Dimich v. Northern Pac. Ry. Co.

• Decision Date: 16 December 1959
• Docket Number: No. 9827,9827
• Citation: 348 P.2d 786,136 Mont. 485
• Parties: Daniel W. DIMICH and Mike Dimich, Jr., Administrators of the Estate of Mike Dimich, Deceased, Plaintiffs and Respondents, v. NORTHERN PACIFIC RAILWAY COMPANY, a corporation, and Peter Dull, Defendants and Appellants.
• Court: Montana Supreme Court

Page 786

348 P.2d 786

136 Mont. 485

Daniel W. DIMICH and Mike Dimich, Jr., Administrators of the

Estate of Mike Dimich, Deceased, Plaintiffs and

Respondents, v. NORTHERN PACIFIC RAILWAY COMPANY, a corporation, and Peter

Dull, Defendants and Appellants.

No. 9827.

Supreme Court of Montana.

Dec. 16, 1959.

Rehearing Denied Feb. 4, 1960.

Coleman, Lamey & Crowley, Billings, for appellants. John C. Sheehy, Billings, argued orally.

J. H. McAlear, Red Lodge, for respondents.

BOTTOMLY, Justice.

This is an appeal by defendants from a judgment entered on a verdict in favor of plaintiff in a personal injury action and from an order denying defendants' motion for a new trial.

On the evening of November 12, 1953, at about the hour of 7:15 p. m., Mike Dimich, plaintiff herein, was riding as a passenger in an automobile traveling between the towns of Rockvale and Joliet, Montana. There were three people present in the automobile. Mike Dimich, the owner of the car, was in the front seat riding as a passenger; C. Natali was driving; and a third person, Frank V. Swenson, occupied the back seat. The automobile was proceeding on U. S. Highway 12, a well traveled, black top, oil surfaced highway. The ultimate destination of all persons in the car was Red Lodge, Montana.

Approximately one-half mile from the town of Joliet, U. S. Highway 12 crosses over a branch line of the Northern Pacific Railway, which branch line extends from Laurel, Montana, where it leaves the main line to Red Lodge, Montana, where the line terminates. After the branch line of the railway is crossed, the highway then curves and proceeds approximately parallel to the branch line of such railway and then passes through the town of Joliet. From the point where the highway turns to parallel the branch line, going through Joliet, the highway then runs in a straight line. There is, however, a grade from the intersection of the highway and the branch line up to approximately the limits of the town of Joliet. Within the town limits of Joliet a spur or switch track takes off from the branch line of the Northern Pacific Railway Company and extends across U. S. Highway 12, at a 27 degree angle, and then extends some 400 feet to a grain elevator which is located on this siding in Joliet. From the start of the straight stretch of highway after crossing the branch line of the Railway Company to a point approximately 150 feet from where the railroad spur track crosses U. S. Highway 12 within the town of Joliet the grade of the highway rises approximately 1.89 or 2 percent. From the point 150 feet from the spur crossing, the highway is level to and beyond the crossing. The spur itself, on November 12, 1953, was about four inches lower than the road surface, and is entirely unmarked. There were no warning signs proclaiming its existence in any manner or form and there were absolutely no warning devices of any type at the intersection crossing Highway 12.

At a point 125 feet from the spur crossing and between the spur crossing and the approaching Dimich car was a highway sign which read: 'Entering Joliet Speed Limit 25'. The city limits of the town of Joliet were located approximately at the point where this sign post was placed.

It was dark at the time the Dmich car was approaching Joliet and the car headlights were on. As the Dimich car approached Joliet a train of the Northern Pacific Railway Company, one of the defendants herein, consisting of a locomotive and two tenders, was engaged in spotting a box car upon the spur track at a point between the grain elevator and the intersection of the track with U. S. Highway 12.

As the car in which the plaintiff was riding approached the crest of the incline which was located some 150 feet from the point where the railroad spur crossed the highway, the locomotive was moving slowly across or already occupying a portion of the highway roadbed. At the intersection where the spur crossed the highway the Dimich car collided with the front end of the Northern Pacific locomotive. As a result of the collision, Mike Dimich suffered painful and permanently disabling injuries. This suit was commenced by Mike Dimich to recover for these injuries.

In his complaint, Mike Dimich alleged that the intersection of the railroad spur track and U. S. Highway 12 in regard to persons traveling U. S. Highway 12 in a direction approaching the town of Joliet from the town of Rockvale, Montana, was highly dangerous and unsafe; that the crossing was unlighted, and unmarked and without warning devices; that the spur was infrequently used, and such use of the crossing as was made by the Railway Company was unknown to the public generally and particularly unknown to the plaintiff; and that in addition to the above conditions, the intersection was particularly dangerous in that as one approached Joliet, as this plaintiff had approached the night of the accident, the lights of the town of Joliet and other lights were facing the plaintiff, the effect thereof was to obscure the intersection and to make the presence of trains thereon unnoticeable.

The plaintiff then specifically set out that the intersection was highly dangerous because it was unlighted; that the Railway Company failed to have any person give warning of the presence of the train on the crossing; failed to sound a bell or whistle to warn of the presence of a train on the crossing; and to have warning signals installed to indicate the presence of a train at the crossing. Also that no lights or flares were present as warnings; no lookout was kept for approaching automobiles; that the train was not kept under sufficient control to avoid collision with motor vehicles on the highway; and that the defendant negligently drove the locomotive into the portion of the highway being used by the automobile in which the plaintiff was riding.

At the trial, the evidence produced showed that the Dimich car was proceeding up the incline toward Joliet at a speed not in excess of 55 miles per hour, the legal maximum speed at that time of night for this highway; that at a point 1,150 feet from the intersection where the collision occurred the Dimich automobile was 18.9 feet lower than the level of the intersection; that at a point approximately 160 feet from the intersection the driver Natali evidently saw something and commenced to apply the brakes on the automobile; that the brakes were applied with such force that the wheels locked and the tires were dragged on the surface of the highway; that when the brakes were applied the Dimich car was in its own lane of the highway; that after the collision between the car and the locomotive, the car was pushed some 11 feet along the same direction the train was moving; that the plaintiff did not hear any bells or whistles from the train before the impact and that both he and the driver of the automobile did not see any lights on the train. The evidence produced at the trial also showed that the crossing was unmarked and was not often used except in the fall when grain was being loaded from the elevator located along the spur track; and that the plaintiff knew the track existed but had never himself seen it in use.

The employees of the railway testified that they were, just prior to the collision, in the process of dropping off a freight car; that the car was to be placed between the elevator and the point where the spur track intersected Highway 12; that when the car was being dropped off, the locomotive was headed in the direction of the branch line and extended into the intersection; and that the locomotive was stopped, the lights were on, the bell was ringing and the whistle was blowing. They testified they saw the car approach, blew a warning whistle and the car proceeded on and collided with the front end of the locomotive.

After trial to a jury, a verdict was rendered for the plaintiff. From the judgment entered on such verdict and the trial court's order denying a new trial, the defendants brought this appeal.

On appeal some twenty-six specifications of error are set out which appellants group into five issues of harmful error occurring in the trial of this action. We will review these asserted errors in the order in which they are raised by appellants.

First, appellants contend that this was an ordinary country crossing, common to the State of Montana, and was not extra hazardous. In this respect, appellants contend the district court committed error when it gave the following instruction to the jury:

'The Court instructs the Jury that if you believe from a preponderance of the evidence that the railroad crossing, which was the scene of the collision in question, was more than ordinarily dangerous to persons traveling upon the highway over such crossing, by reason of the surrounding facts and circumstances shown to exist at the time of the collision, then it was the duty of the defendants, in running the train over said crossing, to provide such signals as were reasonably necessary to give notice to travelers on the highway of the approach or presence of the train on said crossing; and if defendants failed to provide such signals as were reasonably necessary at said crossing, under the circumstances existing at the time of the collision, and if you further find that by reason of such failure of the defendants the plaintiff received the injuries complained of, and that he did not help to cause or bring about his injuries by negligence on his part; and you further find that the sole, proximate cause of his injuries was not the negligence of the driver of the car, which plaintiff owned and in which he was riding, then your verdict should be for the plaintiff and against the defendants.'

It is the position of the appellants that this instruction should never have been given since the facts and circumstances to support it were not present in this case. The appellants contend that the instruction is confusing and that the actual facts and...