I dissent. I believe the facts of this case do not warrant the conclusion of the majority that the testimony on behalf of the plaintiff was mere negative testimony within the rule stated in the majority opinion. There is more here than a mere "I did not hear it" statement.
The true rule to be applied as to negative testimony under facts like these was stated by this court in Riley v. NorthernP. Ry. Co., 36 Mont. 545, 93 P. 948, 952, as follows: "On the part of the defendant there was positive testimony that the bell was ringing and the light burning. The plaintiff's witnesses *Page 111 simply testified that they did not hear any bell or see any light. Appellant argues that this negative testimony is of no weight, in view of the positive testimony opposed to it. Ordinarily, when one witness testifies positively that a certain thing existed or happened, and another witness, with equal means of knowing, testifies that the thing did not exist or happen, the so-called negative testimony is so far positive in character that a court could not say that it was entitled to less weight than the affirmative testimony."
The majority cites Grant v. Chicago, M. St. Paul Ry.Co., 78 Mont. 97, 252 P. 382, and Rau v. Northern P. Ry.Co., 87 Mont. 521, 289 P. 580, as authority for the conclusion that the testimony of plaintiff's witnesses as to the sounding of the whistle and the ringing of the bell is the type of negative testimony that the court must say, as a matter of law, is of no evidentiary value. In the Grant Case the facts were wholly dissimilar from those in the present case. There the whistle, if blown, was blown at a point from 825 to 1,320 feet distant from the crossing, while here the whistle, if blown, must have been blown at a point within 150 feet of the crossing. The opportunity for the witnesses to hear the whistle, if sounded, was much greater than in the Grant Case. However, I do not agree with the decision in that case in its application of the rule on negative testimony.
The Rau Case has no force in sustaining the conclusion of the majority. The rule was stated in that case, but the court did not hold that the negative testimony was of such a character that it had no evidentiary value and should, therefore, be excluded; but the court said: "Here we have testimony of negative character of but little evidentiary value, in view of the surrounding circumstances." And the court goes on to say: "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." The Rau Case was decided on the basis of the contributory negligence of the deceased, and was in no way based on the theory *Page 112 that the evidence of the witnesses was of such a negative character as to make it valueless.
Mrs. Sullivan and her son were within at most 200 feet of the locomotive and traveling at a low rate of speed. They both testified on the stand that the windows of the car were open and that their hearing was good. By that testimony it seems to me clear that they have shown that the facts fit what was said in the Riley Case, and if what the majority has said stands, then I do not see how in any case the non-existence or non-happening of any thing or event can ever be proven, if there is positive testimony that it did exist or happen. The witnesses were in the very position of the traveler whom the signal was meant to warn. If they could not hear it had it been given, it would seem the requirement that any signal be given is a foolish one, and every traveler must proceed on the assumption that none will be given because even if given it would be so weak that he could not hear it.
Now let us see how strong the positive testimony on this point and others is. First, it is testified by defendant's witnesses that the engine did not stop; yet there is abundant testimony by them that as they approached the semaphore they had to signal a towerman some two blocks away for the board, and that until they got it they had to wait before proceeding past the semaphore tower. In other words, they testified, in effect, that it was the usual practice, or at least it often happened, that they had to stop right where the plaintiff and her son said they were stopped. The witness Stewart is the only one who testified that he did not stop between Warren and Garden Avenues; while the witness Noonan, one of the crewmen, says: "As I recall it the engine gave one long whistle for the semaphore and got it and it was answered by two and then we proceeded on down." That testimony certainly raises the inference that they did stop west of the semaphore and did not proceed until the semaphore arm was raised. The same inference is raised by the testimony of the witness Hadrath, a member of the train crew. *Page 113
As to what whistles were blown, and where and when, there is also conflict among the defendant's witnesses. The engineer Stewart testifies to a series of short, sharp blasts just a moment or two before the collision. No other member of the crew testifies to this. They all say that he gave just the usual crossing signal. None of them, except Stewart, presumes to say where the signal was given, and much of their testimony indicates that no signal at all was given after crossing Warren Avenue. Instead of their testimony being clear, convincing, uncontradicted and corroborated, it is confusing, unconvincing and uncorroborated, and most of it starts with, "As I remember it," or "As I recall it," or "We usually do this or that."
The testimony represents the typical situation of a clear conflict in the evidence, and the district court properly submitted the matter to the jury. The circumstances support the testimony of the witnesses for the plaintiff as well as they support the testimony of defendant's witnesses.
The majority opinion states that this court has consistently adhered to the rule that questions of credibility are for the jury alone. That may have been true in the past, but the majority opinion apparently signals the end of that adherence when it says that the testimony of the plaintiff and her witnesses is of the type considered in the Casey Case, 60 Mont. 56, 198 P. 141. The only contradictions in statements made by the plaintiff — and they are not substantial — occur between the written statement she signed the day after the collision, and her testimony on the stand. That statement was prepared by an agent of the defendant and was signed by plaintiff when all of the testimony shows that she was in a very bad mental state. She was told that she would be taken care of if she signed it, and she testifies that she did not read it before signing it. On the stand she testified directly on the points contained in the statement, and her testimony was clear, direct and corroborated by other witnesses. She told the same story consistently on the stand, and cross-examination failed to weaken her testimony.
The majority, in applying the rule of the Casey Case, finds contradiction between her first statement and her testimony on *Page 114 omissions in the first statement, the one prepared by the agent of the company. As I have said, under the circumstances that statement should receive little or no consideration by this court or any other, but even if it is considered I cannot see that an omission to say that she saw the locomotive would show the type of contradiction contemplated in the Casey Case.
Much is made of the fact that in the signed statement it is said her car window was closed on the side from which the locomotive approached, while on the stand she testified it was open. Her testimony on the stand was corroborated by the clear, convincing testimony of the other passenger in the auto, her son. Nowhere in her testimony was there a single element of that willful misstatement, contradiction and general fitting of the testimony to suit the developments of the case that exist in theCasey Case, and to discredit her testimony as is done by the majority does violence to every rule affecting the question of the credibility of the witnesses and announces to the litigants, the bar and the courts of Montana that it shall be the duty of the trial court to exclude the testimony of every witness as soon as any slight variance occurs between what a witness has said some time in the past, and what he says on the stand, and his testimony must be excluded even where he failed to say something in the past and later says it on the witness stand.
I cannot see that Normandin v. Payne, 65 Mont. 543,212 P. 285, cited in the majority opinion, is authority for the conclusion that if the locomotive were standing still, and if plaintiff saw it, she had no right to proceed in reliance on defendant's performing its duty of warning her by appropriate signals. In that case the view of the track was unobstructed for a half mile each way; plaintiff's car was not under control, and no element of the question of the traveler's duty on seeing a train standing still or slowly approaching appears. Neither can I see that any of the other cases cited with the Normandin Case in support of this conclusion are in point. In none of them does the element of a standing locomotive or a slow moving locomotive occur. In fact, in each of these cases the case is determined *Page 115 on facts where there was a rapidly moving engine and the plaintiff did not look at all for it.
I agree with what the majority says as to the duty of the traveler in approaching a railroad crossing; however I think the rule is better stated in Everett v. Hines, 64 Mont. 244, 245,208 P. 1063, 1068. After stating the substance of the GeorgeCase, cited by the majority, and others, it brings the Montana rule in harmony with the rule in all other jurisdictions, when the court says: "But no more is required than that he shall exercise such degree of vigilance and caution to avoid accident as a reasonably prudent man would do under like circumstances."
One of the circumstances which must be considered in determining the duty of the plaintiff here is the presence of a standing locomotive. On appeal we must take the most favorable view of plaintiff's testimony and must conclude that the locomotive was standing still. The rule is that the presence of a standing locomotive discovered by plaintiff reduces the degree of care she must exercise, as she may rely on the engineer giving the necessary signals before starting up the engine. The leading and almost universally accepted case on this point is UnitedStates Director General of Railroads v. Zanzinger, (4 Cir.) 269 Fed. 552, 554. There a pedestrian saw a standing locomotive and, relying on the signals being given, proceeded on to the crossing without again looking at the engine. The court said: "But the degree of intentness of looking and listening requisite to constitute due care depends upon circumstances. * * * A man of ordinary prudence would hardly hesitate to go over a crossing near to a passenger train stopped at a station, relying upon his attention being arrested by the invariable bell signal of starting. The presumption that an engine of a standing train will give warning before going over a crossing is greater than if the train were running. * * *" To the same effect see Louisville Nashville R. Co. v. Cooper, 65 S.W. 795, 23 Ky. Law Rep. 1658, wherein the court said: Appellee had a right to assume that in moving its train appellant's servants in charge of it would give proper signals by bell or whistle before running *Page 116 upon the crossing, and when she saw it standing still 150 feet away we think it was properly left to the jury to determine whether she exercised such care as might reasonably be expected of a person of ordinary prudence, situated as she was." The rule is also so stated in the able dissent of Justice Straup inWilkinson v. Oregon Short Line Ry. Co., 35 Utah, 110,99 P. 466.
I have examined carefully the cases cited in the New York opinion, beginning with the case of Mehegan v. New YorkCentral H.R.R. Co., 64 Hun, 637, 19 N.Y. Supp. 444, next to the last paragraph, and find but two of the cases in point, those being the early New York case and the Utah case I have just mentioned. It is to be noted that there was a dissenting opinion in the Utah case. The great weight of authority and the modern rule is that contained in the Zanzinger Case, supra, on the effect of a standing train on the duty of the pedestrian.
I can come to no other conclusion than that the learned district judge was correct in his rulings on all of the points covered in the majority opinion, and the points on which the lower court is reversed. Instead of indulging any presumption in favor of the correctness of the action of the lower court, the law is strained and the testimony is viewed in the worst light to effect the reversal of the lower court. That court properly left to the jury the determination of the weight to be given plaintiff's testimony, and correctly left to the jury the determination of the existence or non-existence of contributory negligence on the part of plaintiff. There was ample evidence to sustain the verdict and the lower court should be sustained.