DocketNumber: No. 7,621.
Citation Numbers: 65 P.2d 1185, 104 Mont. 181
Judges: MR. JUSTICE MORRIS delivered the opinion of the court.
Filed Date: 2/24/1937
Status: Precedential
Modified Date: 1/12/2023
I agree that ordinarily this court will not review the giving of an alleged erroneous instruction in the absence of the evidence in the case. There is, however, an exception to the rule. That exception was pointed out in State v. Mason,
Nor will it do to say that this court is unable to say whether the instruction was prejudicial without having the evidence before us, for the court has held that where error appears prejudice will be presumed. Thus in Parrin v. Montana CentralR.R. Co.,
Were the instructions complained of erroneous? I think they were. They placed too great a burden upon plaintiff. The obligation resting upon one who is about to cross a railroad track, so far as looking is concerned, is to exercise care to make his looking reasonably effective. (Sprague v. NorthernP. Ry. Co.,
Instruction No. 21 charged the jury that it was incumbent upon plaintiff to make his looking effective. This court has held that it is error to charge an absolute duty, whereas the law simply requires but reasonable care. (Markinovich v. Northern P.Ry. Co.,
Instruction No. 22 also placed too high a burden upon plaintiff, in that it made the duty to look a continuing one "until the danger" was "past," whereas all that was incumbent upon him was to use reasonable care by looking and listening to make reasonably certain that no train was approaching before attempting to cross the track. Also the instruction, at least by implication, charged that even though the defendants' negligence was the proximate cause of plaintiff's injuries and damage, if plaintiff's failure to look until the danger was past "contributed in any way as a proximate cause," then the verdict must be for the defendants. I think the instruction was incorrect in this respect also. *Page 188
It is difficult to suppose a state of facts where the jurors, if they followed these instructions, could possibly find for plaintiff in a case based upon injuries sustained at a railroad crossing. I can conceive of no set of circumstances making these instructions correct, and therefore think the court committed reversible error in giving them, and that it is not necessary for us to have the evidence before us to so hold.
I realize that there are cases holding that without the evidence we cannot say that the correct result was not reached. The case of Morgan v. Bankers' Trust Co.,
I cannot subscribe to the view that, in the absence of the evidence, we should indulge the presumption that the court may have committed error against the defendants, rendering erroneous instructions harmless. *Page 189