Broberg v. Northern Pac. Ry. Co.

Any further discussion of the evidence would uselessly prolong this decision. Suffice it to say that from a study of the record, I am convinced that the majority are in error in not holding that, (1) the defendants were not negligent and, (2) the negligence of the driver of the automobile involved was the sole proximate cause of plaintiff's injury. In the first place it was not shown that the crossing in question was unusually hazardous, which it must have been to permit recovery. This crossing is an ordinary country crossing, and no peculiar and unusual facts and circumstances or peculiar environment have been shown to exist to bring the case within the holding in the Jarvella case, supra. There is evidence that the road surface was dark in color, and for that reason tended to absorb the lights ahead of the automobile. But if such circumstance is to constitute this crossing unusually hazardous, then every railroad crossing of an oiled highway in Montana is likewise unusually hazardous. The facts and circumstances of the two cases are dissimilar; additionally, the Jarvella decision was based, at least in part, upon the practice of the railway company in maintaining a watchman at the crossing during a part of the day, this constituting, according to the court, a recognition by the company that the crossing was extraordinarily dangerous.

The rule is that a train standing on or moving over a crossing is effective and adequate warning in itself without warning signals. If the driver of the automobile here involved told the truth about the condition of the headlights, there is no escape from the conclusion that she was negligent. In spite of her testimony that the lights were standard and in good condition, as to the collision she stated, "The first thing I noted, the car was right in my face and of course I put my brakes on." It is obvious that the driver failed in her duty to exercise her intelligence to discover and avoid dangers that may have threatened her. Incret v. Chicago, M., St. P. P.R. Co.,107 Mont. 394, 86 P.2d 12.

I might have taken a different view had the train been approaching rather than on, the crossing as the automobile approached it. But under the facts presented the collision was caused by the driver's negligence. Since I think that the crossing was not shown to be unusually hazardous, the defendants were not guilty of negligence in any respect; consequently I believe that the motions for nonsuit and directed verdict should have been granted, and that the judgment should now be reversed.