Meehan v. Great Northern Railway Co.

MR. JUSTICE SMITH

delivered the opinion of the court.

This cause was submitted to the district court of Silver Bow county, sitting without a jury, upon an agreed statement of facts. The court found in favor of the defendant Great Northern Eailway Company (the other defendants having been dismissed from the action), and judgment was entered accordingly. From that judgment, an appeal has been taken.

From the statement it appears that two tracks of the defendant company, known as the “Stockyards” and “Y” tracks, extend through the city of Butte; that Warren avenue, so-called, extends from a northerly direction up to the right of way of the railway company in the vicinity of these tracks; that there is another street' called Warren avenue, extending up to the right of way of the defendant company on the opposite side of the tracks, but which, if extended, would not connect with the first-named Warren avenue; that neither of said streets has been extended as a public highway across the tracks of the defendant, and the intervening space has never been dedicated to public use as a highway. It appears, however, that “for a period of at least fifteen years that portion of said ground over which said ‘Stockyards’ track and ‘Y’ track are constructed. *77 which lies between the lower ‘ Y’ switch and the ‘Stockyard’ switch in said track have been continually used, without any invitation from, but with the knowledge of, said railway company and. its officials, by the people of that vicinity as pedestrians, for the purpose of crossing on foot from that portion of said city lying easterly and northeasterly from said tracks, to that portion lying on the southerly and southwesterly side thereof, and especially by large numbers of miners in going to and from their homes and to and from the mines northeasterly thereof, and to and from the Western Iron Works and other industries in which they are engaged; that while said crossings have been made by such persons indiscriminately at various points between said switches, the great number of said crossings has been made along a beaten footpath, and over a strip of ground which would have been within the limits of Warren avenue if it had been extended southerly or southwesterly ; that said tracks during all the times herein mentioned were, and still now are, built upon a railway grade or roadbed, the slope of which toward said Western Iron Works was and is about two feet vertically at the place where the deceased was killed, and varies’in other places from two to four feet as regards that portion thereof facing the Western Iron Works, and the length of said slope is about five feet from the ties to the level of the surrounding country, and the slope of the roadbed facing away from the Western Iron Works is about four feet deep vertically, with a length of slope of about ten feet; that John Meehan, deceased, left the saloon of John Skubitz at some time after midnight of October 6, 1908, intending to go to his cabin, which was then located in the vicinity of the buildings of the Largey Lumber Company (on the opposite side of all the Great Northern Eailway tracks), and upon leaving said saloon stated to Skubitz: ‘I am going up Warren avenue where I will only have two tracks to cross, and will avoid the rough travel and the danger of all the switching while crossing the yards’; that no one saw the deceased after he left the saloon, until about 3 o’clock on the following morning, when he was found lying across the ‘Y’ track aforesaid, with one leg across said track’; *78 the leg had been run over and cut off, and the other leg broken by some car or cars of the Great Northern Railway Company, in consequence of which he was then in a dying condition, and subsequently died within a few hours; that the train of cars mentioned constituted the only cars or car or engine, or other vehicle, owned or operated by the Great Northern Railway Company or its employees, that was on any part of said ‘Y’ track on the night of October 6 or the morning of October 7; that a passenger train of the defendant company backed over the ‘Y’ switch on the night in question until the rear ear thereof had reached a point beyond the point where the deceased was found ; that neither on the night of October 6 nor the morning of October 7 was any portion of said ‘Stockyards’ or ‘Y’ track lighted by any means of illumination furnished by the railway company, but that during the whole of said night an arc-light of the same size and capacity as is used elsewhere in the city of Butte for street lighting purposes was located at a point about 300 feet distant from the place where the deceased was found; and said light was actually burning and giving the amount of light given by ordinary street electric arc-lamps; that in backing said train the trainmen did not blow the whistle at all, nor ring the bell at all; that there was an acetylene gas-light on the outside of and in the cupola of the rear platform of the rear car of the train, which was an observation car, said light being intended to light the rear platform thereof and being equal to about a thirty-two candle.-power electric-light, and the entire rear portion of said rear car consisted mainly of large windows and a door with full glass panels, but that no other lamps were on the outside of the rear end of said car as it backed down, nor was any brakeman or other employee of the defendant company stationed upon said rear car; that neither the railway company nor any of its employees discovered the presence of deceased on the track or learned of his death until four hours after he was found; that at the time the rear car of the train was going over the lower ‘Y’ switch, backing as aforesaid, it was running at a rate of four miles an hour, and thereafter the speed of said train was proportionately reduced from four miles an hour to *79 a dead stop; that no obstructions of any kind existed at the time aforesaid within a circle with a radius of 200 feet, with a center at the point where said deceased was found, and no obstructions and no buildings or other structures of any kind existed on the ground lying between the track extending from said lower *Y’ switch to the ‘Stockyards’ switch, in a southerly direction to the south line of Second street, except as indicated; that at the time in question the Great Northern Railway Company had in force the two following rules: ‘ (1) The engine bell must be rung when an engine is about to move, also when running through tunnels and the streets of towns or cities, and for a quarter of a mile before reaching every public road crossing at a grade and until it is passed; (2) When a train is being pushed by an engine, except when shifting and making up trains in yards, a trainman must be stationed in a conspicuous position on the front of the leading car with the proper signals, so as to perceive the first sign of danger, and immediately signal the engineman’; that the night of October 6 and the early morning of October 7 were clear and windy, and the weather was fair; there was no precipitation; that persons who were in the vicinity of the place where Meehan was killed, differ as to whether it was cloudy and dark, or clear and bright.” It was further agreed that the judge of the district court might inspect the premises where Meehan was killed, and the observation car which ran over him. We presume the learned judge made the inspection.

It is contended on the part of the appellant (1) that the place in question was a “prescriptive highway”; (2) that, if not a prescriptive highway, the evidence shows a highway by common-law dedication; (3) that, if it was not a highway, the railway company owed to the deceased the same duty of .exercising ordinary care for his safety as would have been the case had it been a highway, on account of the fact that he was a licensee upon its tracks. We do not, however, find it necessary to decide the questions involved in these contentions, because we are of opinion that, assuming that the defendant was guilty of a want *80 of ordinary care, the district court was justified in concluding that the plaintiff had failed to overcome the prima facie showing of contributory negligence on the part of deceased disclosed by the facts and circumstances embodied in the agreed statement.

In actions for personal injuries the absence of contributory negligence is not required to be pleaded or proved by the [1] plaintiff, but its presence is a matter of defense. (Higley v. Gilmer, 3 Mont. 90 , 35 Am. Rep. 450; Nelson v. City of Helena, 16 Mont. 21 , 39 Pac. 905 ; Mulville v. The Pacific Mut. Life Ins. Co., 19 Mont. 95 , 47 Pac. 650 ; Hunter v. Montana Central Ry. Co., 22 Mont. 525 , 57 Pac. 140 ; Snook v. City of Anaconda, 26 Mont. 128 , 66 Pac. 756 ; Ball v. Gussenhoven, 29 Mont. 321 , 74 Pac. 871 ; Nelson v. Boston & Mont. C. C. & S. Min. Co., 35 Mont. 223 , 88 Pac. 785 ; Birsch v. Citizens’ El. Co., 36 Mont. 574 , [2] 93 Pac. 940 .) The law presumes that a person exercises ordinary care for his own safety. (Rev. Codes, sec. 7962, par. 4; Monson v. La France Copper Co., 39 Mont. 50 , 133 Am. St. Rep. 549 , 101 Pac. 243 .) However, as was said by this court in Harrington v. Butte etc. Ry. Co., 37 Mont. 169 , 95 Pac. 8 , 16 L. R. A., n. s., 395: “When the plaintiff’s own case presents evidence which, if unexplained, would make out prima facie contributory negligence on his part, there must be further evidence exculpating him, or he cannot recover.”

Whether we regard the agreed statement of facts as constituting the plaintiff’s case alone, or that of both parties, which is perhaps more nearly the fact, the result is the same. On its face it discloses a case of unexplained contributory negligence on the part of the deceased. Let us remember that the railroad tracks were in themselves a warning of danger. Meehan was on foot, and there was nothing to divert his attention. Not only that, but he had in mind the necessity of crossing the tracks when he left the saloon, and in order to get upon them he was obliged to climb an embankment of some height. Even though [3] it be conceded that the defendant company negligently omitted to light its tracks, and that its employees neglected to give the required signals, it was nevertheless the duty of Meehan *81 to make a vigilant use of his senses; to look or listen, and to stop for that purpose, if necessary, to learn if there was danger. (Hunter v. Montana Central Ry. Co., supra.) He was bound [4] to look and listen before attempting to cross the tracks, and not to walk carelessly into a place of danger. What situation do the surrounding facts and circumstances disclose ? The train was backed down to the place of the accident at a very slow rate of speed, so slow, indeed, that a man might easily walk ahead of it in safety; there was a city arc-light at a point not to exceed 300 feet away, and we take notice that such a light [5] will east its rays much farther than 300 feet; the train consisted of several cars, besides the locomotive, and must have made some noise, even at the slow rate of speed at which it was proceeding; railroad ears are large objects, easily discernible by electric-light; added to this there was an acetylene gas-light in the cupola on the outside of the observation car, which was intended to, and, as we know from every-day experience, does light the rear platform of the car; there were no obstructions of any kind to interfere with the power of observation of the deceased, and no buildings or other structures which would tend to form a dark background to the ears as they approached. We are impelled to the conclusion that Meehan neither looked, listened, nor took any precautions for his own safety. Had he used his senses, he could not have failed both to hear and to see the approaching train. Having omitted to use them, he was guilty of contributory negligence, and the district court properly so held.

The judgment is affirmed.

'Affirmed.

Mr. Chief Justice Brantly and Mr..Justice Holloway concur.