any work on the tracks since July 1988. 

While some individuals testified at trial that the crossing was extremely rough and that 

heavy vehicles like WT 20 were required to proceed very slowly over the crossing so as 

not to incur damage, others testified that this was not the case.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (5 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶23 Bettisworth testified that as the train traveled east towards the Momont crossing, he 

could see the red flashing emergency lights on WT 20 from over a mile away and that he 

recognized that it was probably an emergency vehicle. He testified that when he first saw 

the red flashing lights they were approximately 1140 feet north of the crossing and that 

they were slowly moving south on Momont Road towards the crossing.

¶24 Nevertheless, the train continued to approach the crossing at a speed of 35 miles per 

hour, while WT 20 slowly approached the crossing on a collision course. Bettisworth 

testified that he sounded the train's bell and whistle from a quarter mile west of the 

crossing and that he assumed the vehicle would yield to the train. Thus, he did not attempt 

to slow or to stop the train until he realized the vehicle was not going to yield, but by then, 

it was too late to avoid the accident.

¶25 Jim suffered a severe traumatic brain injury as a result of the accident. His treating 

physician, Dr. Dean Ross, testified that Jim has numerous, severe and permanent 

limitations and disabilities as a result of his injuries. He has significant problems with 

memory, balance and coordination. And, he has severe problems with higher cognitive 

functioning in the area of abstract reasoning. Dr. Ross testified that, as a result of his 

disabilities, Jim will never be capable of driving a car or being competitively employed.

26 The Mickelsons brought this action on August 17, 1992, to recover personal injury 

damages for the injuries suffered by Jim and for loss of consortium damages suffered by 

Vickie and their three minor children. They contended in their complaint that the accident 

was caused by MRL's failure to operate its train at a reasonable and safe speed under the 

circumstances; failure to keep a proper lookout for persons exposed to danger upon its 

tracks; failure to give a proper warning of the approach of the train; and failure to take 

appropriate measures to avoid inflicting injury to Jim. The Mickelsons did not assert any 

claims against MRL in their complaint based on the condition of the Momont crossing or 

for any alleged obstructions at the crossing that would impair a motorist's view of an 

oncoming train.

¶27 On November 4, 1993, MRL filed a motion seeking summary judgment as to all 

allegations of excessive speed or failure to slow, use of strobe or oscillating lights or other 

attachments, and any allegations regarding the failure to use appropriate auditory warnings 

prior to impact. After reviewing the arguments made by the parties, the District Court 

granted partial summary judgment in favor of MRL as to the allegations relating to 

inadequate lighting and to inadequate auditory warnings, but allowed the Mickelsons to 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (6 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

proceed to trial on their claims of excessive speed or failure to slow.

¶28 On August 2, 1995, the Mickelsons filed a motion in limine to preclude MRL from 

mentioning or arguing at trial that Jim and Vickie were receiving workers' compensation 

benefits as a result of the injuries Jim received in the accident. The District Court, in a 

Memorandum and Order filed February 14, 1996, denied the Mickelsons' motion 

concluding that MRL should be allowed to show that Jim did not take reasonable steps to 

mitigate his damages by accepting a re-training employment position because he feared 

losing his workers' compensation benefits. 

¶29 In May 1996, the Mickelsons filed an Application for Writ of Supervisory Control 

with this Court seeking to rectify certain alleged errors made by the District Court in its 

rulings on various pretrial motions. These rulings included permitting MRL to introduce 

evidence of workers' compensation benefits; instructing the jury that the train crew had 

properly sounded the whistle and bell in compliance with Montana statutes; instructing the 

jury that any contributory negligence on the part of Jim would be imputed to reduce any 

loss of consortium damages awarded to Vickie and the children; and disallowing the 

introduction of any evidence concerning the locomotive's lights to rebut MRL's claim that 

the train was "plainly visible" to Jim. This Court entered an Order on July 9, 1996, 

denying the Mickelsons' application on the grounds that the petition failed to meet the 

appropriate standard for supervisory control.

¶30 In March 1997, the Mickelsons filed a "Reapplication" for Supervisory Control urging 

this Court to correct the District Court's rulings on the same four grounds as in the earlier 

application. The Mickelsons based their application on the revised standard for 

supervisory control which had been adopted subsequent to this Court's denial of their 

earlier application. See Plumb v. Fourth Jud. Dist. Court (1996), 279 Mont. 363, 927 P.2d 

1011. However, on May 29, 1997, this Court again denied the Mickelsons' application on 

the basis that the revised standard was the same as that employed to deny their earlier 

application.

¶31 The case proceeded to trial on September 2, 1997, before a twelve-person jury. At 

trial, counsel for MRL asked Dr. Jonathan Stone, one of the doctors that had examined 

Jim, whether it was his understanding that Jim was resisting supported employment as a 

result of his fear that he might jeopardize his workers' compensation benefits. Counsel for 

the Mickelsons objected to the reference to workers' compensation benefits, but that 

objection was overruled by the District Court.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (7 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶32 Thereafter, in an in-chambers conference, counsel for the Mickelsons moved for a 

mistrial because of the introduction of workers' compensation benefits into the trial. MRL 

argued that this evidence was admissible to show that Jim chose not to mitigate his 

damages and that he was actually malingering by not accepting a supported employment 

position. The District Court again concluded that MRL could show that Jim did not take 

reasonable steps to mitigate his damages by accepting a re-training employment position 

because he feared losing his workers' compensation benefits. Hence, the court denied the 

Mickelsons' motion for a mistrial and trial resumed with MRL making reference to 

workers' compensation benefits throughout the proceedings.

¶33 On September 25, 1997, the jury returned a verdict in favor of MRL. This appeal 

followed.

Issue 1.

¶34 Did the District Court err in allowing MRL to present evidence that Jim received 

workers' compensation benefits? 

¶35 This Court reviews evidentiary rulings for an abuse of discretion. A trial court has 

broad discretion to determine whether evidence is relevant and admissible. Absent a 

showing of an abuse of discretion, the trial court's determination will not be overturned. 

Baldauf v. Arrow Tank and Engineering, 1999 MT 81, ¶ 41, 294 Mont. 107, ¶ 41, 979 

P.2d 166, ¶ 41 (citing Vincelette v. Metropolitan Life Ins. Co., 1998 MT 259, ¶ 12, 291 

Mont. 261, ¶ 12, 968 P.2d 275, ¶ 12). 

¶36 We have repeatedly held that the introduction of evidence of workers' compensation 

benefits or other collateral source benefits constitutes prejudicial and reversible error 

requiring a new trial. Mydlarz v. Palmer/Duncan Construction Co. (1984), 209 Mont. 325, 

341, 682 P.2d 695, 703. See also Thomsen v. State, Dept. of Highways (1992), 253 Mont. 

460, 833 P.2d 1076 (in a personal injury action, admission of evidence concerning 

availability of medical and rehabilitation services for plaintiff from the Veterans 

Administration was error); Allers v. Willis (1982), 197 Mont. 499, 643 P.2d 592 (the fact 

that plaintiff, who was injured in an automobile accident, had a pending workers' 

compensation claim was inadmissible); Goggans v. Winkley (1972), 159 Mont. 85, 91, 495 

P.2d 594, 598 ("Injection of collateral matters involving transactions between others, 

which are in this case conjectural, is collateral inadmissible evidence under the collateral 

source doctrine.").

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (8 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶37 MRL argues that while collateral sources are generally excluded from evidence, the 

prohibition against collateral source evidence is not absolute. MRL contends that in 

Thomsen, this Court followed the California Supreme Court's reasoning that collateral 

source evidence is admissible if there is a persuasive showing that the evidence sought to 

be introduced is of substantial probative value. MRL claims that there was substantial 

probative value in this case to show that Jim failed to mitigate his damages and that the 

probative value of this evidence outweighed the prejudicial effect.

¶38 In Thomsen, this Court did note the California Supreme Court's statement regarding 

admissibility of collateral source evidence, however, contrary to MRL's contention, we did 

not follow that reasoning in Thomsen. Instead, we determined that the District Court in 

Thomsen erred in allowing the admission of the collateral source evidence and we 

remanded for a new trial. Furthermore, the California Supreme Court's statement 

regarding admissibility of collateral source evidence was worded far more strongly against 

the admission of that evidence than MRL suggests:

The potentially prejudicial impact of evidence that a personal injury plaintiff 

received collateral insurance payments varies little from case to case. Even with 

cautionary instructions, there is substantial danger that the jurors will take the 

evidence into account in assessing the damages to be awarded to an injured plaintiff. 

Thus, introduction of the evidence on a limited admissibility theory creates the 

danger of circumventing the salutary policies underlying the collateral source rule. 

Admission despite such ominous potential should be permitted only upon such 

persuasive showing that the evidence sought to be introduced is of substantial 

probative value. [Emphasis added.]

Thomsen, 253 Mont. at 463, 833 P.2d at 1078 (quoting Hrnjak v. Graymar, Inc. (Cal. 

1971), 484 P.2d 599, 604).

¶39 Additionally, this Court held in Mydlarz that it was reversible error for a district court 

to admit evidence that a plaintiff had received workers' compensation benefits. Mydlarz, 

209 Mont at 341, 682 P.2d at 703. The plaintiff in Mydlarz had filed a motion in limine to 

prevent the defendant from admitting such evidence. The District Court denied the motion 

and admitted the evidence, but instructed the jury not to use the evidence of workers' 

compensation benefits to reduce plaintiff's damages. Mydlarz, 209 Mont. at 333, 682 P.2d 

at 699.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (9 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶40 On appeal, the defendants in Mydlarz argued that the evidence of workers' 

compensation benefits was admissible to show the plaintiff's lack of motive to return to 

work. Mydlarz, 209 Mont. at 340, 682 P.2d at 703. We disagreed and held that "the 

prejudicial impact of allowing a jury to receive evidence of plaintiff's pending workers' 

compensation claim vastly outweighs the probative value of such evidence." Mydlarz, 209 

Mont. at 340-41, 682 P.2d at 703. 

¶41 Citing our prior decision in Allers v. Willis (1982), 197 Mont. 499, 643 P.2d 592, we 

ruled in Mydlarz that evidence of a workers' compensation claim is clearly inadmissible, 

and that admission of such evidence was reversible error and would require a new trial. 

Mydlarz, 209 Mont. at 341, 682 P.2d at 703. In reaching that conclusion, we quoted the 

following passage from Allers: 

Generally, it has been held to constitute error, requiring a reversal or new trial, to 

bring to the jury's attention the fact that the plaintiff in a personal injury or death 

action is entitled to workmen's compensation benefits. The courts have reasoned that 

such information would tend to prejudice the jury and influence their verdict, either 

as to liability or damages, as such information is ordinarily immaterial and 

irrelevant. 

Mydlarz, 209 Mont. at 341, 682 P.2d at 703 (quoting Allers, 197 Mont. at 503, 643 P.2d 

at 594-95; 77 A.L.R.2d 1156).

¶42 MRL contends that evidence of Jim's receipt of workers' compensation benefits was 

offered for the purpose of providing the jury with an understanding of why Jim chose not 

to return to work. MRL claims that Jim refused to mitigate his damages by obtaining 

gainful employment in order to preserve his workers' compensation benefits and that Jim 

was actually malingering by not accepting a supported employment position.

¶43 The Mickelsons argue on appeal that the District Court abused its discretion when it 

permitted MRL to introduce evidence that Jim was receiving workers' compensation 

benefits because there was no proof that the concepts of malingering or secondary gain 

applied to Jim. Thus, they argue that "the very premise for MRL's entire argument is 

erroneous and misleading." 

¶44 Dr. Stone, a board certified physical medicine rehabilitation specialist and Dr. Ross, a 

board certified physiatrist, each testified at trial that due to the injuries Jim sustained in the 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (10 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

accident, he is not capable of being gainfully or competitively employed. Dr. Ross had at 

one time suggested that Jim enter a supported employment program, however, Jim and 

Vickie decided against it. Contrary to MRL's contention that this was evidence of Jim's 

failure to take reasonable steps to mitigate his damages, Dr. Ross testified that the 

supported employment program was merely therapeutic and was not intended as a means 

for Jim to earn money.

¶45 Moreover, the potential loss of workers' compensation benefits was only one of the 

reasons Jim chose not accept supported employment. Dr. Ross testified that the 

Mickelsons had legitimate concerns about the benefit of supported employment for Jim 

because of his problems with incontinence and depression as well as concerns for Jim's 

safety. Dr. Ross testified that he was concerned that supported employment would have a 

negative effect on Jim's pride and self-esteem which would lead to further depression and 

problems. Since Vickie was able to accomplish in the home setting all of the therapeutic 

goals that supported employment was intended to achieve, the Mickelsons were able to 

avoid the problems and concerns associated with a supported employment program.

¶46 MRL contends that even if it was error to allow the evidence of workers' 

compensation benefits, that error was harmless since the jury did not find MRL negligent 

and thus that evidence did not impact on the amount of damages awarded. On the 

contrary, as we stated in Thomsen,

introduction of collateral source evidence may be much more damaging to a 

plaintiff's case than just affecting the jury's judgment regarding damages. We 

agree . . . that such evidence can have an impact upon a jury's verdict on the issue of 

liability, as well as damages.

Thomsen, 253 Mont. at 464, 833 P.2d at 1078.

¶47 Accordingly, we hold that the District Court erred in allowing MRL to present 

evidence that Jim was receiving workers' compensation benefits and we reverse and 

remand for a new trial.

Issue 2.

¶48 Did the District Court err in instructing the jury as to the speed of trains?

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (11 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶49 MRL first raised the issue of train speed when it submitted a motion for summary 

judgment arguing that the subject of train speed had been preempted by the United States 

Supreme Court's decision in CSX Transportation Inc. v. Easterwood (1993), 507 U.S. 658, 

113 S.Ct. 1732, 123 L.Ed.2d 387. However, the District Court denied MRL's motion on 

the basis that the holding in Easterwood provides that under the Federal Railroad Safety 

Act (FRSA), federal regulations adopted by the Secretary of Transportation preempt 

negligence claims only insofar as they assert that the train was traveling at excessive 

speed. The District Court determined that Easterwood did not bar suit for breach of related 

tort law duties, such as a duty to slow or stop a train to avoid a specific individual hazard. 

In making this determination, the District Court pointed to the Easterwood court's notation 

that "this case does not present, and [does] not address, the question of FRSA's preemptive effect on such related claims." Easterwood, 507 U.S. at 675 n.15, 113 S.Ct. at 

1743 n.15.

¶50 MRL renewed its motion for summary judgment again arguing federal preemption 

and that Montana law does not require trains to slow in order to avoid an accident. The 

District Court once again denied MRL's motion ruling that a negligence action based upon 

a state law duty to slow or stop a train to avoid a specific individual hazard is not 

preempted. Even so, when it was time to instruct the jury, the District Court instructed 

them as follows:

Under the laws governing the speed of trains, a train crew has no duty to slow a 

train until a reasonable and prudent train operator has reason to believe, based upon 

the circumstances present, that the operator of the motor vehicle will not yield to the 

train and there is a substantial risk of a collision.

Instruction No. 21. 

Montana law does not provide the driver of an emergency vehicle any special 

privilege in relation to railroad crossings. Emergency vehicle drivers must follow 

the requirements when approaching and crossing railroad crossing as any other 

vehicle driver.

Instruction No. 32.

¶51 A district court has discretion regarding the instructions it gives or refuses to give to a 

jury and we will not reverse a district court on the basis of its instructions absent an abuse 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (12 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

of discretion. Federated Mut. Ins. Co. v. Anderson, 1999 MT 288, ¶ 44, 297 Mont. 33 ¶ 

44, 991 P.2d 915, ¶ 44 (citing Fillinger v. Northwestern (1997), 283 Mont. 71, 76, 938 

P.2d 1347, 1350-51). In reviewing whether a particular jury instruction was properly given 

or refused, we consider the instruction in its entirety, as well as in connection with the 

other instructions given and with the evidence introduced at trial. Federated, ¶ 44. The 

party assigning error to a district court's instruction must show prejudice in order to 

prevail. Prejudice will not be found if the jury instructions in their entirety state the 

applicable law of the case. Federated, ¶ 44.

¶52 The Mickelsons argue that the District Court erred in giving this instruction on the 

speed of trains as the law in Montana has never been that a train can simply ignore a 

potential hazard at a railroad crossing. The Mickelsons contend that this is not only bad 

law, but bad public policy and that by giving this instruction the District Court effectively 

entered a directed verdict in favor of MRL.

¶53 In Runkle v. Burlington Northern (1980), 188 Mont. 286, 613 P.2d 982, this Court 

held that it was a jury question whether, under the circumstances known to the railroad 

before and at the time of the accident, the railroad itself should have reduced the speed of 

its trains over the crossing where the accident occurred. Runkle, 188 Mont. at 299-300, 

613 P.2d at 990.

Thus it may not be enough for the railroad to protect its crossing with a standard 

crossbuck, to operate a train within a speed limit or to blow the whistle and ring the 

bell. The jury is still permitted to determine whether the railroad exercised 

reasonable care and caution under the circumstances and conditions existing at the 

time of the accident. Whether a railroad is negligent in a particular manner, such as 

in failing to provide automatic crossing gates, oscillating headlights, flasher lights, 

or in failing to reduce its speed is a question of fact for the jury. [Emphasis added.]

Runkle, 188 Mont. at 300, 613 P.2d at 991 (citing De Elena v. Southern Pac. Co. (Ariz. 

1979), 592 P.2d 759, 762; Seaboard Coast Line R. Co. v. Buchman (Fla.Dist.Ct.App.2d 

Dist. 1978), 358 So.2d 836, 839-40).

¶54 MRL contends that all motor vehicles, including emergency vehicles, have a statutory 

obligation to stop at a railroad crossing:

(1) Whenever any person driving a vehicle approaches a railroad grade crossing 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (13 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

under any of the circumstances stated in this section, the driver of such vehicle shall 

stop within 50 feet but not less than 15 feet from the nearest rail of such railroad, 

and shall not proceed until he can do so safely. The foregoing requirements shall 

apply when: 

(a) a clearly visible electric or mechanical signal device gives warning of the 

immediate approach of a railroad train;

(b) a crossing gate is lowered or when a human flagman gives or continues to give a 

signal of the approach or passage of a railroad train;

(c) a railroad train approaching within approximately 1,500 feet of the highway 

crossing emits a signal audible from such distance and such railroad train, by reason 

of its speed or nearness to such crossing, is an immediate hazard;

(d) an approaching railroad train is plainly visible and is in hazardous proximity to 

such crossing.

Section 61-8-347, MCA. In addition, § 61-8-348, MCA, provides:

All vehicles to stop at certain railroad grade crossings. The department of 

transportation and local authorities may designate particularly dangerous highway 

grade crossings of railroads and erect stop signs at these crossings. When these stop 

signs are erected, the driver of a vehicle shall stop within 50 feet but not less than 15 

feet from the nearest rail of the railroad and shall proceed only upon exercising due 

care. [Emphasis added.]

MRL further contends that, while the driver of a vehicle is required to yield the right of 

way to authorized emergency vehicles under § 61-8-346, MCA, a train is not a vehicle as 

defined by § 61-1-103, MCA, thus the train crew had no obligation to yield the right of 

way to Jim. Instead, MRL argues that Jim should have yielded to the train pursuant to §§ 

61-8-347 and 348, MCA.

¶55 MRL further argues that accepting the Mickelsons' position that trains should slow or 

stop for emergency vehicles approaching railroad grade crossings would destroy the 

predictability necessary for the safe operation of trains and motor vehicles at railroad 

crossings. Emergency vehicle operators cannot be assumed to have the skill and training to 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (14 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

judge the speed, weight, length and stopping distance of trains. Trains cannot swerve out 

of the way, and even under the best of circumstances, certain trains may take over 4000 

feet to stop with full emergency braking. Consequently, MRL maintains that establishing a 

law that would abrogate the duty of an emergency vehicle to yield to a train "would invite 

compounded tragedy."

¶56 The Mickelsons argue that the existence of statutes governing the actions of motorists 

at railroad crossings does not eliminate a railroad's obligation, under Runkle, to operate its 

trains at a reasonable and prudent speed under the circumstances. The statutes quoted 

above were in effect in 1980 when Runkle was decided and they in no way dispense with a 

railroad's duties and obligations at a railroad crossing as set forth in Runkle.

¶57 The Mickelsons point out that the undisputed proof at trial showed that this train could 

have easily slowed or stopped to avoid the accident. Furthermore, the train carried no 

perishables and it was going to stop for the night in Missoula, only two miles away. The 

train had slowed to 20 miles per hour for the DeSmet crossing, and if it had remained at 

that speed rather than accelerating to 35 miles per hour, it would have arrived in Missoula 

only three minutes later. The Mickelsons maintain that the District Court's instruction 

regarding the speed of trains removed all of these circumstances as well as the 

circumstances of the emergency created by the fire, from the jury's consideration.

¶58 The Mickelsons' proposed instructions regarding the speed of trains stated that, 

pursuant to Montana law, as set forth in Runkle, MRL had a duty to slow or reduce the 

speed of its train if a reasonable and prudent person would have done so under the 

circumstances. The instructions given by the District Court in this case improperly 

removed the question of train speed from the jury's consideration. Instead of being 

permitted to deliberate on whether, given the circumstances, the train crew should have 

reduced speed to avoid a collision as required by Runkle, the jury was compelled to 

conclude that the crew did not have a duty to do anything more than they did. The District 

Court's instructions prevented the jury from deciding whether the facts and circumstances 

of this case constituted a "specific individual hazard." 

¶59 Accordingly, we hold that the District Court abused its discretion in instructing the 

jury on the speed of trains as the instruction did not state the applicable law of the case.

Issue 3.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (15 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶60 Did the District Court err in granting partial summary judgment regarding whether 

the train crew gave an adequate auditory warning?

¶61 Our standard of review in appeals from summary judgment rulings is de novo. Oliver 

v. Stimson Lumber Co., 1999 MT 328, ¶ 21, 297 Mont. 336, ¶ 21, 993 P.2d 11, ¶ 21 (citing

Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; 

Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785). When we review a 

district court's grant of summary judgment, we apply the same evaluation as the district 

court based on Rule 56, M.R.Civ.P. Oliver, ¶ 21 (citing Bruner v. Yellowstone County

(1995), 272 Mont. 261, 264, 900 P.2d 901, 903). We set forth our inquiry in Bruner as 

follows:

The movant must demonstrate that no genuine issues of material fact exist. Once 

this has been accomplished, the burden then shifts to the non-moving party to prove, 

by more than mere denial and speculation, that a genuine issue does exist. Having 

determined that genuine issues of fact do not exist, the court must then determine 

whether the moving party is entitled to judgment as a matter of law. We review the 

legal determinations made by a district court as to whether the court erred.

Oliver, ¶ 21 (quoting Bruner, 272 Mont. at 264-65, 900 P.2d at 903). 

¶62 Moreover, in a summary judgment proceeding, the evidence must be viewed in the 

light most favorable to the nonmoving party, and all reasonable inferences will be drawn 

therefrom in favor of the party opposing summary judgment. Oliver, ¶ 22 (citing Joyce v. 

Garnaas, 1999 MT, 170, ¶ 8, 295 Mont. 198, ¶ 8, 983 P.2d 369, ¶ 8). Consequently, we 

will view the evidence in the light most favorable to the Mickelsons and all reasonable 

inferences will be drawn in their favor.

¶63 In its order granting MRL's motion for summary judgment, the District Court ruled, as 

a matter of law, that the MRL train crew had properly sounded the train whistle and bell in 

accordance with Montana law, specifically § 69-14-562(7), MCA. Because Jim had no 

memory of the accident, the District Court held that the Mickelsons could not produce any 

specific facts that present a genuine issue worthy of trial.

¶64 The Mickelsons argue that summary judgment is inappropriate here because there 

were too many inconsistencies and credibility problems with the crew's version of the 

accident. See Morrow v. FBS Ins. Montana-Hoiness Labar (1988), 230 Mont. 262, 265, 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (16 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

749 P.2d 1073, 1075 ("where, as here, credibility, including that of the defendant, is 

crucial, summary judgment becomes improper and a trial indispensable."). The 

Mickelsons argue, in effect, that MRL never met its burden of proving that no genuine 

issues of material fact exist, thus the burden to prove otherwise never shifted to the 

Mickelsons.

¶65 In their brief opposing summary judgment, the Mickelsons point out that the train 

crew's version of events immediately preceding the accident is entirely inconsistent with 

Jim's version. Bettisworth and Puyear each testified in their depositions that they first 

noticed the flashing lights of the water tender when they were about two miles from the 

crossing. Puyear also testified that the flashing lights were amber, rather than red. 

Additionally, both Puyear and Bettisworth first identified the water tender as a fuel truck 

from the airport or a street sweeper. Puyear testified that he saw the vehicle pull away 

from where it was parked, travel north away from the crossing, make a u-turn, and then 

head south and proceed all the way down Momont road to the crossing. 

¶66 Jim, on the other hand, testified in his deposition that this version of events could not 

possibly be true. While Jim does not remember any specifics of the accident, he testified 

that as was his habit and training and contrary to the crew's testimony, he would have 

turned the water tender around prior to filling at the hydrant. Jim testified that he would 

have driven the water tender north over the crossing, past the hydrant to the Federal 

Express lot at the end of Momont road. He would then have turned the truck around, 

proceeded south on Momont road and parked the water tender next to the hydrant so that it 

was facing south toward the crossing while he filled it. Jim testified that, after filling the 

water tender, he would then have proceeded south a short distance to the crossing.

¶67 At trial, the District Court denied the Mickelsons' offered Instruction No. 17--failure 

to sound the whistle and bell constitutes negligence as a matter of law--and Instruction No. 

18--pursuant to Runkle, the whistle and bell must be able to be heard at the crossing. The 

court then instructed the jury that MRL had properly sounded the whistle and bell "in 

conformity with Montana law" and admonished counsel not to argue to the contrary.

¶68 The Mickelsons argue on appeal that the District Court's ruling on the whistle and bell 

issue compelled the jury to believe Bettisworth's and Puyear's versions of the accident 

even though Jim's testimony and the testimony of various MRFD firefighters provided the 

jury with credible evidence that MRL's version of the events leading up to the accident 

could not be true. The Mickelsons claim that MRL admits that there were factual and 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (17 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

credibility issues concerning the crew's story about how the accident occurred.

¶69 Since a witness false in one part of his or her testimony is to be distrusted in others, § 

26-1-303(3), MCA, the jury should have been allowed to disbelieve the crew's testimony 

that WT 20 must have turned around after filling at the hydrant rather than before, as was 

Jim's habit as testified to by Jim and by various MRFD firefighters. The jury then should 

have been allowed to distrust and reject the crew's story that the whistle and bell were 

properly sounded. Instead, the District Court's ruling compelled the jury to believe MRL's 

version of events, even though there was compelling evidence to the contrary. 

¶70 The District Court committed reversible error by preventing the jury from deciding 

crucial factual and credibility issues. See Easterwood v. CSX Transportation, Inc. (11th 

Cir. 1991), 933 F.2d 1548, 1560 n.14 (credibility determinations concerning whistle 

testimony are not to be made on a motion for summary judgment). See also Borden v. CSX 

Transportation, Inc. (M.D. Ala. 1993), 843 F.Supp. 1410, 1418 (issues of credibility 

concerning train whistle are properly left for the jury); Bowman v. Norfolk Southern 

Railway Co. (D.S.C. 1993), 832 F.Supp. 1014, 1021 (summary judgment on whistle issue 

denied because of disputed facts).

¶71 Consequently, viewing the evidence in the light most favorable to the party opposing 

summary judgment, the Mickelsons, and drawing all reasonable inferences in their favor 

as we are constrained to do, Oliver, ¶ 22, we cannot conclude that MRL met its burden of 

proving that no genuine issues of material fact existed.

¶72 Accordingly, we hold that the District Court erred in granting partial summary 

judgment regarding whether the train crew gave an adequate auditory warning and we 

reverse and remand for a new trial.

Issue 5. 

¶73Did the District Court err in precluding the presentation of the Mickelsons' claim that 

MRL had a duty to operate a train that was "plainly visible?"

¶74 It is undisputed that the MRL locomotive involved in this accident was equipped with 

a headlight consisting of two 200,000 candela white lights in compliance with 49 CFR § 

229.125(a) (1991). The lights were placed next to each other on the front of the 

locomotive so that they emitted a single narrow beam designed to illuminate a person at 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (18 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

least 800 feet ahead and in front of the headlight. 49 CFR § 229.125(a) (1991). In addition, 

the locomotive had a yellow or amber blinking light located directly behind the headlight. 

¶75 In their complaint, the Mickelsons alleged that MRL was liable for Jim's injuries for, 

among other things, failing to give a proper warning of the approach of the train. The 

Mickelsons argued that a single beam headlight, although not inadequate, is an ineffective 

warning device to motorists.

¶76 MRL moved for summary judgment on the issue of inadequacy of the headlight based 

upon the preemptive effect of the FRSA. The District Court granted MRL's motion ruling 

that if the light was in compliance with the FRSA, then the railroad complied with its duty 

to provide locomotive warning devices as a matter of law, regardless of the fact that the 

Mickelsons believe that this type of lighting is ineffective.

¶77 In addition, MRL filed a motion in limine requesting that the District Court preclude 

the mention at trial of additional lighting alternatives for the train. The District Court 

granted MRL's motion, ruling that the Mickelsons' arguments relating to additional 

lighting or alternative lighting is preempted by federal statute.

¶78 At trial, in the Mickelsons' case-in-chief, Dr. Bernard Abrams, the Mickelsons' expert 

witness on conspicuity, was allowed to testify that the locomotive headlight is an 

ineffective warning device for motorists and that a motorist would have a difficult time 

identifying a locomotive headlight from the clutter of background lights as in this case. 

Virginia Tipton, the Mickelsons' expert on railroad operations, was also allowed to testify 

that the locomotive headlight is not an adequate warning device for motorists.

¶79 During MRL's case-in-chief, Gary Wolf, MRL's expert on railway operations, testified 

that the locomotive would have been plainly visible to a motorist by "virtue of its speed, 

by virtue of its headlights and its yellow strobe light." Thereafter, when the Mickelsons' 

counsel attempted to question Jerry Purswell, MRL's expert specializing in illumination, 

on the effectiveness of the yellow light, MRL's counsel objected and an in-chambers 

conference was conducted. After listening to the arguments of counsel, the District Court 

sustained the objection. The court subsequently instructed the jury that:

Under Federal law all railroads are required to have one 200,000 candela headlamp 

on all locomotives. On July 10, 1991, Montana Rail Link locomotive # 116 was 

equipped with two 200,000 candela headlamps. You are instructed that as a matter 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (19 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

of law, Montana Rail Link met all of its Federal obligations as to locomotive 

lighting and may not be found negligent as a result of its locomotive lighting 

configuration. 

Instruction No. 27. 

¶80 On appeal, the Mickelsons argue that the District Court erred in precluding them from 

presenting testimony on the effectiveness of the locomotive's yellow blinking light. 

Relying on Herold v. Burlington Northern, Inc. (8th Cir. 1985), 761 F.2d 1241, the 

Mickelsons argue that since MRL voluntarily equipped the locomotive with the yellow 

blinking light, the Mickelsons should have been allowed to show that a pair of such lights, 

situated lower on the front of the locomotive, would have been more effective in providing 

a warning. The Mickelsons' reliance on Herold for this proposition is misplaced. 

¶81 In Herold, the driver of a motor vehicle and his wife, a passenger in the vehicle, sued 

the railroad for injuries suffered in a collision with one of their trains. The locomotive in 

that case had been equipped with an amber rotating beacon, but it had been removed for 

repairs. The Eighth Circuit Court of Appeals held that the state, through statute or 

common law, may not require the railroad to install or maintain amber beacons. However, 

"once any part or appurtenance is attached to a locomotive, the Boiler Inspection Act 

requires it be maintained in good repair at all times." Herold, 761 F.2d at 1246 (citing 45 

U.S.C. § 23).

¶82 The Mickelsons claim that, based on Herold, MRL had an obligation to make such 

additional lights "effective," and that once MRL made the decision to equip its locomotive 

with an additional warning light, it had the obligation to do so effectively and with due 

care. On the contrary, rather than requiring that the light be "effective," Herold mandates 

that the additional lights simply be maintained "in good operating condition." Herold, 761 

F.2d at 1246.

¶83 In Marshall v. Burlington Northern, Inc. (9th Cir. 1983), 720 F.2d 1149, 1152, the 

Ninth Circuit Court of Appeals held that

under the Boiler Inspection Act [45 U.S.C. § 23] the state may not impose liability 

for failure to install a part or attachment of a locomotive if it is "within the scope of 

the authority delegated to the [Secretary of Transportation]" to prescribe the same 

part or attachment.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (20 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

Moreover, the "failure to maintain" claim in Herold is entirely different from the claim 

that MRL is liable for failing to install a second yellow blinking light which the Secretary 

of Transportation has not seen fit to require. King v. Southern Pacific Transp. Co. (10th 

Cir. 1988), 855 F.2d 1485, 1489 (citing Marshall, 720 F.2d at 1152). The King court held 

that such "failure to install" claims have been rejected. King, 855 F.2d at 1489 (citations 

omitted). Thus, MRL may not be held liable to the Mickelsons for failing to install or 

reposition blinking lights on its locomotive so as to better alert motorists approaching a 

crossing of the train's presence.

¶84 While the District Court was correct in precluding the Mickelsons from presenting 

evidence relating to additional lighting or alternative lighting for the purpose of 

establishing liability on MRL's part because of Marshall and the preemptive effect of the 

FRSA, that is not to say that such evidence may not be introduced for other purposes.

¶85 The Montana Rules of Evidence demonstrate that in many different instances, 

evidence which may not be admissible for all purposes may nonetheless be admissible for 

some. See, for example, Rule 408, M.R.Evid. (evidence of offers of compromise must be 

excluded to prove liability, but may be offered for another purpose); Rule 410, M.R.Evid. 

(evidence of guilty pleas not admissible against the person who made the offer, but may be 

admissible for other purposes); Rule 411, M.R.Evid. (evidence that a person is insured 

against liability is not admissible on the issue of negligence, but may be admissible for 

other purposes).

¶86 Additionally, Rule 407, M.R.Evid., generally states that subsequent remedial 

measures are not admissible to prove negligence or culpable conduct, but may be admitted 

when offered for another purpose. This rule was applied in Runkle v. Burlington Northern

(1980), 188 Mont. 286, 613 P.2d 982, wherein plaintiffs sought to introduce evidence that 

after the crossing accident in question, the railroad installed automatic signals at the scene 

of the collision. In holding that evidence of subsequent remedial measures may be offered 

for purposes other than establishing liability, we noted:

In this case, experts testified for the railroad that the crossing was not extrahazardous. The fact that automatic signals were installed on the crossing after the 

accident would have been relevant for the purpose of impeachment as well as to 

show feasibility. It was prejudicial error to exclude this evidence. 

Runkle, 188 Mont. at 294, 613 P.2d at 987.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (21 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶87 Section 61-8-347, MCA, imposes certain requirements on drivers approaching a 

railroad grade crossing when "an approaching railroad train is plainly visible and is in 

hazardous proximity to such crossing." Based on this statute, MRL argues that Jim was 

negligent in failing to see the train which MRL asserts was "plainly visible." To support 

this affirmative defense, MRL offered the testimony of Wolf and Purswell who told the 

jury that the train was indeed plainly visible to Jim, in part because of its headlight and 

yellow blinking light. In particular, Wolf testified that the approaching train was "plainly 

visible" because of "its speed, by virtue of its headlights and its yellow strobe light."

¶88 The Mickelsons sought to present contrary evidence that the single yellow blinking 

light on the locomotive was masked behind the headlight and that if MRL wanted to make 

its train "plainly visible" at a railroad crossing at night, it should have placed two 

revolving yellow lights spaced some distance apart lower on the locomotive. While we 

disagree with the Mickelsons that alternative placement of the lighting has any relevance 

to whether the train was "plainly visible" to Jim on the night of the accident, we do agree 

that since MRL was permitted to allege and represent to the jury that its train was "plainly 

visible," in part because of its yellow blinking light, thereby triggering Jim's alleged duty 

to stop for the train, the Mickelsons were entitled to rebut and contradict MRL's position 

by showing that the single yellow blinking light located behind the locomotive's headlight 

was ineffective as a warning light.

¶89 The District Court erred in prohibiting the Mickelsons from presenting such testimony 

based on Marshall because the Ninth Circuit Court's pronouncements in Marshall are not 

violated by such an argument. Marshall provides that the state may not impose liability

upon the railroad for failure to install particular lighting devices on a train. Marshall, 720 

F.2d at 1152. In the case sub judice, the Mickelsons are not attempting to impose liability 

based on the effectiveness of the lighting configuration, rather, they are attempting to 

mitigate Jim's contributory negligence by rebutting MRL's contention that the train was 

plainly visible. Thus, the proscriptions of the Boiler Inspection Act and Marshall are not 

applicable. And, once experts were allowed to testify that the train was plainly visible, 

evidence to contradict that contention should have been admissible to rebut the contention 

that the train was so visible to Jim that he was negligent in failing to see it.

¶90 In Pitasi v. Stratton Corp. (2nd Cir. 1992), 968 F.2d 1558, the Second Circuit Court 

of Appeals determined that evidence which is not admissible to prove culpability may 

nonetheless be introduced to rebut an affirmative defense. The plaintiff in Pitasi was 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (22 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

rendered a quadriplegic when he fell while skiing on a slope that had been only partially 

closed off due to dangerous conditions. Subsequent to plaintiff's fall, the defendant ski 

area ordered its employees to place warning signs and ropes across all side entrances to 

that slope. Pitasi, 968 F.2d at 1560.

¶91 At trial, the defendant sought to prove that plaintiff was contributorily negligent and 

offered evidence to the effect that the dangerous conditions on the slope were so obvious 

and apparent, that warning signs or ropes were unnecessary. To rebut the contributory 

negligence evidence, plaintiff sought to introduce evidence of subsequent remedial 

measures. The court below refused to admit plaintiff's evidence and the jury returned a 

verdict for the defendant. Pitasi, 968 F.2d at 1560.

¶92 The Court of Appeals held that because plaintiff was unable to introduce evidence of 

subsequent remedial measures, it was impossible for him to rebut the defense of 

contributory negligence. The Court determined that the trial court's preclusion of this 

evidence effectively destroyed plaintiff's ability to impeach defendant's employees, who 

said that the danger was open and obvious. The Court concluded that the probative value 

of the evidence outweighed its prejudicial effect and that its exclusion constituted an abuse 

of discretion. Pitasi, 968 F.2d at 1561.

¶93 Similarly, in the case before us on appeal, MRL based its defense of comparative 

negligence on Jim's failure to see MRL's "plainly visible" train. MRL was permitted to 

offer testimony that the train was highly visible, in part because of its lighting 

configuration. The Mickelsons sought to refute that contention by offering testimony that 

the lighting configuration did not make the train plainly visible to approaching motorists. 

This evidence was not offered to impose liability upon MRL for failing to change its 

lighting configuration, but rather, to demonstrate that, contrary to MRL's experts, the 

lighting configuration did not make the train so "plainly visible" that Jim was 

comparatively negligent for failing to see it.

¶94 In denying the Mickelsons the right to rebut the evidence offered by MRL in support 

of its contention that Jim was comparatively negligent, the District Court essentially 

directed a verdict in favor of MRL on the issue of Jim's comparative negligence. 

Precluding the Mickelsons from rebutting the comparative negligence defense constituted 

an abuse of discretion, requiring remand and a new trial.

¶95 On remand, the jury should be instructed that while it may not consider MRL's failure 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (23 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

to equip its train with a particular lighting configuration as evidence of MRL's negligence 

or culpability, it may nonetheless consider such evidence in determining whether the 

plaintiff was comparatively negligent for failing to see a train which MRL contends was 

"plainly visible."

¶96 Accordingly, we hold that the District Court did not err in precluding the Mickelsons 

from presenting evidence to show that MRL was liable for failing to equip its train with a 

particular lighting configuration. However, we also hold that the District Court did err in 

precluding the Mickelsons from presenting evidence to refute MRL's contention that Jim 

was comparatively negligent in failing to see the train which MRL contends was "plainly 

visible."

Issue 8.

¶97 Did the District Court err in allowing certain expert opinion testimony as to a train 

crew's obligations as they approach a crossing?

¶98 As we stated earlier in this opinion, this Court reviews evidentiary rulings for an abuse 

of discretion. A trial court has broad discretion to determine whether evidence is relevant 

and admissible. Absent a showing of an abuse of discretion, the trial court's determination 

will not be overturned. Baldauf v. Arrow Tank and Engineering, 1999 MT 81, ¶ 41, 294 

Mont. 107, ¶ 41, 979 P.2d 166, ¶ 41 (citing Vincelette v. Metropolitan Life Ins. Co., 1998 

MT 259, ¶ 12, 291 Mont. 261, ¶ 12, 968 P.2d 275, ¶ 12). 

¶99 Prior to trial, the Mickelsons filed a motion in limine seeking to prevent MRL's 

witnesses from testifying as to "what the law is or should be or what the duties of 

motorists or railroads are at a railroad crossing in the state of Montana or that any such 

duties were violated or not violated." The District Court, relying on Heltborg v. Modern 

Machinery (1990), 244 Mont. 24, 795 P.2d 954, entered an order granting the Mickelsons' 

motion to the extent that "opinions about statutory or regulatory violations" would be 

excluded.

¶100 At trial, Bettisworth was permitted to testify that the responsibility of WT 20 was to 

stop at the Momont crossing and that because of that responsibility, Bettisworth felt he 

had no reciprocal responsibility, obligation or duty to slow or stop the train to avoid an 

accident. In addition, MRL's expert, Wolf, was allowed to testify as to how railroads 

"across the country" operate trains at railroad crossings and as to the obligations of 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (24 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

motorists at railroad crossings. The Mickelsons argue on appeal that by allowing such 

testimony, the District Court committed prejudicial, reversible error when it had already 

granted the Mickelsons' pretrial motion in limine on that subject.

¶101 The issue in Heltborg was whether the plaintiff's expert testimony invaded the 

province of the jury by making legal conclusions. The court in Heltborg considered Rule 

704, M.R.Evid., which provides:

Testimony in the form of an opinion or inference otherwise admissible is not 

objectionable because it embraces an ultimate issue to be decided by the trier of fact.

The court clarified the distinction between testimony on the ultimate factual issue and 

testimony on the ultimate legal issue in holding that "[c]learly an expert may testify to an 

ultimate issue of fact. . . ." Heltborg, 244 Mont. at 30-31, 795 P.2d at 958. Thus, although 

an expert may not state a legal conclusion or apply the law to the facts in an answer, an 

expert may properly testify to an ultimate issue of fact.

¶102 In Scofield v. Estate of Wood (1984), 211 Mont. 59, 62, 683 P.2d 1300, 1301-02, this 

Court held that a highway patrolman may testify as to the cause of an accident. Similarly, 

MRL's expert witnesses properly expressed opinions as to the cause of the accident in this 

case, including the obligations and duties Jim and the train crew had at the Momont 

crossing. MRL's expert, Wolf, testified that he was familiar with Montana law, although 

he did not discuss what the law was, and that the training of train crews included an 

expectation that vehicles had obligations to yield at regulated crossings. Wolf did not give 

an opinion on whether Jim or MRL violated a standard of practice. His testimony was 

directed to training and the interrelationship between regulation of vehicles at crossings 

and a train crew's expectations.

¶103 Accordingly, we hold that the District Court did not err in allowing certain expert 

opinion testimony as to a train crew's obligations as they approach a crossing.

Issue 9.

¶104 Did the District Court err in concluding that the loss of consortium claims of Vickie 

and the three minor children should be reduced by the percentage of negligence 

attributable to Jim?

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (25 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶105 The District Court ordered early in this case that any contributory negligence on the 

part of Jim could not be imputed to Vickie and the children in order to reduce their claims 

for loss of consortium. The court later reconsidered its order and held that the consortium 

claims could be reduced by the percentage of any contributory negligence attributable to 

Jim.

¶106 At trial, the Mickelsons proposed a jury instruction advising the jury that the 

consortium claims would not be reduced by any contributory negligence. The District 

Court refused this instruction and, instead, instructed the jury as follows:

Negligence on the part of plaintiff Jim Mickelson does not bar his recovery unless 

such negligence was greater than the negligence of the defendant MRL. However, 

the total amount of damages that plaintiff Jim Mickelson would otherwise be 

entitled to recover will be reduced by the court in proportion to the amount of 

negligence you attribute to plaintiff Jim Mickelson. 

Any damages awarded to plaintiff Vickie Mickelson and any damages awarded to 

the Mickelson children will also be reduced by any negligence attributable to 

plaintiff Jim Mickelson.

Instruction No. 41.

¶107 Nevertheless, the jury never reached the damages issue in their verdict because they 

found that MRL was not liable for Jim's injuries. Thus, the jury never attempted to 

apportion damages for any contributory negligence attributed to Jim either on Jim's 

personal injury claim or on the loss of consortium claim of Vickie and the children. 

¶108 The Mickelsons argue on appeal that it was error for the District Court to instruct the 

jury to reduce the consortium claim based on any negligence attributable to Jim because 

the law applicable at the time of this accident provided that any damages allowed shall be 

diminished "in the proportion to the amount of negligence attributable to the person 

recovering." Section 27-1-702, MCA (1987) (emphasis added). It is undisputed that 

Vickie and the children did not cause Jim's accident or injuries. Hence, the Mickelsons 

argue that under this statute, since negligence cannot be attributed to Vickie or the 

children, their awards for loss of consortium cannot be diminished.

¶109 The Eighth Circuit Court of Appeals came to the same conclusion in a case 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (26 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

interpreting a nearly identical provision of North Dakota law. In Herold v. Burlington 

Northern, Inc. (8th Cir. 1985), 761 F.2d 1241, 1249, the Court of Appeals determined that 

under North Dakota law "it is clear that a wife's claim for loss of consortium is an 

independent right, not contingent upon the rights or liabilities of her husband." Thus, the 

Court of Appeals concluded that the Supreme Court of North Dakota would not allow a 

loss of consortium award to be reduced by the other spouse's negligence. Herold, 761 F.2d 

at 1249.

¶110 MRL argues that Herold is distinguishable because Montana case law does not hold 

that a loss of consortium claim is an independent right. MRL, relying in part on Priest v. 

Taylor (1987), 227 Mont. 370, 379, 740 P.2d 648, 653, wherein we stated that a loss of 

consortium claim is "completely derivative" from the other spouse's claim, maintains that 

the separate and distinctive nature of consortium is that consortium is a cause of action for 

separate damages arising out of the spouse's or parent's injury. Thus, MRL argues that a 

loss of consortium claim is derivative in the sense that it arises out of the injury of the 

spouse and thus the comparative negligence of an injured spouse or child should likewise 

act to reduce or bar the loss of consortium claim.

¶111 MRL maintains that the District Court's jury instruction in this case is a logical 

progression of Montana case law. MRL notes that in Bain v. Gleason (1986), 223 Mont. 

442, 726 P.2d 1153, this Court made an extensive analysis of how consortium claims were 

to be handled in insurance cases under limits for "each person." We determined there that 

"a cause of action for consortium of the deprived spouse is separate and distinct from the 

claim of the injured spouse. . . ." Bain, 223 Mont. at 445, 726 P.2d at 1155. However, in 

addressing § 61-6-103, MCA, of the motor vehicle statutes, requiring coverage "against 

loss from the liability imposed by law for damages . . . subject to limits . . . [of] $25,000 

because of bodily injury to or death of one person in any one accident," we determined 

that the separate and distinct claim becomes one with the spouse's injury. Bain, 223 Mont. 

at 449-50, 726 P.2d at 1157.

¶112 Nevertheless, we do not find Bain helpful in resolving this issue as our decision in 

Bain turned on the language of the insurance policy regarding the definition of "bodily 

injury." Furthermore, as the Mickelsons' attorney suggested in oral argument before this 

Court, labeling a consortium claim "independent" or "derivative" does little to help decide 

the issue of whether the injured spouse's or parent's alleged contributory negligence should 

be imputed to the innocent child or spouse. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (27 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶113 Montana case law on this subject uses the terms "independent" and "derivative" 

almost interchangeably. In Johnson v. United States (D.Mont. 1980), 496 F.Supp. 597, 

601, the federal district court determined that "under Montana law, a husband or wife may 

bring an action for loss of consortium, which is a derivative claim, separate and distinct 

from the spouse's claim for injuries." See also Gunning v. General Motors Corp. (1989), 

239 Mont. 104, 107, 779 P.2d 64, 66 ("separate and distinct"); Priest, 227 Mont. at 379, 

740 P.2d at 653 ("independent and distinct" yet "completely derivative"); Bain, 223 Mont 

at 445, 726 P.2d at 1155 ("separate and distinct"); Keele v. St. Vincent Hospital & Health 

Care (1993), 258 Mont. 158, 162, 852 P.2d 574, 577 ("wholly derivative"). 

¶114 Consequently, the Mickelsons contend that the term "derivative" should be used only 

to describe the origin of a loss of consortium claim, whereas the terms "separate," 

"distinct," and "independent" should be used to characterize the nature and extent of the 

legal rights attendant to the claim. In other words, a loss of consortium claim is derivative 

to the extent that there has to be a cause of action against the defendant for liability before 

there can be any recovery on a loss of consortium claim. And, a loss of consortium claim 

is separate, distinct and independent because it can be brought by a wife without her 

husband and by children without their parents.

¶115 Other courts have ruled that for a variety of reasons, loss of consortium claims 

should not be reduced by a spouse's or parent's negligence. See Macon v. Seaward 

Construction Co., Inc. (1st Cir. 1977), 555 F.2d 1; Huber v. Hovey (Iowa 1993), 501 N.

W.2d 53; Brann v. Exeter Clinic, Inc. (N.H. 1985), 498 A.2d 334; Feltch v. General 

Rental Co. (Mass. 1981), 421 N.E.2d 67; Fuller v. Buhrow (Iowa 1989), 292 N.W.2d 672;

Morgan v. Lalumiere (Mass. App. Ct. 1986), 493 N.E.2d 206; Christie v. Maxwell (Wash.

App.Ct. 1985), 696 P.2d 1256; Lantis v. Condon (Cal.App.Ct.1979) 157 Cal.Rptr. 22.

¶116 In Lantis, the court determined that reducing the wife's award for loss of consortium 

by the percentage her husband was determined to be contributorily negligent,

force[s] a plaintiff, who was herself free from fault, to pay a penalty for the 

negligence of another. Reduced to its bare essentials, the only real effect of holding 

that [the wife's] action is "derivative" would be to resurrect under a different name 

the doctrine of imputed negligence a doctrine which has been thoroughly discredited 

by modern courts . . . and by legal scholars.

Lantis, 157 Cal.Rptr. at 26. Similarly, Montana law does not penalize innocent parties by 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (28 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

imputation of another's negligence. See Sumner v. Amacher (1968), 150 Mont. 544, 437 

P.2d 630 (holding that the negligence of a motor vehicle driver cannot be imputed to a 

passenger, even if the driver and passenger are married). Montana law further provides 

that neither a husband nor a wife is "answerable" for the acts of the other or liable for the 

debts contracted by the other. Section 40-2-106, MCA.

¶117 Under Montana's comparative negligence statute in effect at the time of this accident, 

any damages allowed "shall be diminished in the proportion to the amount of negligence 

attributable to the person recovering." Section 27-1-702, MCA (1987). As we noted 

earlier, the Eighth Circuit Court of Appeals interpreted a nearly identical provision of 

North Dakota law and concluded that a loss of consortium award could not be reduced by 

the other spouse's negligence. Herold, 761 F.2d at 1249. Based partly upon North Dakota 

judicial decisions holding that, among other things, the negligence of a driver cannot be 

imputed to his passenger, the Court of Appeals reasoned that under North Dakota law "it 

is clear that a wife's claim for loss of consortium is an independent right, not contingent 

upon the rights or liabilities of her husband." Herold, 761 F.2d at 1249. 

¶118 However, because Herold's negligence was not greater than that of the railroad's, the 

appellate court did not decide, in light of the statute, the effect on the consortium claim 

had the fact-finder determined that the plaintiff's negligence in causing his injuries 

exceeded that of the tortfeasor's. Presuming, on retrial, that MRL will again make the 

same claims of contributory negligence on Jim's part, this further question not resolved in 

Herold, may become an issue. Accordingly, we deem it appropriate to address that issue 

here.

¶119 With nearly identical statutory language in Montana regarding comparative 

negligence and similar judicial decisions regarding non-imputation of negligence, we 

agree with the Court of Appeals' determination in Herold that, where, as in Herold, the 

plaintiff's contributory negligence is determined to be not greater than the negligence of 

the tortfeasor's, then damages for loss of consortium being independent and, therefore, not 

contingent upon the rights or liabilities of a parent or spouse, such damages may not be 

reduced by the other spouse's negligence. But, since our comparative negligence statute 

states that "any damages allowed shall be diminished . . . ," we conclude that while a loss 

of consortium claim is independent as to damages, it is derivative as to liability. In other 

words, a defendant must be more liable for a plaintiff's injuries than the plaintiff before 

there can be any recovery whether it is on the plaintiff's personal injury claim or on a loss 

of consortium claim stemming from those injuries. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (29 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶120 For example, if plaintiff is determined to be 50% or less contributorily negligent for 

plaintiff's injuries, then, under our comparative negligence statute, a spouse or child could 

recover 100% of a loss of consortium claim. If, however, plaintiff is determined to be 51% 

or more contributorily negligent for plaintiff's injuries, then a spouse or child would 

recover nothing on a loss of consortium claim. 

¶121 We believe this approach--i.e., that liability for a consortium claim is derivative, 

whereas the right to damages for loss of consortium, once the claim is established, is 

independent--is not only compatible with (although a refinement of) our prior 

jurisprudence, but is, as well, consistent with the plain language of § 27-1-702, MCA. 

Moreover, we conclude that requiring a defendant to pay damages to a consortium 

claimant where the injured spouse's or child's recovery is barred under our comparative 

negligence statute, would create an anomaly in the area of tort law and that the legislature 

could not have intended such a result.

¶122 Accordingly, we hold that the District Court erred in concluding that the loss of 

consortium claims of Vickie and the three minor children should be reduced by the 

percentage of negligence attributable to Jim. Therefore, on retrial of this matter, any 

contributory negligence attributable to Jim cannot be imputed to Vickie and the children to 

reduce a loss of consortium award. However, if Jim is determined to be more liable than 

MRL, there can be no recovery for loss of consortium. 

¶123 Affirmed in part, reversed in part and remanded for further proceedings consistent 

with this opinion.

/S/ JAMES C. NELSON

We Concur:

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

Justice W. William Leaphart, dissenting in part and concurring in part..

¶124 I dissent on issue number three--the grant of partial summary judgment to MRL 

regarding whether the train crew gave an adequate auditory warning. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (30 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶125 Citing Morrow v. FBS Ins. Montana-Hoiness Labar (1988), 230 Mont. 262, 749 P.2d 

1073, the Court reasons that when credibility is crucial, summary judgment is 

inappropriate. In Morrow, the plaintiff claimed that FBS, a construction bonding agent, 

used its influence to prevent Fisher, a general contractor, from accepting Morrow's bid. 

Fisher argued that it denied Morrow's bid because another subcontractor, Star, made a 

lower bid than the other subcontractors, including Morrow. However, the Court in 

Morrow concluded that there was conflicting testimony regarding Fisher's reasons for 

accepting Star's bid and that "[t]he question presented by the contradictory statements goes 

to the heart of Morrow's claim, i.e., did FBS pressure Fisher into awarding the subcontract 

to Star?" Morrow, 230 Mont. at 266, 749 P.2d at 1075. Further, the Court determined that 

the "issues presented by the offered proof generally involve witness credibility." Morrow, 

230 Mont. at 266, 749 P.2d at 1075.

¶126 Morrow relied on two decisions, Durant v. Stahlin (Mich. 1965), 135 N.W.2d 392, 

and Arnstein v. Porter (2nd Cir. 1946), 154 F.2d 464, for the proposition that summary 

judgment is improper "where the credibility of an affiant may be crucial to decision of a 

material fact." Morrow, 230 Mont. at 265, 749 P.2d at 1075. The reliance of the Court 

both in Morrow and in the present case on Durant is misplaced. First, the Durant court 

affirmed the trial court's grant of summary judgment, determining that there was "no issue 

of fact." Durant, 135 N.W.2d at 395. Second, the Court in Morrow cited not to the 

majority opinion in Durant but rather to a concurring opinion that opined that "when 

resolution of a disputed fact, presented by conflicting affidavits or other proofs, depends 

upon the credibility of an affiant or witness, the trial judge engaged in an inquiry on 

motion for summary judgment must not usurp a trial jury's right . . . to determine the 

affiant's credibility." Durant, 135 N.W.2d at 398 (Souris, J. concurring). In Arnstein, the 

court reviewed a grant of summary judgment on a claim of copyright infringement. The 

trial court had depositions by the plaintiff and the defendant concerning whether the 

defendant had access to plaintiff's musical compositions. The trial court concluded that 

plaintiff's account was "fantastic" and not credible. Arnstein, 154 F.2d at 469. The 

Arnstein court concluded that on the critical question of access, plaintiff's credibility, even 

as to the improbable parts of his account, was for the jury to decide. The court in Arnstein

reasoned that if the jury disbelieves the defendant, the jury could infer that the defendant 

had access to the plaintiff's compositions and that "[i]t follows that, as credibility is 

unavoidably involved, a genuine issue of material fact presents itself." Arnstein, 154 F.2d 

at 469. Thus, in Arnstein and Morrow, there was conflicting evidence on material 

questions of fact. Compare Miller v. Herbert (1995), 272 Mont. 132, 138, 900 P.2d 273, 

276 (rejecting plaintiff's reliance on Morrow and concluding in Morrow that "the record 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (31 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

contained specific statements of fact contradicted by specific statements of fact of other 

witnesses").

¶127 Finally, the Court cites three decisions for the proposition that credibility 

determinations about train whistle blowing are not appropriate for summary judgment. See

Easterwood v. CSX Transp., Inc. (11th Cir. 1991), 933 F.2d 1548, 1560, n.14; Borden v. 

CSX Transp., Inc. (D. Ala. N.D. 1993), 843 F.Supp. 1410, 1418; and Bowman v. Norfolk 

Southern Ry. Co. (D. S.C. 1993), 832 F.Supp. 1014. In each one of these decisions, much 

like Arnstein and Morrow, there again was conflicting testimony on material questions of 

fact, that is, questions as to whether auditory warnings were given. For example, in 

Bowman, both parties moved for summary judgment on the plaintiff's claim for failure to 

sound the warning signals as required by law. The court denied plaintiff's motion because 

there was evidence that the bell was ringing continuously from the start of the train's trip 

that morning. Bowman, 832 F.Supp. at 1021. Similarly, defendant's motion for summary 

judgment on this issue was denied because a jury could conclude that the bell was in fact 

not operating at the time of the accident. "Whether the appropriate signal was given in this 

case is disputed and is, therefore, a question for the jury." Bowman, 832 F.2d at 1021. In 

denying summary judgment, the court was not relying upon lack of credibility as to an 

extraneous issue of fact. Rather it found that there was a dispute as to the material fact at 

issue in the motion; in other words, was the bell sounded. This is in contrast to the present 

case where the Mickelsons appear to have offered no evidence to controvert the crew's 

testimony that it gave a proper warning at the time of the accident.

¶128 The Court cites the principle, under § 26-1-303(3), MCA, that a witness false in one 

part of his or her testimony may be distrusted in others. The Court then notes that there 

were inconsistencies between the crew's testimony and Mickelson's deposition testimony 

regarding whether he turned around on Momont Road before he reloaded the truck and 

from this concludes that the jury should therefore be allowed to disbelieve the crew's 

testimony as to whether the whistle and bell were sounded. In doing so, the Court 

abandons the criterion of materiality. The sole issue before the Court on MRL's motion for 

partial summary judgment was whether the auditory warnings were given. There was no 

dispute in the evidence on that material fact. 

¶129 The conflicting evidence regarding whether Mickelson filled the firetruck's water 

tank before or after he turned around on Momont Road is not probative of whether the 

train crew gave adequate warning of its approach. Assuming that the crew's version of the 

turn around was not credible, it does not raise a dispute as to a fact material to the issue of 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (32 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

whether the whistle and bell were sounded. Moreover, neither Mickelson nor the Court 

has suggested any reason why the train crew might lie regarding when Mickelson filled 

the firetruck's water tank. As MRL did not deny having seen Mickelson's vehicle 

approaching the track, what he did prior to that juncture is irrelevant to the question of 

whether the crew sounded the whistle.

¶130 In Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 

91 L.Ed.2d 202, 211 (emphasis added) (citation omitted), the Court concluded:

substantive law will identify which facts are material. Only disputes over facts that 

might affect the outcome of the suit under the governing law will properly preclude 

the entry of summary judgment. Factual disputes that are irrelevant or unnecessary 

will not be counted.

¶131 The Court's holding could substantially diminish the burden of nonmoving parties in 

summary judgment proceedings. For a nonmoving party to defeat a motion for summary 

judgment when it offers no evidence on a material question of fact, that party would 

apparently need only to present evidence raising doubt about the credibility of a moving 

party's witness on a nonmaterial question of fact. For example, assume that a plaintiff 

injured in an intersection collision moves for summary judgment on liability and presents 

an uncontroverted affidavit that the defendant was speeding and did not have the right of 

way. Under the Court's approach in the present case, the defendant could avoid summary 

judgment by arguing that plaintiff was inconsistent in his testimony as to whether another 

vehicle went through the intersection ahead of defendant's. Thus, despite the fact that the 

existence of a third vehicle is totally immaterial to the question of defendant's liability, 

summary judgment would be properly denied because the defendant raised an issue as to 

the plaintiff's credibility on an extraneous fact.

¶132 Since there was no dispute as to the material fact at issue (whether, in the present 

case, the whistle and bell were sounded), I would affirm the District Court's grant of 

partial summary judgment. 

¶133 I specially concur as to issue number five--did the court err in granting summary 

judgment on the question of whether the train was "plainly visible." The Mickelsons, 

relying on Herold v. Burlington Northern, Inc. (8th Cir. 1985), 761 F.2d 1241, contended 

that they should have been allowed to show that MRL was liable to the Mickelsons for not 

having equipped the train with a configuration of lights that would have been more 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (33 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

effective than the configuration that the train in fact had. The MRL train in question had a 

headlight consisting of two 200,000 candela white lights and, in addition to what the law 

requires, a single blinking yellow light located directly behind the headlight. In particular, 

the Mickelsons sought to present evidence that a configuration with two yellow (amber) 

lights would have been more effective.

¶134 The Court rejects the Mickelsons' interpretation of Herold and holds, correctly so, 

that Herold merely requires that such equipment be properly maintained, not that it be 

effective. Having so held, the Court goes on to hold that, if MRL met all of its federally 

imposed lighting obligations, evidence of other more effective configurations is not 

admissible for purposes of establishing railroad liability. However, since the MRL 

contended that Mickelson was contributorily negligent under § 61-8-347, MCA, for 

having not seen a "plainly visible" train, the Court concludes that the Mickelsons should 

have been allowed to rebut that contention. The Court states:

While we disagree with the Mickelsons that alternative placement of the lighting has 

any relevance to whether the train was "plainly visible" to Jim on the night of the 

accident, we do agree that since MRL was permitted to allege and represent to the 

jury that its train was "plainly visible," in part because of its yellow blinking light, 

thereby triggering Jim's alleged duty to stop for the train, the Mickelsons were 

entitled to rebut and contradict MRL's position by showing that the single yellow 

blinking light located behind the locomotive's headlight was ineffective as a 

warning light. 

. . . . 

On remand, the jury should be instructed that while it may not consider MRL's 

failure to equip its train with a particular lighting configuration as evidence of 

MRL's negligence or culpability, it may nonetheless consider such evidence in 

determining whether the plaintiff was comparatively negligent for failing to see a 

train which MRL contends was "plainly visible." 

Accordingly, we hold that the District Court did not err in precluding the 

Mickelsons from presenting evidence to show that MRL was liable for failing to 

equip its train with a particular lighting configuration. However, we also hold that 

the District Court did err in precluding the Mickelsons from presenting evidence to 

refute MRL's contention that Jim was comparatively negligent in failing to see the 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (34 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

train which MRL contends was "plainly visible." [Emphasis added.]

¶135 It is unclear to me whether the Court, in allowing the Mickelsons to rebut with 

"such evidence," is saying that the Mickelsons can rebut with evidence of the 

ineffectiveness of the configuration in question, or whether our decision allows the 

Mickelsons to go further and present evidence as to what other configurations would 

have been more effective than the one used. I concur with the proposition that the 

Mickelsons be allowed an opportunity to rebut the testimony as to the "visibility" of 

the configuration used on the train in question. This can be accomplished through 

testimony from witnesses, either expert or lay, that the yellow light configured with 

the two white lights was not plainly visible. I do not agree that they should be able 

to rebut the visibility question with evidence of other alternative configurations that 

might have been more effective. The only configuration at issue is the one on the 

train in question in July of 1991. As the Court concedes, evidence of other 

configurations is not relevant as to whether the configuration at issue was plainly 

visible to Jim on the night in question. Furthermore, if the Mickelsons are allowed 

to present evidence of other configurations, the jury would assume, since such 

evidence has nothing to do with rebutting Jim's alleged comparative negligence, that 

it relates to the question of liability. In other words, in oblique fashion, we would be 

allowing the Mickelsons to circumvent the court's ruling in Herold and suggest to 

the jury that MRL is liable for not having equipped the train with a different lighting 

configuration than it did.

¶136 In conclusion, I concur with the holding that the Herold case does not stand for the 

proposition that when a railroad equips a train with extra equipment beyond that required 

by law, it must assure that that equipment is not only maintained, but effective. I concur 

that the Mickelsons can rebut the "visibility" issue with evidence that the lighting 

configuration on this train was not "plainly visible." In doing so, however, they may not 

present evidence of other configurations that might have been more effective. 

/S/ W. WILLIAM LEAPHART

Justice Karla M. Gray, concurring in part and dissenting in part. 

¶137 Except as specifically set forth herein, I agree with and join the Court's opinion.

¶138 I join Justice Leaphart's dissent on issue 3, relating to the District Court's grant of 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (35 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

partial summary judgment on the "adequate auditory warning" issue. Our standards 

regarding summary judgment have long been established and, in this regard, include a 

burden on the nonmoving part to raise a genuine issue of material fact once the moving 

party has established the absence of any such issue. As Justice Leaphart so cogently points 

out, the Court's opinion on this issue largely negates that burden traditionally borne by the 

nonmoving party by allowing the Mickelsons to avoid summary judgment via the raising 

of credibility issues on nonmaterial, nonrelevant matters.

¶139 On issue 5, I join in the Court's conclusion that the Mickelsons' reliance on Herold is 

misplaced. However, I dissent from the remainder of the Court's discussion of issue 5 and 

from its conclusion that, while the Mickelsons are precluded from presenting evidence 

relating to additional lighting or alternative lighting for the purposes of establishing 

MRL's liability, they may introduce such evidence for other purposes. My dissent is based 

on our long-established rule that we will not address either a matter raised for the first time 

on appeal or a party's change in legal theory. See, e.g., Unified Industries, Inc. v. Easley, 

1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961 P.2d 100, ¶ 15 (citation omitted). The 

underlying rationale for our rule is that it is unfair to hold a district court in error on a 

basis never presented to it. Easley, at ¶ 15. Here, Herold was the Mickelsons' sole 

argument on this issue before the District Court and, indeed, in its opening brief on appeal 

to this Court. I would resolve this issue on that basis alone and affirm the District Court.

¶140 Finally, I respectfully dissent from the Court's opinion on issue 2, which is whether 

the District Court erred in instructing the jury as to the speed of trains. My disagreements 

and concerns about the Court's analysis of this issue are several.

¶141 First, the Court does not specifically address whether the District Court's Instruction 

No. 32 was improper. That instruction essentially stated that the driver of any emergency 

vehicle has no special privilege with regard to railroad crossings under Montana law. 

Given the language of §§ 61-8-347 and 61-8-348, MCA, as set forth in the Court's 

opinion, I conclude that Instruction No. 32 is a proper statement of the law and that the 

District Court did not abuse its discretion in so instructing the jury.

¶142 In addition, it is my view that the Court's discussion of the trial court's Instruction 

No. 21 and Runkle is, at best, confusing. Indeed, I am unable to ascertain from the Court's 

opinion whether the District Court should have instructed on a purported duty by MRL to 

slow for this particular crossing even absent the existence of a specific, individual hazard 

at the time of the accident at issue in this case, or whether it should have instructed with 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (36 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

regard to a duty to slow only when faced with the specific conditions relating to the fire 

and the existence of emergency vehicles in the area of the railroad crossing at the time the 

train started down Evaro Hill.

¶143 This issue is more easily understood by addressing not just the instruction given by 

the District Court, but one of the Mickelsons' proposed instructions, which was refused, 

and about which the Mickelsons also assert error. The Mickelsons' Proposed Instruction 

#29 read as follows:

If, under the standard of ordinary care, a reasonable and prudent railroad would have 

braked the train to slow or reduce the speed of its train under the circumstances 

existing here, failure to do so may constitute negligence, although no ordinance or 

statute exists requiring such braking or slowing or reduction in speed. The railroad 

also has a duty to slow or stop its train to avoid a specific individualized hazard at a 

crossing if an ordinarily prudent railroad would have done so under the same or 

similar circumstances.

This proposed instruction contains two separate duties: the first, one of ordinary care 

relating to the circumstances existing at the time of the accident in question; and the 

second, one of ordinary care relating to a duty to avoid a specific, individualized hazard at 

a crossing.

¶144 With regard to the first duty set forth in the proposed instruction, I agree with the 

Court that, under Runkle, the instruction would have been appropriate. The problem, 

however, is that Easterwood--decided by the United States Supreme Court some 13 years 

after Runkle--effectively nullified the availability of a state tort general negligence claim 

regarding train speed by concluding that regulations adopted under the Federal Railroad 

Safety Act preempted such claims.

¶145 With regard to the second duty set forth in the Mickelsons' Proposed Instruction #29, 

namely, that MRL had a duty to slow or stop the train to avoid a specific individualized 

hazard at a crossing if an ordinarily prudent railroad would have done so under the 

circumstances, and the Court's related discussion of the "specific, individual hazard" 

portion of Easterwood, my concern is that neither the Court's opinion nor the Mickelsons' 

arguments are sufficiently clear to ascertain precisely what specific, individual hazard 

purportedly is at issue here. To the extent the Court is holding that the mere presence of 

emergency vehicles in the area near a crossing is sufficient to impose a duty on railroads 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (37 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

to slow their trains, I disagree. Such a state tort law general duty to slow is precluded by 

Easterwood and also fails to meet the "specific, individual hazard" standard as determined 

in post-Easterwood cases. The cases determining that such a hazard exists so as to avoid 

federal preemption relate to the avoidance of a specific collision, slowing to avoid striking 

a child on the railway and the like. See, e.g., Armstrong v. Atchison, Topeka & Santa Fe 

Ry. Co. (W.D. Tex. 1994), 844 F.Supp. 1152, 1153; Bashir v. National R.R. Passenger 

Corp. (S.D. Fla. 1996), 929 F.Supp. 404, 412. Indeed, the contention that the mere 

presence of emergency vehicles in the area is a specific, individual hazard sufficient to 

impose a duty to slow is similar to the "presence of fog and the nearby brick facility" 

contention rejected as constituting specific, individual hazards in Williams v. Alabama 

Great Southern Railroad Co. (E.D. La. 1994), WL 419863. As the Williams court stated, 

Easterwood's "footnote [15] means what it says--namely, if possible, a train should reduce 

its speed in order to avoid an imminent collision."

¶146 Finally, the Court's discussion regarding proof that the train "could have easily 

slowed or stopped to avoid the accident" is of no legal relevance. The issue is whether 

there was a duty to slow. I would conclude that the duty set forth in the District Court's 

Instruction No. 21--namely, that there was a duty to slow when it was reasonable to 

believe that the emergency vehicle would not yield and there was a substantial risk of 

collision--was a proper statement of the law under the Easterwood progeny addressing 

specific, individual hazards. See O'Bannon v. Union Pacific R. Co. (W.D. Mo. 1997), 960 

F.Supp. 1411, 1420 (citations omitted). Accordingly, I would affirm the District Court on 

issue 2. 

/S/ KARLA M. GRAY

Chief Justice J. A. Turnage joins in the concurring and dissenting opinions of Justice 

Leaphart and Justice Gray. 

/S/ J. A. TURNAGE

Justice Terry N. Trieweiler specially concurring and dissenting.

¶147 I concur with the majority's resolution of Issues numbered 1, 2, 3, and 8. I agree with 

the majority's decision not to address Issues numbered 4, 6, and 7. I specially concur with 

the majority's resolution of Issue No. 5; and I dissent from the majority's disposition of 

Issue No. 9.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (38 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶148 I concur with the majority's conclusion in part 5 of its opinion that the District Court 

erred by excluding evidence that the locomotive's lighting configuration was inadequate to 

make it "plainly visible." However, I disagree with and, therefore, dissent from the 

majority's conclusion that this case is distinguishable from Herold v. Burlington Northern, 

Inc. (8th Cir. 1985), 761 F.2d 1241, simply because the allegation in this case was that the 

amber rotating beacon was "ineffective," whereas in Herold the plaintiffs complained that 

a beacon, which had been installed but then removed, was not in "good operating 

condition." That distinction, in my opinion, makes no difference to the court's holding in 

Herold. In Herold, the plaintiffs were also struck at a railroad crossing. The court noted 

that Burlington Northern equipped its locomotives with amber rotating beacons even 

though it was not required to do so by federal law. Plaintiffs were allowed to prove in the 

district court that the amber rotating beacon had been removed for repairs. On appeal, the 

railroad contended that because it was not required to install an amber rotating beacon, it 

was error for the district court to allow evidence that it had been removed.

¶149 The Eighth Circuit Court of Appeals disagreed and observed:

[T]here is no issue whether Burlington Northern can be required to install additional 

warning lights. Burlington Northern had already made the decision to use a beacon 

and had, in fact, installed one on the locomotive involved in this collision. The 

district court ruled the beacon was an "appurtenance" of the locomotive within the 

meaning of the Boiler Inspection Act, 45 U.S.C. § 23. The Act "imposes upon the 

carrier an absolute and continuing duty to maintain the locomotive, and all parts and 

appurtenances thereof, in proper condition, and safe to operate in active service 

without unnecessary peril to life or limb. Southern Railway. Co. v. Lunsford, 297 U.

S. 398, 401, 56 S. Ct. 504, 506, 80 L. Ed. 740 (1936).

Herold, 761 F.2d at 1245 (citations omitted). In other words, the Eighth Circuit did not 

distinguish between an "appurtenance" which was "ineffective" and one which was simply 

not in "good operating condition" as the majority does. The Eighth Circuit simply held 

that once an appurtenance is installed on a locomotive, the Boiler Inspection Act requires 

that it be maintained in a manner that it does not cause "unnecessary peril to life or limb."

¶150 In this case the Plaintiffs alleged that the amber rotating light was not maintained in 

such a way as to avoid unnecessary peril to life or limb because of its placement. I see no 

practical difference between the allegation in this case and the allegation in Herold that a 

light which was not required in the first place had been removed.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (39 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

¶151 For these reasons, I dissent from the majority's conclusion that Herold is not 

applicable. Furthermore, I disagree with the majority's statement in ¶ 88 of its opinion that, 

" . . . we disagree with the Mickelsons that alternative placement of the lighting has any 

relevance to whether the train was "plainly visible" to Jim on the night of the 

accident, . . . ." That statement is inconsistent with the majority's conclusion in ¶ 96 that 

the District Court erred by precluding Mickelsons from refuting MRL's contention that the 

train was "plainly visible" in part because of the presence of a rotating yellow light. The 

only way to rebut the railroad's contention was to prove that the rotating yellow light 

contributed nothing to the train's conspicuity because of its placement. I do believe that the 

majority's ultimate conclusion is correct, but that the unnecessary and incorrect language 

in ¶ 88 will be confusing to the parties and possibly the District Court.

¶152 I also dissent from the majority's conclusion that the consortium claims of Vickie 

and Jim's children are barred if Jim was 50 percent or more negligent. That conclusion is 

totally inconsistent with the majority's first conclusion that the claims are not reduced by 

Jim's contributory negligence based on the language of the contributory negligence statute 

found at § 27-1-702, MCA. 

¶153 It makes no difference whether the consortium claims are derivative or independent, 

and it makes no difference whether other courts have held that a loss of consortium claim 

should be reduced by a spouse's or parent's negligence. In Montana, the language of the 

contributory negligence statute is dispositive. It simply provides that "damages allowed 

must be diminished in proportion to the percentage of fault attributable to the person 

recovering." Section 27-1-702, MCA (emphasis added.) In this case, the persons 

recovering damages for loss of consortium are Vickie and Jim's children. Both parties 

concede that they were not in any way at fault for Jim's injuries. Therefore, based on the 

plain language of § 27-1-702, MCA, their recovery, if any, cannot be diminished based on 

contributory fault.

¶154 The majority avoids the application of the plain language of the statute by creating 

an artificial distinction where none has previously existed. It concludes out of whole cloth 

that the consortium claims are independent as to damages but derivative as to liability. In 

doing so, the majority picks and chooses that part of the contributory negligence statute 

that it chooses to apply. It concludes that if Jim was not more than 50 percent at fault there 

can be no reduction but that if Jim was more than 50 percent at fault there can be no 

recovery. There is no basis in the plain language of the statute for making this artificial 

distinction. Courts may not rewrite statutes to achieve what the majority of the court 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (40 of 41)3/28/2007 1:28:00 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm

considers a more satisfactory result. See § 1-2-101, MCA. 

¶155 The majority's response is that if we apply the plain language of § 27-1-702, MCA, 

there would be "an anomaly in the area of tort law." Because the majority concludes the 

legislature could not have intended to do that which it plainly did, the majority has simply 

rewritten the statute to its satisfaction. I would not do so. If § 27-1-702, MCA creates an 

anomaly in the area of tort law, it is up to those interest groups who are adversely affected 

to bring it to the legislature's attention and it is up to the legislature to change the law 

accordingly.

¶156 For these reasons, I concur in part and dissent in part from the majority decision.

/S/ TERRY N. TRIEWEILER 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-014%20Opinion.htm (41 of 41)3/28/2007 1:28:00 PM