Monforton v. Northern Pac. Ry. Co.

Citation138 Mont. 191,355 P.2d 501
Decision Date11 August 1960
Docket NumberNo. 10048,10048
PartiesErnest MONFORTON, Plaintiff and Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, and Henry Morris, Defendants and Appellants.
CourtUnited 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:

'Q. I presume, Mr. Cloyd, that you were driving on your own right-hand side of the road as you crossed the tracks? A. Yes, sir.

'Q. And I also presume that you were proceeding at a reasonable rate of speed? A. Yes, sir.

'Q. About how fast, if you can remember, were you traveling? A. I can't remember.

'Q. Do you remember whether you were driving fast? A. Oh, probably 40 miles an hour.

'Q. That road there is wide enough for two cars to pass? A. Plenty of room.

'Q. Easy isn't it? A. Yes, sir.

'Q. Did you make plenty of room on the other side for cars to pass you going in the opposite direction? A. I always did.

'Q. Incidentally do you happen to remember whether you may have met any other traffic besides the truck at or near the time of this accident? A. I met one truck going the opposite direction to what I was.

'Q. And I think that's that truck that was involved in this collision, wasn't it? A. I think so, sir.

'Q. Did you look up the track to see if a train was coming before you crossed? A. I looked down the track.

'Q. Did you look left or right? A. How was that?

'Q. Did you look left or right? A. I guess that would be my left.

'Q. And there was a train coming towards the crossing was there not? A. Yes, sir.

'Q. And you looked at it and felt that you had time to get over didn't you? A. Yes, sir.

'Q. And did you make it over in plenty of time to be safely out of the way of that train? A. Yes; well, I thought I was.'

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:

'Q. And who besides your husband and yourself was in the car? A. My mother, Mrs. Thompson.

'Q. And--all right. You followed Mr. Monforton as he proceeded south? A. Yes.

'Q. And would you know approximately the distance that you were behind his truck as you followed him to the south? A. I would say 200 feet approximately.

'Q. And, now Mrs. Carpenter, did you later become aware there was a train on the track? A. Well, just before we stopped at the crossing we saw it.

'Q. And what kind of a train was it on the track? A. Passenger.

'Q. And did--who in your car first observed the train? A. I believe it was myself.

'Q. Now you say it was just before you stopped at the crossing. Did you stop near the crossing that day? A. Well, I imagine we were about 200 feet from the crossing anyway.

'Q. That your husband stopped the car? A. Yes.

'Q. And you had been traveling south along this Dry Creek road and--A. (Interposing) Yes.

'Q. (Continuing)--and was just about that point when you first observed the passenger train, is that correct? A. Yes.

'Q. How did you happen to stop your car there, if you know? A. Well, we saw the train and then stopped.

'Q. And what did you observe about Mr. Monforton's truck at the time? A. Well, he wasn't driving very fast, and we thought he might stop, but he failed to do so.

'Q. And then did you see his truck get hit? A. We did. * * *

'Q. Did you, in your own car, try to do anything to attract Mr. Monforton's attention to the train? A. No.

'Q. Did you consider attempting to do such? A. Yes, we thought of honking but we was afraid it would attract his attention back instead of forward.

'Q. Could you tell from the rear view mirror, either from Mr. Monforton's rear view mirror or looking through his window, what he was doing as he approached the track? A. No.

'Q. In other words, you didn't know whether he was looking or not? A. No. * * *

'Q. Did you actually discuss with your husband the matter of whether or not you should blow the horn to attract his attention? A. I think I mentioned it but I don't think my husband answered. He said afterwards he was afraid it would attract his attention back.

'Q. About how far do you think Mr. Monforton was, if you can give us an estimate, when you mentioned that to your husband? A. Well, he was very close to the track; I couldn't tell how far.

'Q. Well, is it fair to put it this way then, that you didn't consider that there was any danger until Mr. Monforton was very close to the track? A. True.

'Q. However, you had watched--you had seen the train approaching for some little distance and just felt that Mr. Monforton would naturally see it and stop, is that right? A. Yes.

'Q. And you yourself saw the train? A. Yes.

'Q. Were you driving a sedan? A. Yes. * * *

'Q. Isn't it a fact, Mrs. Carpenter, that you were so totally absorbed with what you saw going on before you that you pretty much were unmindful of everything else going on except trying to figure whether Mr. Monforton would make it or not? A. To a certain extent.

'Q. You were terribly concerned about it weren't you? A. Sure.'

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:

'Q. Now when you are driving an unloaded truck in which you have no visibility do you want this court and jury to believe that you didn't consider it necessary to look up the track to see how far you could see a train--look for a train? A. I always leaned forward and looked as far as my visibility would limit me in a truck.

'Q. In other words, you did take the precaution, Mr. Cox, in all circumstances, didn't you, that I consider any prudent driver should, of leaning forward and peering out your right window to see just as far as you could see, isn't that right? A. That is correct; your vision is limited.

'Q. But you did make a practice of looking up the track by leaning forward when you were in your truck of limited...

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