Sullivan v. Northern Pacific Railway Co. , 109 Mont. 93 ( 1939 )

The only evidence to support the alleged failure to blow the whistle and ring the bell is the negative testimony of plaintiff and her son, under most unfavorable conditions, and two other witnesses who admit they probably would not have heard the whistle or bell if blown or sounded. Under the circumstances, such evidence is wholly insufficient to prove such grounds of negligence or to make a question for the jury in the face of positive testimony of all the switch crew and of one other witness. (See 22 R.C.L. 1057; Grant v. Chicago M. St. P.R.Co., 78 Mont. 97, 252 P. 382; Rau v. Northern P. Ry.Co., 87 Mont. 521, 289 P. 580; Pere Marquette Ry. Co. v.Anderson, 29 F.2d 479; Bergman v. Northern P. Ry.Co., 14 F.2d 580; Seaboard Air Line Ry. Co. v. Myrick,91 Fla. 918, 109 So. 193; Klein v. United Rys. Elec. Co.,152 Md. 492, 137 A. 306; White v. Southern Ry. Co., 151 Va. 302, 144 S.E. 424; Lawson v. Minneapolis etc. Ry. Co.,174 Minn. 404, 219 N.W. 554.)

In Haddox v. Northern P. Ry. Co., 43 Mont. 8,113 P. 1119, the court said: "Juries may not arbitrarily and capriciously disregard testimony of witnesses, not only unimpeached in any of the usual modes known to the law, but supported by all the circumstances in the case." In Casey v.Northern P. Ry. Co., 60 Mont. 56, 198 P. 141, the court held that plaintiff's evidence was so discredited that a verdict in his favor must be set aside and the case dismissed. (See, also, First State Bank v. Larsen, 65 Mont. 404, 211 P. 214;Morton v. Mooney, 97 Mont. 1, 33 P.2d 262; Boepple v.Mohalt, 101 Mont. 417, 54 P.2d 857; Chesapeake O.R.Co. v. Martin, 283 U.S. 209, 214, 51 Sup. Ct. 453,75 L. Ed. 983.)

Attention of plaintiff attracted by approaching truck or by snow: The mere fact, if it is a fact, that an approaching truck, or snow on sides of 21-foot cleared portion of street, attracted plaintiff's attention does not excuse her driving onto this track without looking to the west immediately before doing so, especially when the truck turned east while she was 50 feet or more from this track. (Normandin v. Payne, 65 Mont. 543,212 P. 285; West v. Detroit Terminal R. Co., 229 Mich. 590,201 N.W. 955; Haffke v. Missouri P. R. Corp., 110 Neb. 125,193 N.W. 257; Lee v. Chicago etc. Ry. Co., 68 Minn. 49,70 N.W. 857; Smith v. Chicago etc. Ry. Co., 137 Wis. 97,118 N.W. 638.)

Effect of discredited testimony given by plaintiff: The plaintiff's own testimony so impeached and contradicted is governed by a well-recognized rule repeatedly announced and followed by this court, namely, that a "party testifying in his own behalf has no right to be deliberately self-contradictory and whenever he is so the courts are justified in judging his case from the version of his testimony which is least favorable to him." (Casey v. Northern P. Ry. Co., supra; Wilson v.Blair, 65 Mont. 155, 211 P. 289, 27 A.L.R. 1235; Putnam v.Putnam, 86 Mont. 135, 282 P. 855; Dunn v. Beck, 80 Mont. 414,260 P. 1047; Langston v. Currie, 95 Mont. 57, 26 P.2d 160; McLaughlin v. Corcoran, 104 Mont. 590,69 P.2d 597; Davis v. F.W. Woolworth Co., 60 F.2d 344; Wheeler v. Fidelity Deposit Co., 63 F.2d 562.)

Standing locomotive no excuse for not looking: It is well settled in this state, by a long line of decisions, that a railway track is itself a warning of danger and that if a person steps or drives from a point of safety onto a railway track without making a vigilant use of his senses just before doing so, instead of at some remote point from the track, he is guilty of contributory negligence. (George v. Northern P. Ry. Co.,59 Mont. 162, 196 P. 869; West v. Davis, 71 Mont. 31,227 P. 41; Grant and Rau Cases, supra; Scherer v. Southern P.Co., 140 Cal. App. 528, 35 P.2d 356; Smith v. OregonS.L.R. Co., 47 Idaho, 604, 277 P. 570.)

If a railway track itself is such a warning of danger as to require a person to look immediately before going onto the same, how can this duty to look at such point be avoided or excused by the fact that a party, when 110 or 150 feet away, actually discovers, over a string of ore cars, a locomotive headed towards the crossing, with smoke coming from the engine? In fact, it makes the duty to look all the more imperative for the traveler not only knows that a railway track — itself a warning of danger, is there — but, at that particular time a locomotive — the thing that makes the track dangerous — is on such track in the immediate vicinity of the crossing, with the engine smoking, thus showing that it is not a dead engine but one that may move at any instant. (Mehegan v. New York Central H.H.R. Co., 64 Hun, 637, 19 N.Y. Supp. 444, McFarland v. Chicago, M. St. P.R.Co., 51 S.D. 85, 212 N.W. 493; Easley v. Pennsylvania R.Co., 238 Pa. 67, 85 A. 1132; Ash v. Wilmington N.R. Co.,148 Pa. 133, 23 A. 898; Wilkinson v. Oregon S.L.R. Co.,35 Utah, 110, 99 P. 466; Caldwell v. Kansas City etc. R. Co.,58 Mo. App. 453; Chicago, Terminal Transfer R. Co. v.Korando, 129 Ill. App. 620; Hoffman v. Pennsylvania R. Co.,215 Pa. 62, 64 A. 331; Kennedy v. Chicago N.W.R. Co.,68 Iowa, 559, 27 N.W. 743; Chesapeake O. Ry. Co. v. Williams,148 Ky. 178, 146 S.W. 381; Olin v. Minnesota Transfer R. Co.,164 Minn. 512, 205 N.W. 440; Stottler v. Wabash R. Co.,181 Mo. App. 642, 164 S.W. 668; Chicago Terminal Transfer Co. v.Halbreg, 124 Ill. App. 113; Lackey v. Louisville N.R.Co., 261 Fed. 905.) On the question of positive and negative evidence of ringing the bell and sounding the whistle, the case of Haun v. RioGrande W. Ry. Co., 22 Utah, 346, 62 P. 908, holds: "The general rule of evidence that affirmative testimony is of higher character and of greater weight than negative testimony is subject to two exceptions: (1) Any negative witnesses who are credible and who were in a position where they could readily hear and see what transpired and directed their attention thereto, testified that they did not see or hear the occurrence testified to by the affirmative witnesses: (2) When negative witnesses who are credible were in a position where they could readily see and hear what transpired and directed their attention thereto, testified positively that the occurrence testified to by the affirmative witnesses did not happen."

While his court has never distinguished the general rule of evidence that affirmative testimony is of a higher character and greater weight than negative testimony and recognized any exceptions thereto, it has held that while negative testimony is sufficient to make out a prima facie case, it is without value unless it is shown that deceased was in a position to hear, was attentive, and that the conditions were such that he would probably have heard if signals were given. (Rau v. NorthernP. Ry. Co., 87 Mont. 521, 289 P. 580; Riley v. NorthernP. Ry. Co., 36 Mont. 545, 93 P. 948; Mullery v. GreatNorthern Ry. Co., 50 Mont. 408, 148 P. 323; Hickey v. RioGrande W. Ry. Co., 29 Utah, 392, 82 P. 29; Davis v. Boggs,22 Ariz. 497, 199 P. 116; 3 Nichols, Applied Evidence, p. 2434.)

The question of law presented by the facts is: Did the respondent act as a reasonable person would have acted under the same or similar circumstances, taking into account the standing engine and the diversions which confronted her? We believe she did. In the case of Kirby v. Southern P. Ry. Co., 108 Or. 290,216 P. 735, the court said: "The court cannot declare as a matter of law that a person about to cross a railway track must have looked at any particular place, or in any particular direction; but it is ordinarily for the jury to determine whether he selected a proper place for making observation, and otherwise exercised ordinary care for his own safety." (See, also, 22 R.C.L. 1032; Casto v. Hansen, 123 Or. 20, 261 P. 428, 430;Pietrofitta v. Southern P. Co., 107 Cal. App. 575,290 P. 597; Cooper v. North Carolina R. Co., 140 N.C. 209,52 S.E. 932, 6 Ann. Cas. 71, 73, note 216, 3 L.R.A. (n.s.) 391;Rosenberg v. Des Moines Ry. Co., 213 Iowa, 152, 238 N.W. 703;Texas P. Ry. Co. v. Ray, (Tex.Civ.App.) 287 S.W. 91;Butterfield v. Chicago R.I. P. Ry. Co., 193 Iowa, 323,185 N.W. 151.)

We believe that to make the rule announced in Casey v.Northern P. Ry. Co., relied upon by appellant applicable, it must appear from the testimony and physical facts under consideration on appeal that the party testifying in his own behalf was deliberately self-contradictory before this court is justified even under the rule laid down in Casey v. NorthernP. Ry. Co., in judging a case from that version of his testimony which is least favorable to him. The weight of authority on this question is set forth in the following cases:In re Hess' Estate, 57 Minn. 282, 59 N.W. 193; Hahn v.Bettingen, 84 Minn. 512, 88 N.W. 10; Miller v. Stem, 12 Pa. St. 383.) It has been held that contradictory evidence is not necessarily fatal to belief in a story. The jury may believe one or the other of the stories. (Van Salvellergh v. Green Bay Tr.Co., 132 Wis. 166, 111 N.W. 1120; Bruger v. Princeton St.M. etc. Ins. Co., 129 Wis. 281, 109 N.W. 95; Bitter RootCreamery Co. v. Muntzer, 90 Mont. 77, 300 P. 251; Miller v. Schimming, 129 Cal. App. 171, 18 P.2d 357; Smarda v.Fruit Growers' Supply Co., 1 Cal. App. 2d 265,36 P.2d 701; Williams v. General Ins. Co., 8 Cal. 2d 1, 63 P.2d 289; Stevens v. Woodmen of the World, 105 Mont. 121,71 P.2d 898; Osenes Live Stock Co. v. Warren, 103 Mont. 284,62 P.2d 206; Wise v. Stagg, 94 Mont. 321, 22 P.2d 308.)

Standing engine or train as affecting question of contributory Negligence: We believe the following cases and decisions represent the decided weight of authority on the question:United States Director-General v. Lanzinger, 269 Fed. 552;Dehardt v. Atchison, T. S.F. Ry. Co., 100 Kan. 24,163 P. 650, L.R.A. 1917D, 549; Atchison, T. S.F. Ry. Co. v. Wilke,77 Kan. 791, 90 P. 775, 127 Am. St. Rep. 464, 15 Ann. Cas. 731, 11 L.R.A. (n.s.) 963; St. Louis S.F. Ry. Co. v. Dawson,64 Kan. 99, 67 P. at 521; Lawrence v. St. Louis H.R. Ry.Co., (Mo.App.) 258 S.W. 54; Meeks v. Ohio R.R. Co., 52 W. Va. 99, 43 S.E. 118; Louisville N. Ry. Co. v. Cooper, 23 Ky. Law Rep. 1658; 65 S.W. 795; Berkery v. Erie R. Co.,67 N Y Supp. 189; 65 N.E. 1113; affirmed 172 N.Y. 636, and not toWallenburg v. Missouri P. Ry. Co., 86 Neb. 642,126 N.W. 289, 37 L.R.A. (n.s.) 135; Stone v. Northern P. Ry. Co.,29 N.D. 480, 151 N.W. 36; Gillaspie v. Louisiana M. R.R. Co., 260 S.W. 547; Hanrahan v. Sprague, 220 Iowa, 867,263 N.W. 514; McWilliams v. Detroit Central Mills Co.,31 Mich. 274:

Diversion of attention as affecting question of contributory negligence: (22 R.C.L., p. 1035; Lorenz v. Burlington etc. Ry.Co., 115 Iowa, 377, 88 N.W. 835, 56 L.R.A. 752; High v.Waterloo C.F. N. Ry. Co., 195 Iowa, 304, 190 N.W. 331;Chisholm v. Seaboard Airline Ry. Co., 121 S.C. 394,114 S.E. 500; Provenzano v. Illinois Cent. Ry. Co., 263 Ill. App. 530;Haven v. Chicago, M. St. P. Ry., 188 Iowa, 1266,175 N.W. 587; Artz v. Chicago R.I. P. Ry. Co., 34 Iowa, 153;Butterfield v. Chicago R.I. P. Ry. Co., 193 Iowa, 323,185 N.W. 151.) The plaintiff, accompanied by her son, a boy about twelve years old, drove her car along Garden Avenue in the city of Butte at a point where the avenue is crossed by seven railway tracks — three of the Great Northern, two of the Butte, Anaconda Pacific, and two of the Northern Pacific. From south to north the tracks are as follows: 1, 2 and 3, Great Northern; 4 and 5, Butte, Anaconda Pacific; 6 and 7, Northern Pacific. From track 1 to track 6 is a distance of about 175 feet. The Great Northern maintains a "flagman's shanty" between tracks 3 and 4. The other companies do not have flagmen at the crossing.

Plaintiff, who had been familiar with the crossings for thirteen years, was proceeding north. She asserted that at or about a distance of 25 feet from and south of track No. 1, she looked east and west for the approach of locomotives or trains, but did not see any approaching, so proceeded to cross the tracks at 10 miles an hour. She said that at the time she looked she saw an engine on either track 6 or track 7, about 100 feet west of the crossing; that smoke was ascending directly above the engine so that she thought it was standing still. She claimed that thereafter no bells were rung nor whistle blown to warn her of a contrary condition. When she was on track 6, the engine, moving at a slow rate of speed, struck her car and shoved it about 15 feet and injured her.

In her complaint plaintiff alleged numerous grounds of negligence on the part of the company, such as failure to blow the whistle for the crossing, failure to ring the bell or keep a proper lookout for automobiles, failure to have a yardman or trainman on foot to precede the engine, the violation of several ordinances and of certain rules of the railway company.

The defendants denied the acts of negligence, and affirmatively pleaded that plaintiff was guilty of contributory negligence for the reason that, when she was more than 150 feet from the sixth track from the south, the place of the accident, she had an unobstructed view of the tracks toward the west for a distance of about 335 feet, and that she traveled about 200 feet at a speed of about 10 miles an hour from the point 25 feet south of track No. 1 to track No. 6 without looking to the west, the direction in which she had seen the locomotive which she claimed was standing.

At the close of the evidence a motion for a directed verdict was made by defendants and denied by the court. A verdict was returned in favor of plaintiff for $3,000 and judgment entered accordingly. No motion for new trial was made, and the appeal is from the judgment.

The specifications of error tender three points: (1) That plaintiff failed to prove any of the acts of negligence alleged by her by any substantial evidence; (2) "That plaintiff was guilty of contributory negligence as a matter of law when driving unto the sixth track, as admitted by her on the stand, a distance of somewhere between 110 and 150 feet from the sixth track, without looking west to ascertain if said locomotive was approaching said crossing"; (3) "That if there was any negligence on the part of defendants, that the ordinary negligence of the plaintiff concurred therewith up to the moment of the collision and was a proximate cause of such collision."

Plaintiff claims that she established negligence in four particulars, and relies upon them, to-wit: Failure (1) to sound whistle; (2) to ring bell for crossing; (3) to keep a proper lookout for automobiles; and (4) to ring bell before starting locomotive from standing point. Defendants assert that all of the grounds of negligence were either abandoned or no proof thereof offered, except as to the charge that the bell was not rung as the locomotive passed through the yards, and that the whistle was not blown for the crossing.

The accident occurred on February 25, 1937. There was some snow on the ground. Plaintiff and her young son, who accompanied her, claimed that there was much more snow than other witnesses described. They claimed that snow was piled up along the side of the road. The amount of snow was not very important except that plaintiff claimed that she met a truck as she was about to cross the tracks, and that her attention was absorbed in trying to pass it without getting into the deep snow. However, the truck turned off and never passed the car, and she was back in the road before the accident occurred, her theory being that her attention was diverted by another danger. Her exact testimony on direct examination was: "When I saw the locomotive it was just behind the semaphore, I mean a little west of it. I did not pay any further attention to that locomotive. The next thing that attracted my attention was a truck coming down the highway and I watched the truck to see if it were coming towards me and in preparing to meet it, I swung my car to the side of the road and then observed the truck driver giving a signal with his arm out, signaling that he was going to turn. I then swung back into the road again." On cross-examination she said: "When I was on the last track of the Great Northern and the first B.A. P. track I did look to the west and saw the locomotive standing. From that point on I did not look again to the west because of the fact I saw this truck coming down and I tried to avoid that."

The boy testified: "When I was on the last track of the Great Northern is when I looked over and saw the locomotive. From that time I was looking the other way and did not look over and see the locomotive again until it hit us."

The weather was cold — between 11 and 25 degrees above zero. In a signed statement made to an agent of the railway company just after the accident, plaintiff said: "It was quite cold at the time of this accident, and I had all of the windows in the car closed. There was no frost on any of the windows. As I approached this railroad crossing I did not look either to the west or to the east to see if there was any train or engine coming toward this railroad crossing. I had driven over this crossing for about 13 years and am familiar with it." At the trial she said the window on the left side, the side toward the locomotive, was down a couple of inches, and the one on the right side clear down. The boy testified at the trial for the first time and agreed with the later statement of his mother.

The testimony of the engineer and switching crew was positive as to the sounding of the whistle and the ringing of the bell. The engineer was asked the following question: "When you started east, did you give any signals, if so, where?" And he gave the following answer: "As you leave the freight house and get in the neighborhood of the Belmont Mine, as a rule, you sound one long blast of the whistle, I think the Belmont Mine is two blocks west of Garden Avenue, which would be something like 600 feet plus the width of the street. I sounded one long blast of the whistle. That is to call attention to the tower man that there is an engine approaching, wanting the board. This board is a board that controls the operation of the derail on the Northern Pacific tracks. I think that derail is between Garden Avenue and Warren Avenue. If I did not give the long blast and get this board adjusted, I could not go on east, could not go beyond that board. If we call for the board and the board is given to us, that is a clearing board, we answer by two short blasts of the whistle to let the tower man know that we have accepted the board and going to use it. Those blasts were given on this date. Those blastswere given as we approached Warren Street, the street west wherethe accident happened. Also on that date as we approached Garden Avenue, between the long blasts of the whistle calling for the board, I sounded a crossing whistle for those two crossings there at the Belmont Mine. I mean the crossing just east of the Belmont Mine and the crossing east of the loading tipple — that would be Garden and Warren Avenue. As we made that movement, the bell was automatically ringing with air. I started the bell ringing from the time we left East Butte going to the freight house with this car. After delivering this car, this bell was never shut off, up to the time we collided with this car. After leaving the freight house on this movement east, I did not stop the locomotive at any point before the collision. I should judge I was traveling at about five miles an hour." The witness was corroborated by the other members of the crew and by at least one other witness who lived in the neighborhood. All testified that the bell was rung and the whistle blown.

All of the witnesses who testified for the plaintiff, including herself and her boy, and who assumed to speak on the question of the bell and the whistle, gave negative testimony. They testified that they were in more or less advantageous positions to hear, but that they did not hear the bell rung or the whistle blown. They did not assume to say as a positive fact that the bell was not rung or the whistle was not blown.

The effect of the changed testimony of the plaintiff with[1, 2] relation to the position of the car windows was to increase the probability of herself and her son to hear the whistle and bell. If the car windows were all closed, as she first stated, they were not as likely to have heard as they would have been if they were open in the manner described at the trial. The change in the testimony was important. It is apparent that plaintiff was seeking to avoid the adverse effect of the rule laid down in 22 Ruling Case Law, at page 1057, which is as follows: "It is a general rule, however, that as against positive evidence by credible witnesses to the ringing of the bell, or the sounding of the whistle, there must be something more than the testimony of one or more that they did not hear it to authorize the submission of the question to the jury. A mere ``I did not hear it' is entitled to no weight in the presence of affirmative evidence that the signal was given, and does not create a conflict of evidence justifying a submission of the question to the jury as one of fact."

This rule has been the subject of comment by this court, particularly in the cases of Grant v. Chicago, Milwaukee St.Paul Ry. Co., 78 Mont. 97, 252 P. 382, and Rau v. NorthernP. Ry. Co., 87 Mont. 521, 289 P. 580. In the Grant Case the court said: "With respect to defendants' failure to sound the whistle or ring the bell, the plaintiff testified, ``I heard no noise as we approached; I did not hear anything to indicate the approach of a train as we proceeded down the highway towards the crossing;' while Ballinger testified, ``I listened for the whistle or bell but heard nothing; I heard no warning signals from the train or engine as it approached the crossing.' * * * Under the provisions of section 6521, Revised Codes of 1921, the defendants were charged with the duty of sounding the whistle at a point between 50 and 80 rods (between 825 and 1,320 feet), and ringing the bell from such point until the crossing was reached (Sprague v. Northern P. Ry. Co., 40 Mont. 481,107 P. 412), and plaintiff had the burden of proving that they did not do so. The testimony as to the alleged default in this respect was entirely negative. While negative testimony may be sufficient to establish such issue (Walters v. Chicago, M. Puget SoundRy. Co., 47 Mont. 501, 133 P. 357, 46 L.R.A. (n.s.) 702;Riley v. Northern P. Ry. Co., 36 Mont. 545, 93 P. 948;Mullery v. Great Northern Ry. Co., 50 Mont. 408,148 P. 323), the attendant circumstances must be such as to afford a reasonable opportunity to hear the warning signals (Howe v.Northern R. Co. of New Jersey, 78 N.J. Law 683, 76 A. 979;Davis v. Payne, 120 S.C. 473, 113 S.E. 325). Applying these rules, however, to the evidence in the instant case, we are unable to conclude that the attendant circumstances were such that reasonable men could reach no other conclusion than that no reasonable opportunity was afforded to plaintiff and Ballinger to hear the warning signals."

In the Rau Case, supra, the court made the following statement: "The statement of a witness that he did not hear such a signal is without value as evidence, unless it further appears that he was in a position to hear, was attentive, and that the conditions were such that he would probably have heard such signal, if it had been sounded."

These cases announce the proper rule, as do also the following ones: Pere Marquette Ry. Co. v. Anderson, (7 Cir.)29 Fed. 2d 479; Bergman v. Northern P. Ry. Co., (8 Cir.)14 Fed. 2d 580; Seaboard Air Line Ry. Co. v. Myrick, 91 Fla. 918,109 So. 193; Klein v. United Rys. Elec. Co., 152 Md. 492,137 A. 306; White v. Southern Ry. Co., 151 Va. 302,144 S.E. 424; Lawson v. Minneapolis etc. Ry. Co., 174 Minn. 404,219 N.W. 554.

It will thus be observed that under this rule plaintiff's testimony was insufficient to prove the alleged negligence. It is true that in this instance the boy and two other witnesses gave similar negative testimony, but this negative testimony was combated and contradicted by the positive testimony of five witnesses who stand unimpeached and supported by the circumstances in the case, which brings us to a proposition that has frequently confronted this court.

In Haddox v. Northern P. Ry. Co., 43 Mont. 8, 113 P.[3] 1119, 1122, this court said: "Juries may not arbitrarily and capriciously disregard testimony of witnesses, not only unimpeached in any of the usual modes known to the law, but supported by all the circumstances in the case."

Defendants rely upon the rule laid down in Casey v.Northern P. Ry. Co., 60 Mont. 56, 198 P. 141, which is to the effect "that whenever the surrounding circumstances make the story of a witness highly improbable or incredible, or whenever the testimony is inherently impossible, a reversal should occur." Of course, this court has consistently adhered to the rule that questions of credibility are for the jury alone. The general rule was well expressed by the Supreme Court of the United States in the case of Chesapeake Ohio R. Co. v. Martin, 283 U.S. 209,51 Sup. Ct. 453, 456, 75 L. Ed. 983, as follows: "We recognize the general rule, of course, as stated by both courts below, that the question of the credibility of witnesses is one for the jury alone; but this does not mean that the jury is at liberty, under the guise of passing upon the credibility of a witness, to disregard his testimony, when from no reasonable point of view is it open to doubt. The complete testimony of the agent in this case appears in the record. A reading of it discloses no lack of candor on his part. It was not shaken by cross-examination; indeed, upon this point, there was no cross-examination. Its accuracy was not controverted by proof or circumstance, directly or inferentially; and it is difficult to see why, if inaccurate, it readily could not have been shown to be so. The witness was not impeached; and there is nothing in the record which reflects unfavorably upon his credibility. The only possible ground for submitting the question to the jury as one of fact was that the witness was an employee of the petitioner. In the circumstances above detailed, we are of opinion that this was not enough to take the question to the jury, and that the court should have so held."

Here the only reflection that may be cast upon the witnesses who testified as to the ringing of the bell and the blowing of the whistle is the fact that most of them were employees of the railway company, and, as the United States Supreme Court said, that is not enough to render their testimony unbelievable.

The application of the rule announced in the Casey Case is to be found in the fact that plaintiff gave conflicting testimony or made conflicting statements with relation to material facts, viz.: in her first signed statement she said she did not look to the west or east and made no mention of seeing a locomotive at all. In her complaint she said that she looked to the west only at a point 25 feet south of the first Great Northern track and saw no locomotive standing. At the trial she said she looked again between the third and fourth tracks and saw the locomotive. In her deposition taken before the trial she said that the engine was either standing still or almost standing still. She explained that her reason for thinking so was that the smoke was going straight up. We have already adverted to the fact that her testimony was conflicting and contradictory on the question of the conditions of the windows of the car. The only testimony in the record as to the locomotive being at a standstill at the time the plaintiff approached the track is this last statement that she made. There is no other testimony that the locomotive had stopped, while on the other hand all of the members of the train crew testified that the engine was moving slowly — about 4 1/2 or 5 miles an hour — all of the time involved. It is obvious that a starting signal by the engineer with the whistle was not required if the engine was moving all the time. The contention that it was not given was of necessity predicated upon the theory that the engine was standing still when plaintiff first saw it, and that thereafter it started up without a starting signal. It thus becomes obvious that the questions as to the constant ringing of the bell and the crossing signal are about the only things left upon which plaintiff's theory could be predicated.

To us the question whether the engine was standing still or[4] moving slowly seems unimportant. Under any of the theories advanced plaintiff admitted knowledge of the fact that there was a locomotive standing "or almost standing still" near the crossing, fired up, with smoke ascending and in dangerous proximity to the crossing. This should have been enough to put her on her guard. The fact that there was an approaching automobile did not justify her in giving her whole attention thereto. (Normandin v. Payne, 65 Mont. 543, 212 P. 285;West v. Detroit Terminal R., 229 Mich. 590, 201 N.W. 955;Southern R. Co. v. Priester, (4 Cir.) 289 Fed. 945; Haffke v. Missouri P. R. Corp., 110 Neb. 125, 193 N.W. 257; Lee v.Chicago etc. R. Co., 68 Minn. 49, 70 N.W. 857; Smith v.Chicago etc. R. Co., 137 Wis. 97, 118 N.W. 638.)

The duty resting upon plaintiff was well described by this[5] court in George v. Northern P. Ry. Co., 59 Mont. 162,196 P. 869, 871, where it said: "``Every person is bound to an absolute duty to exercise his intelligence to discover and avoid dangers that may threaten him. When, therefore, a plaintiff asserts the right of recovery on the ground of culpable negligence of the defendant, he is bound to show that he exercised his intelligence to discover and avoid the danger, which he alleges was brought about by the negligence of the defendant.' This statement of the rule requires the person approaching a railway crossing to take all reasonable precaution to assure himself by actual observation that there is no danger from an approaching train. The failure of the persons in charge of the train to keep a lookout and to give warning signals of its approach to the crossing does not relieve the traveler from the necessity of making a vigilant use of his senses to ascertain whether it is safe to proceed. (Railroad Co. v. Houston,95 U.S. 697, 24 L. Ed. 542; Hunter v. Montana Central Ry. Co. [22 Mont. 525, 57 P. 140], supra.) It is not always sufficient if he does look and listen. The obligation resting upon him is to exercise care to make the act of looking and listening reasonably effective. (Sprague v. Northern P. Ry. Co., 40 Mont. 481,107 P. 412.) If he goes upon the crossing without taking this precaution, he is guilty of contributory negligence, and, if injured, cannot recover." (See, also, West v. Davis, 71 Mont. 31,227 P. 41; Normandin v. Payne, supra; Grant v.Chicago, M. St. Paul Ry. Co., supra; Rau v. NorthernPacific Ry. Co., supra; Scherer v. Southern P. Co.,140 Cal. App. 528, 35 P.2d 356; Smith v. Oregon S.L.R. Co.,47 Idaho, 604, 277 P. 570.)

The circumstances of this case were not the same as an[6, 7] ordinary crossing accident. Here were seven tracks of three different railways. In fact, the scene of the accident was really in railroad yards where the greatest degree of care and caution should have been observed. A case in point is Easley v.Pennsylvania R. Co., 238 Pa. 67, 85 A. 1132, where the plaintiff's team was hit by the tender of the engine attached to some cars. The court in reversing the judgment for plaintiff on the ground of his contributory negligence said: "His plea is that, when he stopped and looked, he saw the cars a very short distance south of him, but thought they were standing still, though he had a clear and unobstructed view of them. * * * He admits that he saw the train, and, because he thought it was standing still, paid no further attention to it until it was so close to him that he could not avoid it. These are his own words, frankly confessing a degree of carelessness in crossing a railroad track, which imperatively calls for a reversal of the judgment. What the appellee must have seen, if he had exercised ordinary care in looking, he is conclusively presumed to have seen, and the excuse which he gives is no better than if he had admitted he had not looked at all." (See, also, Mehegan v. New York Central H.R.R. Co., 64 Hun, 637, 19 N.Y. Supp. 444; McFarland v. Chicago etc. Ry. Co.,51 S.D. 85, 212 N.W. 493; Ash v. Wilmington N.R. Co., 148 Pa. 133,23 A. 898; Wilkinson v. Oregon S.L.R. Co.,35 Utah, 110, 99 P. 466; Caldwell v. Kansas City etc. R. Co.,58 Mo. App. 453; Chicago Terminal Transfer R. Co. v. Korando, 129 Ill. App.? 620.)

Here plaintiff admitted that she saw the engine but concluded that it was standing still, and thereupon gave no further attention to it on the theory that it would signal before starting. The jury could not disregard the effect of this admission, which, in our opinion, brings the case squarely within the rule of the cases just cited.

The judgment is reversed with instruction to the district court to dismiss the action.

MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICE MORRIS concur.