Roberts v. Chi., M. & St. P. Ry. Co., 5225.

• Docket Nº: No. 5225.
• Citation: 67 Mont. 472
• Case Date: June 12, 1923
• Court: United States State Supreme Court of Montana

67 Mont. 472

ROBERTS
v.
CHICAGO, M. & ST. P. RY. CO. ET AL.

No. 5225.

Supreme Court of Montana.

June 12, 1923.

Commissioners' Opinion.

Appeal from District Court, Rosebud County; George A. Horkan, Judge.

Action by O. H. Roberts as administrator of the Estate of Anna E. Roberts, deceased, against the Chicago, Milwaukee & St. Paul Railway Company and another. From judgment for defendants, plaintiff appeals. Affirmed.

E. E. Enterline, of Casper, Wyo., Campbell & Carolan, of Forsyth, and McIntire & Murphy, of Helena, for appellant.

Murphy & Whitlock, of Missoula, and I. S. Crawford, of Forsyth, for respondents.

BENNETT, C.

This case is before us on an appeal from a judgment entered in favor of defendants, Chicago, Milwaukee & St. Paul Railway Company, a corporation, and Elmer Dunlap, and against O. H. Roberts as administrator of the estate of Anna E. Roberts, deceased, in an action wherein plaintiff sought to recover for the death of the decedent who was his wife, alleged to have been caused by defendants' negligence. At the close of plaintiff's case, on the trial of the cause, the court granted a motion for nonsuit, on which the judgment appealed from was entered. Plaintiff's testimony discloses the following conditions: On the 11th day of September, 1920, about midday, decedent and her niece were driving a horse and buggy from the home of decedent in Rosebud county, Mont., to a place in the same county called Bascom. At the village of Bascom was a station on the line of railway owned and operated by defendant company. The track extended in an easterly and westerly direction from this station. The highway on which decedent was traveling ran in a northerly and southerly direction across the tracks of the railroad company at a point approximately 450 feet west of the station house. The trackage consisted of a main track and what was designated as a passing track. This passing track was 3,250 feet in length and was north of and distant from the main track 10 feet 4 inches, the measurement being taken from the north rail of the main track to the south rail of the passing track. The highway crossed these tracks 1,600 feet west of the east end of the passing track and 1,650 feet east of the west end, and continued almost at right angles thereto and in a northerly direction across a third track which was designated as an industrial track. This track was 43 feet distant from the middle of the passing track. From a point a short distance across the industrial track the road continued in a general northeasterly direction. At some distance, which is not given, it passed a stockyard which was adjacent to the industrial track and between it and the road. The distance from the crossing where the industrial track left the main or passing track was not given. The testimony was that, on coming from the north, a person traveling toward the post office, which appears to have been on the highway a short distance south of the tracks, at a point 10 feet south of the industrial track, the main line and the passing track were visible as far east of the crossing as the station house. This distance was 450 feet. Continuing from that point toward the crossing of the main and passing tracks, the view of those tracks to the east increased until at a point approximately 12 feet north of the north rail of the passing track the tracks could be seen east from the crossing to the east switch, a distance of 1,600 feet. From these facts it appears that at a point 32 feet north of the north rail of the main track, both the main and passing tracks are in view for at least 800 feet east of the crossing.

On the day in question, the two ladies were going toward the post office at Bascom from their home, which was north or northeast from the crossing. They were traveling at a rate of speed which was given as 2 1/2 miles per hour or 3 2/3 feet per...