Monforton v. Northern Pac. Ry. Co.
Citation | 138 Mont. 191,355 P.2d 501 |
Decision Date | 11 August 1960 |
Docket Number | No. 10048,10048 |
Parties | Ernest MONFORTON, Plaintiff and Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, and Henry Morris, Defendants and Appellants. |
Court | United States State Supreme Court of Montana |
Coleman, Lamey & Crowley, Billings, Dan R. Lovelace, Bozeman, for appellants.
Bruce R. O'Toole, Billings, argued orally for appellants.
H. A. Bolinger, Jr., Douglas R. Drysdale, Bozeman, for respondent.
H. A. Bolinger, Jr., Bozeman, for respondent.
H. B. HOFFMAN, District Judge (sitting in place of BOTTOMLY, J.).
This is an appeal by defendants from a judgment of the district court of the eighteenth judicial district entered in favor of the plaintiff on a complaint to recover on two causes of action, one for personal injuries, the other for damages to the truck which plaintiff was driving southward on a public highway one mile north of Belgrade, in Gallatin County, where a passenger train proceeding southeasterly crossed the highway and collided with the truck when it started to cross the railway track.
The respondent and his witnesses produced evidence of appellants' failure of the engineer of the diesel engine drawing the train to blow a whistle or ring a bell for the road crossing. The usual 'railroad crossing' signs had been erected and were in place. It is conceded that this evidence of negligence on the part of appellants is sufficient to predicate actionable negligence against the appellants. Defendant, Henry Morris, was the engineer.
The physical facts are quite easily illustrated. The collision occurred on Dry Creek Road one mile north of Belgrade. The road runs due north and south, entering Belgrade from the north. Let the point of collision on the highway be marked A. The railway track crosses the highway, for practical purposes, on a straight line running northwesterly and southeasterly through point A, at an angle of thirty or thirty-six degrees between the railroad and Dry Creek Road. Slightly less than one mile north of A, Dry Creek Road meets another public highway running straight east and west. Let the point of intersection here be marked B. Respondent drove his empty, 1952, 1 1/2 ton G.M.C. truck, equipped with a stock rack, westerly to point B, made a left turn and started south on Dry Creek Road, then graveled, level, and dry all the way. Weather and visibility was clear. Admittedly, he maintained fairly constant speed of twenty-five miles an hour to A, the point of collision.
The highway running east and west intersects and crosses the railway west of B at point C. We then have the enclosed right triangle, the two highways, AB and BC, forming the two legs and the railway, AC, the hypotenuse. The railway rises southeasterly at a grade of one-tenth of one percent. The railway tracks are built at a fairly constant elevation about the abutting land between A and C--at point A, five feet. The field enclosed within the triangle, A B C, is open, with absolutely no obstruction to vision and full view of the railway from any given point on Dry Creek Road between A and B, except only, that one witness suggested, but offered no positive testimony, that there may have been a hay stack somewhere between Dry Creek Road, A to B, and the railway, A to C. The triangle, A B C, is a level plane rising slightly as it approaches A. Nothing obstructs the plain and full view of the railway tracks from any point between A and B. It is to be noted that the railway tracks from A to C were elevated approximately five feet above the land east of such tracks. The passenger train was in plain, full view at any point between A and C from any point on AB. Respondent's witness, John S. Milesnick, who has lived four and one-half miles north of Belgrade for twenty-two years, testified the triangle A B C was 'a great big wide open field'.
Alex H. Cloyd drove a dark DeSoto northward on Dry Creek Road and crossed the railway tracks shortly before the accident. Respondent did not remember passing the Cloyd DeSoto, which he must have passed on Dry Creek Road very near to and north of the railway track. Cloyd testified as follows:
Henry Carpenter, with his wife, Iva Evelyn Carpenter, and her mother, followed the respondent from point B to within a short distance from A when the accident occurred. They followed at a distance of two hundred feet. Mr. Carpenter was driving, but did not testify. His wife, respondent's witness, testified as follows:
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Wallace Cox, who had resided fifteen miles north of Belgrade for forty years, drove into Belgrade just before the accident. As he crossed the railway track he looked down the track and saw the train at a distance between one and two miles away. He testified:
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