Rau v. Northern Pacific Railway Co. , 87 Mont. 521 ( 1930 )

It was claimed by the defendants at the trial of this action, in their argument for a motion for nonsuit, that the evidence on the defendants' failure to sound the whistle and ring the bell on the locomotive of said passenger train was insufficient to take the case to the jury. On this question whether or not the whistle was sounded and bell rung on a locomotive on approaching a crossing, we have several cases in Montana holding that the evidence such as that introduced at the trial of this case, even though it is considered as negative evidence and is opposed by so-called positive testimony, is sufficient to take the case to the jury. (See Walters v. Chicago etc. Ry. Co., 47 Mont. 501,506, 46 L.R.A. (n.s.) 702, and note, 133 P. 357; Riley v.Northern P. Ry. Co., 36 Mont. 545, 559, 93 P. 948;Mullery v. Great Northern Ry. Co., 50 Mont. 408, 420,148 P. 323; Grant v. Chicago etc. Ry. Co., 78 Mont. 97, 111,252 P. 382.)

There is the presumption "that he [a person] takes ordinary care of his own concern" (Rev. Codes 1921, sec. 10606, subsec. 4), including his life. If it was required that Mr. Rau should have looked and listened to satisfy the requirement of ordinary care in the case at bar, the presumption is that he did look and listen for the train approaching said crossing, and heard no whistle sounded nor bell rung. (Baltimore etc. R. Co. v.Landrigan, 191 U.S. 461, 48 L. Ed. 262, 24 Sup. Ct. Rep. 137;Texas etc. Ry. Co. v. Gentry, 163 U.S. 353, 366,41 L. Ed. 186, 192, 16 Sup. Ct. Rep. 1104; Kunkel v. Minneapolis etc. Ry. Co., 18 N.D. 367, 121 N.W. 830; Ledbetter v. St. Louisetc. Ry. Co., 184 Ala. 457, 461, 63 So. 987; Fleenor v.Oregon S.L.R. Co., 16 Idaho, 781, 102 P. 897; Cowen v.Merriman, 17 App. D.C. 186, 204; Flynn v. Kansas City etc.Ry. Co., 78 Mo. 195, 47 Am. Rep. 99; Atchison, T. S.F. Ry.Co. v. Morgan, 43 Kan. 1, 22 P. 995; Teipel v.Hilsendegen, 44 Mich. 461, 462, 7 N.W. 82.) The burden of proving that he did not do so rests upon the defendants throughout the case, and is a question for the jury. (Whaley v.Vidal, 27 S.D. 627, 132 N.W. 242; Nilson v. Chicago, B. Q.Ry. Co., 84 Neb. 595, 121 N.W. 1128; Northern P. Ry. Co. v.Spike, 121 Fed. 44, 57 C.C.A. 384; Texas etc. Ry. Co. v.Gentry, supra; Chesapeake Ohio R.R. Co. v. Steele, 84 Fed. 93-98, 29 C.C.A. 81; Dougherty v. Chicago, M. St. P.Ry. Co., 20 S.D. 46, 104 N.W. 672; Gray v. Chicago, R.I. P.Ry. Co., 143 Iowa, 268, 121 N.W. 1097.)

Plaintiff's decedent had the right to assume that the defendants would give all warnings required by the laws of this state, and to be governed by that assumption in his conduct, as an ordinarily prudent man, in the absence of evidence that they did not give such warning. Whether plaintiff's decedent used ordinary prudence under such circumstances was a question of fact for the jury and should have been submitted to them. (Butterfield v. Chicago etc. Ry. Co., 193 Iowa, 323,185 N.W. 151; Barrett v. Chicago etc. Ry. Co., 190 Iowa, 509, 525,175 N.W. 950, 180 N.W. 670; Moore v. Chicago etc. Ry. Co.,102 Iowa, 595, 71 N.W. 569; Platter v. Minneapolis etc. Ry. Co.,162 Iowa, 142, 143 N.W. 992; Walker v. St. Paul etc. Ry. Co.,81 Minn. 404, 51 L.R.A. 632, 84 N.W. 222.)

The failure of a railroad company to give a warning and signal such as ringing the bell and sounding the whistle on approaching a railroad crossing, as required by statutes of this state, is negligence per se. The public have a right to expect a compliance with the statute by the railroad company. (Stroud v.Chicago, M. St. P.R. Co., 75 Mont. 384, 243 P. 1089;Hunter v. Montana Cent. Ry. Co., 22 Mont. 525, 57 P. 140; De Atley v. Northern P. Ry. Co., 42 Mont. 224,112 P. 76, 6 Ann. Cas. 78, note.)

The question as to whether or not a rate of speed at a crossing is so dangerous or excessive as to constitute negligence must depend upon the particular circumstances there existing, and if the circumstances are such that reasonable and impartial men may wholly differ as to whether the speed at a particular place showed want of reasonable care, the question as to whether the railroad company was guilty of negligence in maintaining such speed is one for the jury. (Colorado S. Ry. Co. v. Lauter,21 Colo. App. 101, 121 P. 137, 145; Fuller v. Illinois Cent.R.R. Co., 100 Miss. 705, 728, 56 So. 783, 789; Chicago etc.Ry. Co. v. Netolicky, 67 Fed. 665, 14 C.C.A. 615; Weiss v.Bethlehem Iron Co., 88 Fed. 23, 31 C.C.A. 363; De Atley v.Northern P. Ry. Co., supra; Knobeloch v. Pittsburgh, H.B. N.C. Ry. Co., 266 Pa. St. 140, 109 A. 619; Texas etc. Ry.Co. v. Barrington, (Tex.Com.App.) 235 S.W. 188; Id., (Tex.Civ.App.) 209 S.W. 685.)

Plaintiff makes out a prima facie case when his evidence discloses injury to decedent, and that the negligence of the defendants was the proximate cause of it. This has been done in the instant case. The burden then is on the defendants to prove by a preponderance of the evidence, that the plaintiff's decedent was guilty of contributory negligence, which they have not done in the case at bar. In this jurisdiction, it is the rule that contributory negligence is a matter of defense to be established by preponderance of the evidence. In other words, the defendants must prove by preponderance of the evidence that the decedent was guilty of contributory negligence, thus making it a question for the jury. (Everett v. Hines, 64 Mont. 244, 208 P. 1063;Sprague v. Northern P. Ry. Co., 40 Mont. 481, 107 P. 412;Sherris v. Northern P. Ry. Co., 55 Mont. 189,175 P. 269.)

The following cases consider the questions of no warning given, excessive rate of speed of railroad trains in approaching crossings, and contributory negligence in railroad crossing cases, and the courts have held that the facts in said cases have been questions for the jury and not for the courts on motions of nonsuit, to-wit: Chesapeake O.R. Co. v. Ward'sAdmr., 145 Ky. 733, 141 S.W. 72; Bradley v. Central R. Co. ofNew Jersey, 84 N.J.L. 357, 86 A. 378; De Scheppers v.Chicago, R.I. P. Ry. Co., 179 Ill. App. 298; Schwartz v.Northern P. Ry. Co., 77 Wash. 44, 137 P. 317; Merwin v.Northern P. Ry. Co., 68 Wash. 617, 123 P. 1019; Murray v.Pennsylvania Ry. Co., 242 Pa. St. 424, 89 A. 557; Virgin v.Lake Erie W.R. Co., 55 Ind. App. 216, 101 N.E. 500; SeaboardAir-Line Ry. Co. v. Blackshear, 11 Ga. App. 579, 75 S.E. 902;Texas Midland R.R. v. Wiggins, (Tex.) 161 S.W. 445; New YorkS. W.R. Co. v. Thierer, 209 Fed. 316, 126 C.C.A. 242, 4 N.C.C.A. 718; Eaton v. Southern P. Co., 22 Cal. App. 461,134 P. 801. The plaintiff failed to make a case for the jury on either one of the grounds charged in his complaint. If, in the case at bar, it had been shown that the passenger train was running at a speed of sixty miles per hour in approaching and passing over the crossing, it would not have been evidence of negligence on the part of the defendant engineer in the handling and operation of his train. There is no pretense that the crossing was a dangerous one, or that the conditions were such, to the knowledge of defendants, as to require operation of the train, as to speed, different from the speed at which the train was driven at any other time. The crossing was an open one, out in the country, without any obstructions of a permanent character impairing the view along the tracks in either direction as far as the eye could see. That a view of the north track eastward in the direction from which the passenger train was coming was temporarily obstructed while the freight train was on the crossing, goes, of course, without saying. But it was the duty of the deceased to keep off the crossing until the receding freight train had passed along far enough to afford him a view along the adjacent track and assure himself of his personal safety before venturing upon the crossing; and the engineer had a right to assume that this precaution would be taken and act upon that assumption. (Baltimore Ohio R.R. Co. v. Goodman, 275 U.S. 66, 56 A.L.R. 645, 72 L. Ed. 167,48 Sup. Ct. Rep. 24; Atchison, T. S.F. Ry. Co. v. Schriver,80 Kan. 540, 24 L.R.A. (n.s.) 492, 103 P. 994; Klein v. United Rys. El. Co., 152 Md. 492, 137 A. 306.) In Pittsburgh, C.C. St. L. Ry. Co. v. Nichols, 78 Ind. App. 361, 130 N.E. 546, it is said: "The consensus of opinion seems to be that it is established as a general rule of law that liability for negligence cannot be predicated, solely on the running of a train at a high rate of speed over an ordinary grade crossing in the country. From that premise it follows logically, as a matter of good pleading, that the facts which make a particular crossing extraordinarily hazardous must be averred in the complaint. The broad averment that ``the defendant carelessly and negligently ran its train at a high and dangerous, reckless and unusual, rate of speed of from 60 to 70 miles per hour' is not sufficient." (See, also, Yancey v. Northern P. Ry. Co., 42 Mont. 342, 348,112 P. 533; Broat Lumber Co. v. Van Houten, 66 Mont. 478,213 P. 1116.)

Not only did the plaintiff fail to show negligence on the question of speed, but he equally failed to show that the crossing signals were not properly given. It will be conceded that failure to give the required signals may be shown by negative testimony, but it is now settled law in this state, as well as everywhere else in this country, that, as the principle was stated by this court in Grant v. Chicago, M. St. P. Ry.Co., 78 Mont. 97, 252 P. 382: "The attending circumstances must be such as to afford a reasonable opportunity to hear the warning signals." That case is conclusively determinative of the point here. There, the same as here, the trial court nonsuited the plaintiff because he had failed to make a case. There, the same as here, it was contended that the case should have been submitted to the jury on the question whether the requisite crossing signals had been given. Upon that issue, the testimony there that no signals were given was much stronger than it is here. There the plaintiff testified that he heard no noise as he approached the crossing and "did not hear anything to indicate the approach of a train as we proceeded down the highway towards the crossing"; and the plaintiff's witness, 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." (78 Mont., on p. 108, 252 P. 382.) Yet, the nonsuit was sustained and the judgment of the trial court entered thereon was affirmed because, said the court: "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." (Davis v. Payne,120 S.C. 473, 113 S.E. 325; Dodds v. Omaha etc. Ry. Co.,104 Neb. 692, 178 N.W. 258; Oliver v. Union P. Ry. Co.,105 Neb. 243, 179 N.W. 1017; Fayet v. St. Louis etc. Ry. Co., 203 Ala. 3,81 So. 671.) Here, as in the cases cited, all that was said by the witnesses on the subject of signals is that they did not hear any. There is no intimation from any or either of them that they were in a position, or that the surrounding circumstances and conditions, and their sense of hearing, were such that they would or could have heard them.

The decedent's negligence in failing to wait until the freight train had passed on far enough along the north track to afford him a view eastward along that track sufficient to ascertain whether a train was approaching, was the sole and only proximate cause of his injury and death. (Grant v. Chicago, M. St. P.Ry. Co., supra; Hunter v. Montana Central Ry. Co., 22 Mont. 525,57 P. 140.) "It is contributory negligence," said the court in Purdy v. New York Cent. etc. Ry. Co., 87 Hun, 97, 33 N Y Supp. 952, "to go on a railroad, where there are double tracks, after a train has passed, without waiting until it has gone sufficiently far to give a view of the other track." (George v. Northern P. Ry. Co., 59 Mont. 162, 196 P. 869, 870; Fletcher v. Fitchburg Ry. Co.,149 Mass. 127, 3 L.R.A. 743, 21 N.E. 302; Marty v. Chicago etc.Ry. Co., 38 Minn. 108, 35 N.W. 670.) This action was instituted by the plaintiff as the administrator of the estate of August Harry Rau, deceased, to recover the sum of $50,000 for the decedent's estate because of the injury and resulting death of August Harry Rau on September 10, 1928, by reason of the defendant company's alleged negligence in the operation of its trains across a public highway, "at a point about one mile easterly from the city of Billings." By answer, the defendant pleaded the contributory negligence of the decedent. Issue was joined by reply and the case was regularly brought on for trial before a jury. At the conclusion of the evidence offered by the plaintiff, the defendants moved the court for a nonsuit which was sustained, and judgment accordingly entered dismissing the action. A motion for a new trial was made by the plaintiff, which was by the court denied, and the plaintiff has appealed from the judgment.

The only question involved is whether the court erred in taking the case from the jury and granting a nonsuit.

It is alleged by the plaintiff in his complaint, and by the defendants admitted, that on or about the tenth day of September, 1928, the defendant company owned and was in possession of two railroad tracks extending easterly from the city of Billings side by side, commonly called double tracks; that there was a public highway extending in a general easterly direction from the city of Billings, which crossed the tracks of the railroad company in a northerly and southerly direction; that on the date mentioned August Harry Rau was traveling in an automobile along the highway, outside the corporate limits of any incorporated city or town, in a westerly direction towards the city of Billings; and as he reached the railroad crossing a freight train was moving easterly along the southerly railroad track; that when the deceased reached the crossing he brought the automobile he was driving to a full stop between ten and one hundred feet from where the highway intersects the railroad tracks; that when the freight train had passed over the crossing the deceased started to drive the automobile along the highway across the railroad tracks; and that as he reached the northerly track, and was crossing the same, he was struck by a locomotive attached to a train of passenger cars belonging to the defendant company, going westerly along the northerly track across the highway, as a result of which the deceased was severely injured, from which injuries he died. It is by the plaintiff further alleged, although denied by the defendants, that such passenger train was at the time and place being run at "a dangerous rate of speed, to wit, in excess of forty miles per hour"; that the defendants "carelessly and negligently permitted and caused said locomotive and passenger cars to approach and pass over said highway and railroad crossing without causing the whistle of said locomotive to be sounded at a point between fifty (50) and eighty (80) rods from said highway and railroad crossing, and carelessly failed to cause the bell of said locomotive to be rung from said point between fifty (50) and eighty (80) rods from said highway and railroad crossing until the said highway and railroad crossing was reached; and the said defendants carelessly and negligently failed to or at all, at any time before passing over said crossing, blow the whistle or ring the bell on said locomotive, and carelessly and negligently failed to give any warning or signal of any kind of the approach of said locomotive; and the said defendants did then and there carelessly and negligently run said locomotive against and collide with the automobile in which said August Harry Rau was riding, and the said August Harry Rau, and thereby inflicted grievous injuries upon him, from which injuries he soon thereafter died on or about the 10th day of September, 1928."

By way of affirmative defense, the defendants allege in their answer: "That as the deceased August Harry Rau approached said double tracks from the south there was an east bound freight train passing over said crossing on the southerly track, which train, while so passing, obstructed the view of said Rau towards the east of any west bound train that might be approaching on the northerly track, and also interfered with his ability to hear any train approaching west on the northerly track; that as the east bound freight train passed over said crossing the said Rau ran his automobile up within ten or fifteen feet of the southerly track and immediately after the caboose of said east bound freight train had passed over the traveled portion of said crossing the said Rau carelessly and negligently and without taking the measures and ordinary precautions to ascertain whether any west bound train was approaching on the northerly track, drove said automobile upon said tracks immediately behind said caboose without waiting until it had passed a sufficient distance east of said crossing for him to ascertain whether a train was approaching west on the northerly track and by reason of which carelessness and negligence said automobile was struck, and the said August Harry Rau instantly killed, and defendants therefore allege that the injury and death of the said August Harry Rau, * * *, was due to the contributory negligence of said deceased, as hereinbefore alleged."

We approach a decision of this appeal having in mind the[1, 2] settled rule in this state that a motion for a nonsuit is in effect a demurrer to the evidence, and in considering whether it should be granted every fact will be deemed proven which the evidence tends to establish, in light most favorable to the plaintiff's case. (Roberts v. Chicago, M. St. P. Ry.Co., 67 Mont. 472, 216 P. 332; Robinson v. F.W. WoolworthCo., 80 Mont. 431, 261 P. 253; Westerdale v. Northern P.Ry. Co., 84 Mont. 1, 273 P. 1051; Boyd v. Great NorthernRy. Co., 84 Mont. 84, 274 P. 293.) And no case should ever be withdrawn from the jury unless the conclusion necessarily follows, as a matter of law, that a recovery cannot be had upon any view which could reasonably be drawn from the facts the evidence tends to establish. (Nord v. Boston Mont. C.C. S.Min. Co., 30 Mont. 48, 75 P. 681; Conway v. Monidah Trust, 52 Mont. 244, 157 P. 178; Wagner v.Donald, 67 Mont. 114, 214 P. 1099.)

It appears from the evidence that the deceased was a farmer, twenty-four years of age, in good health, industrious, possessed of good habits, earning about $100 per month, and that as a result of the accident he sustained injuries from which he suffered pain and died on the day of the collision, when being taken by train to Billings, about one mile distant.

Jess Rawls, his wife and baby were, on the occasion of the accident, riding in an open Studebaker car driven by Mr. Rawls in a westerly direction along the highway towards the city of Billings. As they approached the crossing they stopped as a freight train was passing, going in an easterly direction at a speed of about twenty-five miles per hour. The car driven by the deceased was also headed towards Billings and was then stopped about forty feet ahead of them awaiting clearance by the freight train, although the deceased had left the motor of his car running. It was an open "Ford roadster" without any side curtains on it. The deceased had stopped his car about twenty feet from the southerly track and thirty-five to forty from the center of the northerly track. He did not start his car up until the freight train had passed the crossing a distance of seventy-five or eighty feet; then started his car up at a rate of about five miles per hour and kept going until struck by the defendant company's locomotive. The engine hit the right rear wheel of the Ford car and carried the car until it struck a telephone pole, where it was whirled around and tore down a cattle-guard. The car was a complete wreck and the decedent was found badly injured, bruised and bleeding. The train, after striking the decedent's automobile, went on for a distance of a "good quarter of a mile before it came to a stop." The tracks were straight towards the east. The deceased was driving slowly and had traveled about thirty-five or forty feet before he was struck by the oncoming east-bound passenger train. The distance between the two tracks from center to center is thirteen feet and the distance between the rails of each track is four feet eight inches. The witness estimated that the passenger train was going at a rate of sixty miles per hour, but on cross-examination stated that this was "of course, merely an estimate." Jess Rawls testified that, after the freight train had passed, the deceased started the car which he was driving in low gear across the tracks, and that the witness then saw the "passenger train locomotive come out from the rear end of the caboose of the freight train." The witness said that the freight train seemed to pick up speed as it went over the crossing and was going at a rate of about twenty or twenty-five miles an hour, and it had gone approximately seventy-five or eighty feet in clearance of the crossing before the deceased started to move his automobile. He testified that both he and the deceased started their cars preparatory to crossing the railroad tracks at about the same time after the freight train had cleared the south track; that he, after going about five to ten feet, again stopped his car as soon as he observed the head of the passenger train "come out from behind the caboose," and that the deceased kept going. Explaining the situation he says that "of course, during this time, while this freight train was passing the south track, the track beyond, the north track, was obscured from me. It did not become visible until the caboose had passed from the crossing and was proceeding — had proceeded on eastward. I stated this morning in answer to a question asked me by Mr. Tyvand, that my vision along the track, that is, beyond the caboose, after the caboose had cleared the crossing, was more restricted — that is, my view in the direction from which the passenger train was coming, than the view that Mr. Rau would have inasmuch as he was nearer to the railroad track. As he proceeded onward and got to the south track, by that time the rear end of the freight train — in fact the rear end of the caboose had proceeded some distance to the east, and from that point on, of course, his view in the direction in which the freight train was going and in the direction from which the passenger train was coming was quite a little more than what it had been before I started. Every foot would make two or three feet difference down the track, yes, sir. I would say it probably would make more difference than two or three feet." He estimated that, from thedeceased's position, the latter could see to the eastward along the northerly track a distance of about 200 feet at the time he attempted to cross the tracks. While waiting for the freight train to pass, the witness and his wife were engaged in conversation, and did not pay any particular attention to the length of time. He testified: "It might have been two minutes or ten, I could not say. We sat there and visited, but how long I don't know. My wife and I visited; I didn't visit with the other man." He further testified that he did not hear any whistle of a locomotive of any train coming from the east, and did not hear any bell rung, and that the deceased started his car up in low in ordinary manner.

Mrs. Rawls testified that she would say the passenger train was running at sixty miles per hour, but did not know how fast the freight train was going when passing over the crossing. All that either of them could say as to the giving of crossing signals by whistle or bell was that they did not hear any.

William Schwartz testified that he was at his mother's place "around 80 rods from the crossing." He went to his mother's house to get something and left his automobile on the right of way with the motor running and remained in the house about ten minutes. He saw the passenger train go by when he was there; it was going fast but he could not say just how fast. "Just as a guess" he would say sixty miles per hour. However, he said, "It is merely a guess I am making as to the speed of the train from the casual observation I made of the two trains." As to the giving of the crossing signals, he said he did not hear any. However, he stated that he gave the passing trains "just a casual glance. * * * There was nothing out of the ordinary in the movements of the two trains. I would not say that there was because I did not observe enough."

So far as here applicable, the statute provides that no[3] railroad "shall permit any locomotive to approach any highway, road, or railroad crossing, without causing the whistle to be sounded at a point between fifty and eighty rods from the crossing, and the bell to be rung from said point until the crossing is reached" (sec. 6521, Rev. Codes 1921), and evidence which shows a violation of this statute by reason of failure to give the required signals of the approach of trains at crossings, makes out a prima facie case of negligence. (Hunter v. MontanaCentral Ry. Co., 22 Mont. 525, 57 P. 140; Sprague v.Northern P. Ry. Co., 40 Mont. 481, 107 P. 412; De Atley v. Northern P. Ry. Co., 42 Mont. 224, 112 P. 76; Walters v. Chicago etc. Ry. Co., 47 Mont. 501, 46 L.R.A. (n.s.) 702, 133 P. 357.) Negative testimony is sufficient to take the case to the jury. (Riley v. Northern P. Ry. Co., 36 Mont. 545,93 P. 948; Mullery v. Great Northern Ry. Co., 50 Mont. 408,148 P. 323; Grant v. Chicago etc. Ry. Co., 78 Mont. 97,252 P. 382, 385.)

Under the provisions of the statute, "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. P.S. Ry. Co., 47 Mont. 501, 46 L.R.A. (n.s.) 702, 133 P. 357; Riley v. NorthernP. Ry. Co., 36 Mont. 545, 93 P. 948; Mullery v. GreatNorthern 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 Ry. Co. of NewJersey, 78 N.J.L. 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 * * * to hear the warning signals." (Grant v. Chicago etc. Ry. Co., supra.)

Here we have testimony of negative character of but little evidentiary value, in view of the surrounding circumstances, namely, the passing of trains over the tracks and noise incident thereto, the running motor of the automobile driven by deceased when stopped to permit the freight train to clear the south track and noise in consequence, the existence of the north track, and the danger of a train passing over it, all of which placed upon the deceased a duty to exercise greater diligence, with due regard for his own safety, in attempting to cross the tracks. Conceding the sufficiency of such negative testimony to establish the fact, yet the statute did not excuse the deceased from the exercise of at least ordinary care for his own safety. (Hunter v. Montana Cent. Ry. Co., supra; Sprague v. Northern P.Ry. Co., supra; Everett v. Hines, 64 Mont. 244,208 P. 1063.) While negative evidence may be sufficient to establish the fact that the required signals were not given, yet the character of testimony introduced in this case, standing alone, is not such as to relieve the plaintiff from showing that deceased exercised such care.

"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. (Chicago R.I. Ry. Co. v. Still, 19 Ill. 499, 71 Am. Dec. 236; Atchison etc. Ry. Co. v. Hague,54 Kan. 284, 45 Am. St. Rep. 278, 38 P. 257; Northern Cent. Ry. Co. v. State, 100 Md. 404, 108 Am. St. Rep. 439, 3 Ann. Cas. 445,60 A. 19; Cotton v. Willmar etc. Ry. Co., 99 Minn. 366, 116 Am. St. Rep. 422, 9 Ann. Cas. 935, 8 L.R.A. (n.s.) 643, 109 N.W. 835; Holmes v. Pennsylvania R. Co., 74 N.J.L. 469, 12 Ann. Cas. 1031, and note, 66 A. 412; Foley v. New York Cent. etc.Ry. Co., 197 N.Y. 430, 18 Ann. Cas. 631, and note, 90 N.E. 1117;Keiser v. Lehigh Val. R. Co., 212 Pa. 409, 108 Am. St. Rep. 872, 61 A. 903; Anspach v. Philadelphia etc. Ry. Co.,225 Pa. 528, 28 L.R.A. (n.s.) 382, note, Ann. Cas. 1916A, 163, 74 A. 373; Baltimore O.R. Co. v. Roming, 96 Md. 67,53 A. 672; Culhane v. New York Cent. etc. Ry. Co., 60 N.Y. 133.)" (White v. SouthernRy. Co., 151 Va. 302, 144 S.E. 424, 427.)

As was aptly said by this court: "The attendant circumstances must be such as to afford a reasonable opportunity to hear the warning signals." (Grant v. Chicago, M. St. P. Ry. Co., supra.)

"Every person is bound to an absolute duty to exercise his[4] 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." (Sherris v. Northern P.Ry. Co., 55 Mont. 189, 175 P. 269, 271; Normandin v.Payne, 65 Mont. 543, 212 P. 285, 286.)

"A person approaching a railroad crossing is required 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. (Chicago,R.I. P.R.R. Co. v. Houston, 95 U.S. 697, 24 L. Ed. 542 [see, also, Rose's U.S. Notes]; Hunter v. Montana Cent. Ry. Co.,22 Mont. 525, 57 P. 140.) 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. (George v.Northern P. Ry. Co., 59 Mont. 162, 196 P. 869; Keith v.Great Northern Ry. Co., 60 Mont. 505, 199 P. 718.)" (Normandin v. Payne, supra.)

"The rule as to the caution with which one must approach a railroad crossing in this state without being guilty of negligence has been thoroughly established, and requires a person to use his senses vigilantly to determine whether or not a train is approaching, before he goes upon the track. This requires that he use his eyes and ears, and, if necessary to make his looking and listening reasonably effective, he must stop at such point as will accomplish that purpose." (Keith v. Great Northern Ry.Co., 60 Mont. 505, 199 P. 718.)

Upon the facts appearing in this case, our views are in accord[5, 6] with those expressed by the supreme court of Ohio, namely: "When a passing train is upon the track nearest to the traveler, and one or more parallel tracks are beyond this track, the traveler on the highway must give heed to the fact that a fast moving train may be approaching the crossing in the opposite direction from that in which the train on the first track is moving, which may be entirely concealed from the view of the traveler by the moving train then occupying the crossing; and it is not the exercise of ordinary care for his own safety on the part of the traveler to await only until the passing train shall have cleared the crossing and then to go forward without waiting to ascertain whether another train is approaching the crossing on a track beyond that of the passing train. Time must be given to permit the passing train to get so far beyond the crossing that the traveler, while halted in a place of safety, may be afforded a clear view of the track or tracks in both directions, that he may thereby know whether a moving train is in close proximity to the crossing thereby endangering any attempt he may make to cross the tracks in front of such approaching train. The omission of such caution on the part of the traveler will constitute contributory negligence on his part sufficient to bar any recovery for damages against the railway company for injuries which he may sustain in a collision with a train, due to his omission to exercise the caution stated; and this is true, notwithstanding the fact that the employees of the railway company have neglected to give the signals of the train's approach to the crossing, required by law to be given." (Pennsylvania R. Co. v. Rusynik, 117 Ohio, 530, 56 A.L.R. 538, 159 N.E. 826, 828.)

In our opinion, in the absence of testimony in justification, it constituted contributory negligence for the deceased to go upon the railroad tracks at the crossing as he did without waiting until the freight train had gone sufficiently far in clearance of the crossing to give him an unobstructed view of the other track. (George v. Northern P. Ry. Co., 59 Mont. 162,196 P. 869; Purdy v. New York Central H.R.R. Co., 87 Hun, 97, 33 N.Y. Supp. 952.)

"While a case should never be withdrawn from the jury unless[7] it appears as a matter of law that a recovery cannot be had upon any view of the facts which the evidence reasonably tends to establish, yet, when there is no evidence in support of plaintiff's case, or the evidence is so unsubstantial that the court would feel compelled to set aside a verdict if one should be rendered for plaintiff, a nonsuit should be granted. (Loudon v. Scott, 58 Mont. 645, 12 A.L.R. 1487, 194 P. 488.)" (Grant v. Chicago etc. Ry. Co., supra.)

However, when, as in the action now before us, "the[8] plaintiff's own case presents evidence which, unexplained, makes out prima facie contributory negligence upon his part, there must be further evidence exculpating him or he cannot recover. (Hunter v. Montana Cent. Ry. Co., 22 Mont. 525,57 P. 140; Harrington v. Butte, A. P. Ry. Co., 37 Mont. 169, 16 L.R.A. (n.s.) 395, 95 P. 8; Longpre v. Big BlackfootMilling Co., 38 Mont. 99, 99 P. 131; Meehan v. GreatNorthern Ry. Co., 43 Mont. 72, 114 P. 781; Molt v. NorthernP. Ry. Co., 44 Mont. 471, 120 P. 809; Neilson v. MissoulaCreamery Co., 59 Mont. 270, 196 P. 357; George v. NorthernP. Ry. Co., 59 Mont. 162, 196 P. 869; Cameron v. JudithM. C. Co., 61 Mont. 118, 201 P. 575; Puckett v. Sherman Reed, 62 Mont. 395, 205 P. 250; Haney v. Mutual CreameryCo., 67 Mont. 278, 215 P. 656; Holland v. Pence AutomobileCo., 72 Mont. 500, 234 P. 284.)" (Grant v. Chicago etc. Ry.Co., supra.)

"It is the rule also," said the late Mr. Chief Justice Brantly, speaking for this court, "that when the circumstances attending the injury, as detailed by the plaintiff's evidence, raise a presumption that he was not, at the time, in the exercise of due care, he has failed to make out a case for the jury. The burden is then upon him, and if he fails to introduce other evidence to remove this presumption, he is properly nonsuited. (Cases cited supra; Harrington v. Butte, A. P. Ry. Co.,37 Mont. 169, 16 L.R.A. (n.s.) 395, 95 P. 8; Longpre v. BigBlackfoot Milling Co., 38 Mont. 99, 99 P. 131; Zvanovich v.Gagnon Co., 45 Mont. 180, 122 P. 272.)" Then, after referring to the rule stated above in the case of Sherris v.Northern P. Ry. Co., that learned jurist said: "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. (Chicago, R.I. P.R.R. Co. v. Houston,95 U.S. 697, 24 L. Ed. 542 [see, also, Rose's U.S. Notes]; Hunter v. Montana C. Ry. Co., 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." (George et al. v. Northern P. Ry.Co., supra.)

Whether one is or is not familiar with a crossing does not[9] affect the rule that he must exercise a vigilant use of his senses to ascertain whether it is safe to proceed. After the freight train passed, deceased started his car at the rate of five miles an hour towards the crossing. The north track, where the collision occurred, was at least thirty feet distant. Had he looked, he would have seen the passenger train approaching. He had ample room in which to stop his car before reaching the north track. As a matter of fact he could have stopped at or before reaching the south track, at which point he was on a level and had vision of a straight track to the east for a great distance. Rawls, who was forty feet behind deceased, and unable to see as far down the track as deceased could see, saw the train coming after he had moved his car from five to ten feet, and stopped. And it must be recalled from the testimony that both Rawls and the deceased started their cars up preparatory to crossing the track at the same time. Before deceased reached the track he could have seen down the track 200 feet; but evidently he did not look. On the contrary, he drove on to the track, careless of his own safety, or possibly having the notion he could beat the train.

In our opinion the plaintiff has failed to sustain the burden which rested upon him to show that the deceased exercised ordinary and reasonable care for his own safety at the time of the accident. The plea of contributory negligence is sustained by the plaintiff's own evidence, and therefore the motion of the defendants for a nonsuit was properly granted.

The district court, following the rules long settled in this state, was in duty bound to take the action it did.

Upon further earnest study and consideration of the record in this case, upon the defendants' motion for a rehearing and plaintiff's objections thereto, the original opinion is withdrawn and this opinion substituted.

The motion for a rehearing having fully served its purpose, a rehearing is denied.

For the reasons stated the judgment will stand affirmed.

MR. CHIEF JUSTICE CALLAWAY and MR. JUSTICE MATTHEWS concur.