Runkle v. Burlington Northern

No. 14629
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979

DONNA R. RUNKLE, individually and as
a personal representative,
Plaintiff and Appellant,
VS .
BURLINGTON NORTHERN et al.,
Defendants and Respondents.

Appeal from: District Court of the Nineteenth Judicial District,
Honorable Robert Holter, Judge presiding.
Counsel of Record:
For Appellant:
Hoyt, Trieweiler, Lewis & Regnier, Great Falls, Montana
John Hoyt argued, Great Falls, Montana

For Respondents:
Kroschel, Peterson and Koolen, Billings, Montana
Kent Koolen argued and Gary Peterson argued,
Billings, Montana

Submitted: December 11, 1979
Decided: 3U)\C 1 6 1
m

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Appeal is by the plaintiff from a judgment entered in
the ~istrictCourt, Nineteenth Judicial District, Lincoln
County. For the reasons hereafter stated we reverse and
remand for a new trial.
On March 24, 1976 at about 9:00 p.m., a Burlington
Northern freight train and a jeep pickup driven by David
Runkle collided at the Third Street crossing in Troy,
Montana. Third Street is an asphalt roadway running generally
in a north-south direction which crosses the Burlington
Northern tracks running in an east-west direction. Runkle
was driving south to north and the train was proceeding west
to east.
The Third Street crossing bisects the town of Troy and
is the only way for vehicular traffic to proceed from one
side of the town to the other.
At or about the time of the collision, it had been
raining in Troy and the plaintiff contends that under the
weather conditions the visibility was poor, and because of
the placement of buildings, structures, and lights, the
crossing was more than ordinarily dangerous. There is a
dispute in the evidence as to whether Runkle stopped his
vehicle before crossing the railroad tracks, the railroad
crew testifying that he did not stop, but others testifying
that the railroad crew had stated following the incident
that Runkle did in fact stop his vehicle. The crossing was
protected by a stop sign and crossbucks; there were no
electric gates or warning signals placed there at the time.
The train approached the crossing at a "track speed" of 40
miles per hour.
David E. Runkle died as a result of the collision. He
is survived by his wife, Donna K. Runkle, and six minor
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children. Donna K. Runkle sued Burlington Northern and
one of its employees for damages claimed to have arisen out
of his death. The case was tried before a jury which returned
answers in its verdict on special interrogatories. The jury
found the defendants 31% negligent, and the decedent 69%
negligent. The court entered judgment in favor of the
defendants and this appeal followed.
We reverse this case principally on the grounds of
instructional error and error in refusing certain evidence.
In support of the District Court, we point out it was pre-
sented with over 150 instructions in this cause, counting
amendments; the correlative rights and duties of railroads
and automobile drivers passing over railroad crossings has
not been clearly enunciated in our statutes or in prior
decisions of this Court; and the admissibility of post-
accident remedial actions under the new Montana Rules of
Evidence has only lately been defined by this Court.
We will expand the recital of facts when necessary to
explain the issues.
ON - ADMISSION OF EVIDENCE
- THE -

Of the 19 issues raised by plaintiff on appeal, 9
relate to refusal of testimonial or documentary evidence.
The court excluded evidence of prior accidents at the same
crossing. Appellants sought to introduce such evidence to
show that the railroad had notice and knowledge of the
hazardous condition of the crossing. Evidence of prior
accidents, while inadmissible for the purpose of proving
negligence, is nevertheless admissible for the purpose of
showing the existence of a danger or defect and notice
thereof. Robinson v. F. W. Woolworth Co. (1927), 80 Mont.
431, 261 P. 253; O'Flynn v. City of Butte (1908), 36 Mont.
493, 93 P. 643. Such evidence of prior accidents, however,
must show situations substantially similar to or not too
remote from the accident in question, although absolute
identity of circumstances is not necessary. 70 A.L.R.2d

"One of the principal qualifications of the rule
rendering evidence of prior similar accidents
admissible for certain purposes is that it
must appear, or at least the preliminary proof
must tend to show, that the former accidents
happened under circumstances substantially the
same or similar to those existing at the time
of the injury for which suit is brought,
and that the instrument or agency which caused
the injury was in substantially the same condition
at the time such other accidents occurred as it
was at the time of the accident in question." 29
Am.Jur.2d Evidence, 5305, at 351.
The difficulty here is that from our review of the
record, we do not find an offer of proof as to what the
prior accidents would have shown. We are unable to determine
the question of their admissibility. If the accidents were
indeed not similar, the trial court was well within its
discretion to exclude such evidence. When the reviewing
court cannot ascertain the evidence which is excluded by the
granting of a motion in limine, the law is clear there is no
reversible error. Hermann v. Merrill Lynch, etc. (1977), 17

Likewise, appellants sought to prove the existence of
automatic warning signals on other crossings on the railroad
in northwestern Montana. This evidence was offered so that
appellants could show, by the introduction of such evidence,
that crossings which were less dangerous and with less
vehicular traffic count were nevertheless equipped with
automatic warning devices, while the Troy crossing was not
so equipped. The trial court excluded this evidence on the
basis of relevance. Here again the discretion of the
District Court controls. In Jensen v. Southern Pacific
Company (1954), 129 Cal.App.2d 67,276 P.2d 703, 708, similar
evidence was refused in the District Court and the appellate
court upheld, stating that the "[Dletermination of relevancy,
including similarity of conditions in such a case, is primarily
the function of the trial judge."
However, the District Court denied all evidence of
automatic signals that were installed at the Troy crossing
after this accident. Appellant sought to introduce such
evidence for several purposes, one of which was to impeach
witnesses for Burlington Northern who had testified that the
crossing was not extra-hazardous.
With respect to subsequent remedial measures, Rule 407,
Mont.R.Evid. provides:
"When, after an event, measures are taken which,
if taken previously, would have made the event
less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence
or culpable conduct in connection with the event.
This rule does not require the exclusion of evidence
of subsequent measures when offered for another
purpose, such as proving ownership, control, or
feasibility of precautionary measures, if controverted,
or impeachment."
In two recent cases, this Court has held that evidence
of subsequent remedial measures offered for impeachment is
admissible. Cech v. State of Montana (1979), - Mont .
, 604 P.2d 97, 102, 36 St.Rep. 2185, 2192; and Lawlor v.
County of Flathead (1978), - Mon t . , 582 P.2d 751, 35
St.Rep. 884. See also, State v. District Ct. of Fourteenth
Jud. Dist. (1977), - Mont. , 572 P.2d 201, 34 St.Rep.
1447. In Cech, the installation of an additional portion of
guardrail after an accident was admitted to counter the
state's testimony that a recovery area was preferable to the
guardrail and that the absence of the guardrail conformed in
every way with acceptable standards. In Lawlor, the repair
of a chuckhole by the county two days after the accident was
admitted to establish feasibility of repair and to impeach
testimony given by a county road foreman.
 In this case, experts testified for the railroad that
the crossing was not extra-hazardous. The fact that auto-
matic signals were installed on the crossing after the
accident would have been relevant for the purpose of im-
peachment as well as to show feasibility. It was prejudicial
error to exclude this evidence.
A further issue with respect to the admission of evi-
dence revolves around the refusal by the District Court of
minutes of the town council of Troy and of letters between
the town council and various railroad officials concerning
the hazards of the crossing.
Appellants contend that these letters were evidence of
the amount and kind of notice that the railroad had respect-
ing the hazardous conditions of the crossing, the need for
flashing signals, flagmen, or other safety devices, and were
further important in connection with claimed punitive
damages to show that the railroad wantonly placed its economic
advantage ahead of safety considerations at the crossing.
The railroad, on the other hand, contends that the
testimonial evidence otherwise admitted fully showed the
jury that the citizens of the town of Troy were concerned
about the hazardous condition, that the town council had
passed a resolution relating to a speed limit to be imposed
on the trains passing through Troy and that appellants'
contention that the railroad stopped the imposition of a
town speed limit on trains by threatening to take the town
to court is an unfair contention.
The District Court had granted a motion in limine to
exclude the minutes of the town council as well as the
letters because the town had not adopted an ordinance, as
distinguished from a resolution, that would have the force
and effect of law in imposing a speed limit on trains.
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 The record shows that as early as October 1974, the
town council had received citizen requests relating to
slowing the speed of the train through the town of Troy and
the need for other safety devices. Correspondence ensued
with the railroad about these matters. The town council
passed a resolution, as distinguished from an ordinance, to
impose a 25 mile per hour speed limit on the trains. In
response, railroad officials met with the town council and
offered objections to the speed limits, including the railroad's
need to be competitive. The appellant contends that the
speed limit was never enforced, nor an ordinance adopted,
because of the threat of the railroad to take the matter to
court if necessary.
The documentary evidence was relevant to these issues.
As such, "[all1 relevant evidence is admissible. . ." Rule
402, Mont.R.Evid. The minutes of the town council which set
forth its "regularly conducted and regularly recorded activities",
Rule 803(8), Mont.R.Evid., are admissible as public records
and are excepted from the hearsay rule. Letters between the
town council and the railroad, and intercorporate memoranda
between railroad officials on the subject matter of the
crossing were likewise admissible and relevant to show
notice of the claimed hazardous conditions, and the intent
of the railroad with respect to the same. Of course, letters
from the town council or town officials to persons other
than railroad personnel (for example, to senators or other
elected public officials) would not be admissible unless the
railroad personnel participated in the correspondence. The
intercorporate memoranda are relevant as possible admissions
by a party opponent within the meaning of Rule 801(d) (21,
Mont.R.Evid., and the letters are within the business records
exception to the hearsay rule, Rule 803(6), Mont.R.Evid.
The fact that an ordinance was not passed, which would
have a binding effect on the railroad, does not prevent the

admission of documentary evidence which would establish the
resolution of the town council, and how that brought to the
notice of the railroad officials the claimed hazardous
conditions. These documents go to the issue of ordinary
care to be exercised by the railroad and may indeed go to
the issue of punitive damages, as an indication of wanton-
ness or oppressiveness.
Whether the railroad had notice of the hazardous
condition to the extent that in the exercise of ordinary
care it should have moved to reduce or eliminate the hazards,
and whether it acted wantonly or oppressively in not so
moving, were fact issues which existed independently of the
minutes and the council letters. Accordingly, we are not
called upon to apply the best evidence rule (See 29 Arn.Jur.2d
Evidence S449, at 510.) Nonetheless, the documentary evidence
here was superior to the testimonial evidence, particularly
of those witnesses who would admit only that there was "some
concern" or "some discussion" as to the hazardous conditions
being brought to the railroads attention, and the need for a
slowdown of the train or additional warning devices.
DUTY OF A RAILROAD REGARDING GRADE CROSSINGS
Before we proceed to the next issues, it is necessary
to provide some additional details from the record.
As may be gleaned from the foregoing discussion respecting
the town minutes and the intercorporate memoranda, ongoing
issues during the trial of this cause related to the duty of
the railroad to recognize the Third Street crossing as one
requiring more than a crossbuck warning sign; its duty in
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regard to the speed of the trains through the crossing, and
particularly its duty in the light of the provisions of the
Federal-Aid Highway Act of 1973, Pub. L. No. 93-87, 87
Stat. 250; and section 61-8-203, MCA.
Throughout the trial, it was the position of the rail-
road, that "as a part of United States law" under the
Federal-Aid Highway Act of 1973, railroad grade crossing
signals are for the benefit of the public and the railroad
was not to bear the cost of the installation of such signals.
Yet the Federal-Aid Highway Act of 1973, Pub. L. No. 93-87,
has no language in it that specifically states that a railroad
does not benefit from a grade crossing installation. That
Act is an increment to 23 U.S.C. 130, a section which does
in fact provide for a determination to be made as to the net
benefit to a railroad in connection with railroad crossings.
However, the 1973 Act was adopted by Congress for the purpose
of entering upon a three year program for the betterment and
upgrading of railway grade crossingsto improve safety.
Monies were supplied to that program, one-third of which
were to be used in "off-system crossingstt(an off-system
crossing was one such as Third Street which was not a part
of the federal highway aid system). A subsequent manual
published by the federal government indicated that no cost
for grade crossing installations was to be recovered from
the railroad under the 1973 Act. The impression left in
this case by the questioning of the railroad on the effect
of the Act required the court to give as an instruction the
statement that the Act did not abolish any responsibilities
on the part of the railroad concerning its duties to the
public at a railroad crossing.
The railroad further contended, however, that under
sections 61-8-203, 61-8-706(1), and 61-8-712, MCA, installation
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of crossing signals by the railroad, as a "private corporation,"
was a misdemeanor and could be declared a public nuisance.
That contention arose in this way: Under section 61-8-202,
MCA, the State Highway Department was required to adopt a
manual and specifications for a uniform system of traffic
control devices throughout the state. The manual was prepared
by the Department, and it is referred to as the Manual for
Uniform Traffic Control Devices (MUTCD). Both sides were
contending, erroneously as we shall show, that the manual
bespoke the state law on the subject of traffic control
devices. The railroad contended on its part that the manual
was "the law of the state of Montana" and the guides therein
set forth the only legal requirements facing a railroad in
this situation. Thus when Douglas Morgan, an employee of
the State Highway Department, was under cross-examination,
he stated that the responsibility for the installation of
traffic signals on railroad crossings rested on local juris-
dictions and that local jurisdiction could act only after
engineering studies had been carried out. Morgan testified
that if the railroad wanted to volunteer to install such
traffic control signals, the state government (the Highway
Department) would allow it, but that there was no "responsibility
or no right placed on the railroad to do it, absent the
responsibility of the State of Montana."
For example:

"Q. And now could the railroad do anything more
than merely assist the town of Troy in obtaining
any federal funds that may have become available?
A. In my mind they could.
"Q. Well did they have the legal obligation under
the MUTCD to do anything more than that?
"MR. HOYT: Objection. This is asking this witness
for a legal conclusion. That the MUTCD speaks for
itself.
 "THE COURT: Overruled.
"THE WITNESS: Repeat the question please.
"Q. Do they have a legal obligation pursuant to
the MUTCD to do anything more than assist? A. I
don't believe so. Not under the MUTCD.
"Q. That is the State law of Montana? A. That
has been adopted."
And again later in his cross-examination:
"Q. You have previously testified, have you not, that
the responsibility to put signals in rests with either
the local authority or with the Montana State High-
way Department?
"MR. HOYT: Objection, exceeding the scope of re-
direct examination.
"THE COURT: It is repetitious. Sustained.
"Q. Mr. Morgan--and you felt this was a crossing-
well-if you made the determination that this
crossing is a hazardous one and needs signalization,
then I would take it you would agree that it would
be the state's responsibility to replace signals.
"MR. HOYT: Same objection.
"THE COURT: Overruled.
"WITNESS: It would be the responsibility of
the State to attempt to work with the railroad
to get signals installed there, right."
Thus the jury was given the impression that it was
partly the duty of the State of Montana or the town of Troy
to make the Third Street crossing safer by installation of
safety devices.
It also developed in the evidence that on July 22,
1975, employees of the State Highway Department met with
representatives of the railroad and local authorities, and
had then determined that the Third Street crossing was
indeed hazardous, and that it required flashing signals and
the installation of short-arm gates which would be actuated
by any approaching train. The installation of these safety
devices may have been awaiting the red tape procedure that
inheres in any federal funding project when the fatal accident
in this case occurred.
 Section 69-14-602, MCA, makes it the duty of every
railroad to construct and maintain "a good and safe crossing"
outside of incorporated towns. No similar statute fixes

such a duty on the railroad regarding grade crossings within
incorporated towns, but most certainly a railroad has a
common law duty in the exercise of ordinary care to operate
its railroad and to provide such warning devices as reasonable
and prudent persons in the same circumstances would operate
or provide.
The Federal-Aid Highway Act of 1973 represents an
effort by the federal government to improve the safety of
grade crossings, and to provide funding for the same. That
act does not lessen in any degree the duty, statutory or
common law, of a railroad to maintain a good and safe crossing.
The Manual on Uniform Traffic Control Devices (MUTCD),
promulgated by the Montana Highway Department, may be con-
sidered as a standard or norm to be used for traffic control
devices. It does not have the force and effect of law in
determining the duties and responsibilities of a railroad
with respect to the safety of grade crossings. Thus the
fact that the Montana Highway Department or the town of Troy
had not officially acted to require the railroad to provide
traffic control devices other than the crossbucks is not in
itself sufficient to absolve the railroad of its common law
duty, if it existed, to provide a good and safe crossing.
In addition, it was a jury question whether, under the
circumstances known to the railroad at and before this
accident, the railroad itself should have reduced the speed
of its trains over the Third Street crossing. This Court
stated these principles in Jarvella v. Northern Pac. Ry. Co.
(1935), 101 Mont. 102, 113, 53 P.2d 446, 450, when it said:
 "It is noteworthy, in passing, that the mere
fact that no statute exists, or that no order
by an authorized person has been made requiring
gates or other safety devices at crossings, will
not ipso facto relieve the railway company from
the duty of providing safety devices at crossings
sufficiently dangerous to require them."
We considered the status of the Manual on Uniform
Traffic Control Devices in Williams v. Maley (1967), 150
Mont. 261, 267-69, 434 P.2d 398, 401-02. There this Court
said that the manual did not have a status equal to statute.
We also made reference to the fact that it was unlawful for
anyone other than the State Highway Commission to erect
signs on highways. However, neither that case, nor section
61-8-203, MCA, should be read to mean that a railroad in the
exercise of ordinary care may not itself place warning
devices and signs upon its own property or volunteer to
place the same on state roadways upon notification to the
State Highway Department. It would not thereby either
commit a misdemeanor or create a public nuisance.
Thus it may not be enough for the railroad to protect
its crossing with a standard crossbuck, to operate a train
within a speed limit or to blow the whistle and ring the
bell. The jury is still permitted to determine whether the
railroad exercised reasonable care and caution under the
circumstances and conditions existing at the time of the
accident. Whether a railroad is negligent in a particular
manner, such as in failing to provide automatic crossing

gates, oscillating headlights, flasher lights, or in failing
t o r e d u c e i t s s p e e d i s a q u e s t i o n of f a c t f o r t h e j u r y .

DeElena v. Southern Pac. Co. (19791, 121 Ariz. 563, 592
P.2d 759, 762; Seaboard Coast Line R. Co. v. Buchman (F1.App.

FURTHER TESTIMONIAL EVIDENCE
 We turn now to the contentions respecting three items
of testimony to which objections were sustained by the
District Court.
Dennis Welch was called. He had been a town councilman
at Troy the year before this accident, and as a councilman
made a motion at one of the council's meetings to have the
Burlington Northern reduce the speed of its trains to 25
miles per hour through town. Welch was also an employee of
the Burlington Northern. The plaintiff offered prove
that while Welch was at work following that council meeting
he was called on the telephone by an official of the Burlington
Northern who stated, according to Welch:
". . . I am not sure of his exact words. I
do recall he told me 'yes, I see here by your
records or by the file that you worked with the
railroad since June 4th, 1966 and you have worked
for the railroad long enough to know better than to
suggest reducing the speed of trains because
of the fact that he went on to explain that
I believe economic stability of it is costly
and so forth. ' "
After the conversation with this official, Welch resigned
from the town council because, "90% of the reason" was he
felt a conflict of interest.
The District Court excluded this evidence. Plaintiffs
had raised the issue of wantonness or oppressiveness as the
basis for establishing punitive damages. Clearly, if the
railroad in fact had utilized its position as employer to
exert a form of duress upon its employee, acting in an
official capacity, such evidence might have a bearing in the
mind of the jury to demonstrate wantonness or oppressiveness
sufficient to establish a basis for punitive damages.
Section 27-1-221, MCA. This testimony was admissible on the
question of the railroad's negligence and on the issue of
punitive damages.
Plaintiff also called Bert Winslow, the Troy city
judge, who testified that he attended a council meeting in
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January and February of 1975 with other citizens of the town
of Troy when Burlington Northern representatives were present
including a man named Mr. Mitchell. Plaintiffs offered to
prove that Winslow personally requested Mitchell to have the
Burlington Northern slow its trains to 25 miles per hour;
that Mitchell refused to do so and that his attitude "was
very callous" and evidenced a total disregard for the wel-
fare of the people of Troy. The court denied the offer of
proof.
The District Court was correct in denying the offer of
proof with respect to Winslow for two reasons: Winslow was
not acting as an official of the town of Troy at the time he
made the request, and Mitchell's attitude may have been
personal and not the attitude or a reflection of the position
of the railroad with respect to the crossing.
A third witness, whose testimony was denied, was Harry
Wasserman, police chief of the town of Troy. If allowed to
testify, he would have stated he crossed the Third Street
crossing several times daily, that he had been in close
proximity to hear any bell sounded on the numerous freight
trains as they passed through the crossing during a day;
that he had never heard a bell sounded by any freight train
as it passed through the crossing. The evidence was offered
under Rule 406(b), Mont.R.Evid., on the basis of custom and
habit, but refused by the District Court.
We find the court to be correct in this ruling. So
many variables enter into the proposed testimony of Wasserman
that its probative value as to whether the bell was sounded
on the night of the accident is to be doubted. The makes
and types of freight engines, the different kinds of bells
that might be installed in the various freight engines, the
degree of attention with which the listener may have focused
on the sounding of bells as the trains passed the intersection,
the different engineers who would have been involved, all
make it doubtful that such evidence of habit or custom would
indeed reflect that the crew in this case did not sound the
bell when their own positive testimony had indicated that
they had performed that duty. See 5 9 A.L.R.2d 1379.
The foregoing relates to items of evidence and testi-
mony that were refused by the District Court. Two other
items ruled upon by the District Court are raised as issues
and require discussion by us.
The plaintiff presented the testimony of Gerald R.
Cysewski, as an expert witness on the subject of design at
grade-railway highway crossings. Defense counsel cross-
examined the expert through the use of a "Report 5 0 " promul-
gated by the American Association of State Highway Officials.
A caveat in the report indicated that the opinions and
conclusions were those of the researcher and not necessarily
those of the highway officials. Cysewski testified Report
5 0 was not authoritative because of errors and contradictions.

A witness, Ken Cottingham, who appeared as an expert on
defendants' behalf, testified that the report was used
extensively in his work and that he personally verified its
accuracy.
Plaintiff objected to the use of Report 50 in cross-
examination of Cysewski since it was not verified by him as
accurate. Defendant contends that under Rule 803(18), Mont.
R-Evid., such treatises are permissible for use in cross-
examination of an expert, where a treatise is "established
as a reliable authority by the testimony or admission of
the witness or by other expert testimony or by judicial
notice." Under the rule, the reliability of the treatise, if
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not admitted by the person being cross-examined, may be
established by the testimony of another expert, or by judi-
cial notice. This being the case, no error occurred through
the court permitting the use of Report 50 for cross-examination
of Cysewski.
Plaintiffs called Martin Flom, a visual expert, and
offered to prove through him that certain forms of lighting
on trains were available to the railroad industry and to
Burlington Northern in particular. In that connection,
plaintiff endeavored to use through Flom, a treatise entitled,
"The Visibility and Audibility of Trains Approaching Highway
Grade Crossings", dated May 1971, and promulgated by the
Department of Transportation. Again a caveat appeared in
this treatise that the contents of the report reflected the
opinions of the researchers and that the report did not
constitute a standard, specification or regulation. The
intent of the plaintiff in the use of the treatise was to
establish negligence on the part of the railroad by showing
the kinds of lighting equipment available to railroads in
the operation of their trains. However this was advisory
material only and as such is inadmissible as we held in
Hackley v. Waldorf-Hoerner Paper Products Co. (19671, 149
Mont. 286, 294-295, 425 P.2d 712, 716.
We do not by citing Hackley v. Waldorf-Hoerner Paper
Products Co., supra, endorse all that is said in that case
about codes or standards of safety issued by governmental
agencies. Later decisions seem to be moving toward acceptance
in evidence of such advisory material with certain qualifica-
tions. Such treatises may be admitted upon foundation that
they (1) show what is feasible to the jury, or (2) show what
the defendant knew or should have known about safety precau-
tions. Charleston Nat. Bank v. International Harvester Co.
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(1974), 22 Ill.App.3d 999, 317 N.E.2d 585. Unless the codes
or standards are adopted by a governmental agency so as to
have the force of law, they are not to be admitted as conclusively
determining the standard of care imposed upon the defendant,
Charleston National Bank, supra, nor as substantive evidence
of negligence, unless coupled with a showing of general
acceptance in the industry concerned. See Lemery v. O'Shea
Dennis, Inc. (1972), 112 N.H. 199, 291 A.2d 616. In
this case the holding in Hackley v. Waldorf-Hoerner Paper
Products Co., supra, applies to Flom's treatise because the
necessary preliminary proof is lacking.
We point out that we are not inconsistent in upholding
the use of Report 5 0 and the denial of the Flom treatise.
Report 5 0 was verified as accurate, was being used as authoritative
by an expert witness, and was used at trial to test the
knowledge of another expert witness in cross-examination.
The preliminary proof for its use came within the general
rule we have set forth above.
INSTRUCTIONAL ERROR
We find prejudicial error in the giving of the follow-
ing instructions:
Instruction no. 24:
". . .The court has taken judicial notice that the
manual on Uniform Traffic Control Devices is
the law in the State of Montana . . ."
~nstructionno. 26:
"You are instructed that: section 1A-3 of the
Manual on Uniform Traffic Control Devices pro-
vides: 'The decision to use a particular device-
at a particular location should be made on the
basis of an engineering study of the location
.. . 1 II

Instruction no. 29:
"You are instructed that: The laws of this
State provide as follows:
 "'The Department of Highways and local authorities
may designate particularly dangerous highway-grade
crossings of railroads and erect stop signs at
these crossings. .
.I II

Instruction no. 35:
.
". . The responsibility for traffic control devices
rests on a multitude of governmental jurisdictions."
Instruction no. 36:
.
". . It is for you to determine whether the Third
Street crossing in Troy, Montana on March 24,
1976, was a rural or an urban crossing."
Instruction no. 37:
.
". . If you find from the evidence that a party
to this action having a duty to comply with
the Manual on Uniform Traffic Control Devices
conducted himself in violation of the Manual on
Uniform Traffic Control Devices, such conduct was
negligent as a matter of law."
Instruction no. 47:
In general, this instruction informed the jury
that the members of the crew operating the railroad
train had the right to assume the exercise of due
care by the other party.
Instruction Nos. 24 and 26: The excerpts from the
Manual on Uniform Traffic Control Devices (MUTCD) should not
have been submitted to the jury in the form of instructions.
They do not have the force of law, are merely advisory, and
until the State Highway Commission acts with respect to
them, they do not place a duty on any party. See Williams
v. Maley, supra. Instead, the jury should have been instructed
on the statutory duties of the railroad with respect to
operating trains over its crossings, its common law duties
with respect to safety in the exercise of ordinary care, and
as a correlative matter, the duties of a motorist, both
statutory and common law at a railroad crossing. Billings
Leasing Co. v Payne (1978), - Mont
. . , 577 P.2d 386,
35 St.Rep. 399, Instruction No. 24 was incorrect as a
statement of law, and Instruction No. 26 was useless and
 In the same way, Instruction No. 29 did not relate
either to the duty of the railroad or to the motorist and
should not have been given.
Instruction No. 36 was meaningless because the jury was
not told what different legal results would depend on whether
the crossing was rural or urban. Instruction No. 37, on the duty
to comply with the Manual on Uniform Traffic Control Devices,
was improper because no formal action was taken to impose a
duty under that Manual upon the railroad.
Instruction No. 47, concerning the right of the rail-
road to assume the ordinary care of a motorist is not appli-
cable unless the party having the right to assume is also
exercising ordinary care. The right to assume due care of
another springs from the rule that every person who is exer-
cising ordinary care has a right to presume that every other
person will perform his duty and obey the law. Tucker v.
Lombardo (1956), 47 Cal.2d 457, 303 P.2d 1041, 1047-1048.
THE PUNITIVE DAMAGES ISSUE
The court withdrew the issue of punitive or exemplary
damages from the jury. Under the state of evidence in this
case, the District Court was not in error, but such may not
be the case in a retrial of this cause. We have already
adverted to the minutes of the Troy town council, and the
intercorporate memoranda, as well as the testimony of Dennis
Welch which should have been admitted. The resulting record
in a retrial may well present an issue of punitive damages
for determination by the jury. Poeppel v. Fisher (1977),
Mont. , 572 P.2d 912, 34 St.Rep. 1491.
If the evidence on retrial should show that the railroad
had either a statutory or common law duty to ameliorate the
alleged dangerous circumstance of the Third Street crossing,
and failed to do so, it would, of course, be acting negligently.
Jarvella v. Northern Pac. Ry. Co., supra. If in addition,
the railroad took action on its own to avoid such amelioration,
with knowledge of the danger, its conduct would be unjustifiable,
which amounts to malice in law. Fauver v. Wilkoske (1949),
123 Mont. 228, 211 P.2d 420. In that situation, a jury may
award punitive damages in addition to actual damages for
sake of example and by way of punishing defendant. Section
27-1-221, MCA; Ferguson v. Town Pump, Inc. (1978), - Mont .
, 580 P.2d 915, 35 St.Rep. 824.
AUDIBILITY OF - WHISTLE AND -
- THE - BELL
Appellants contended throughout the trial that the
whistle and bell were not sounded in advance of the collision,
and that the bell was not audibly effective. The railroad
employees testified that the whistle was blown from the
whistle post one-quarter mile from the crossing, and the
bell on the locomotive was rung.
We find no case discussing particularly whether the
bell must be audible for the statutory distance. Section
69-14-562(7), MCA, requires a whistle to be blown and the
bell to be rung within a distance from between 80 rods
(1,320 feet) to 50 rods (825 feet) until the crossing has
been reached.
It seems obvious that the legislative intent is that
such signals be audibly effective to persons on foot or in
vehicles approaching or crossing over the intersection with
the railroad. We find the legislative purpose to be satisfied
if either the whistle or the bell, both being sounded for
the statutory distance, gives an audible warning to others
using the grade crossing sufficiently effective that a
collision with the train can be avoided in the exercise of
reasonable care.
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WHETHER -- SHOULD -- DAMAGES
THIS JURY HAVE FIXED
Appellant contends the jury should have fixed the
amount of damages, even though it found the appellant 69%
negligent, and the railroad 31% negligent. No error occurred
in this case, however. The jury simply followed the instruc-
tions given and the form of the special interrogatories.
Appellant had approved the form of the special interrogatories.
For the foregoing reasons, the judgment is reversed and
the cause remanded for a new trial.

Justice

We Concur:

/7
ief Justice

Justices

Hon. Gordon Bennett,
District Court Judge sitting
in for Mr. Justice Daniel J.
Shea
Mr. ~usticeJohn C. Sheehy, specially concurring:
The law in Montana is indeed confusing with respect to
the duty of railroads and motorists at railroad grade crossings.
Because this case is being returned for retrial, by way of
suggestion only, I would submit the following instructions
for consideration by the parties and the court. The instructions
assume the same record as we now have before us and might not
otherwise be applicable; moreover, I offer no guaranty that
on a subsequent review my fellow justices would agree. The
citations, of course, would not be a part of the instructions
when submitted to the jury:
1. The statutory duty of the railroad in this case was
to sound its whistle and ring its bell at a point between 80
rods (1,320 feet) and 50 rods (825 feet) from the crossing.
It has this duty regardless of whether any person or vehicle
is on or approaching the crossing and regardless of the dan-
gerous condition, if any, at the crossing. If you find from
a preponderance of the evidence that the railroad did not
perform this duty, such failure would be negligence as a
matter of law. Section 69-14-562( 7 ) , MCA.
2. Implicit in the statutory requirement that the
railroad sound its whistle and ring a bell upon approaching
a crossing is that such whistle or bell be audibly effective,
that is, that one or the other could reasonably be heard by
persons on or approaching the crossing on foot or in vehicles.

If you find from a preponderance of the evidence that neither the
whistle nor the bell were sounded as required by law, or that d~
the whistle nor the bell could be heard at the crossing if
sounded from a point between 1,320 to 825 feet in advance of
the crossing, then again the railroad would be negligent as

a matter of law. Section 69-14-562(7), MCA.
 3. The only statutory requirement as to lights on a
railroad locomotive is that it must be equipped with a
headlight of at least 1,500 candlepower measured without a
reflector. If the evidence shows this, or if there is no
dispute about it, then this statutory requirement is fulfilled.
Section 69-14-236(1) (a), MCA.
4. There is no statutory duty imposed on a railroad to
provide oscillating headlights on its locomotives, running
lights on the sides of its locomotives, electric warning
signals or automatic gates on crossings, flagmen, or other
safety means or devices, unless ordered by a public authority
authorized by law to do so. In this case there is no evidence
of any such order by a public authority. Further there is
no statutory limit on the speeds of trains passing through a
city or town unless a public authority empowered to do so
ordered a speed limit on such trains. None appears here.
5. A breach of a duty imposed by statute or ordinance
is called negligence per-
- se, that is, the breach is negligence
as a matter of law. A person or corporation can be found
negligent however, even if its conduct does not offend a
specific statute or ordinance, when the conduct involved
does not meet the standard of "ordinary care." Jarvella v.
Northern Pacific Ry. Co. (1935), 101 Mont. 102, 53 P.2d 446.
6. Every person or corporation is responsible for
injury to the person or property of another caused by want
of ordinary care or skill. Negligence means such want of
ordinary care or skill. Such want of ordinary care or skill
exists when there is a failure to do that which a reasonable
and prudent person would ordinarily have done under the
circumstances, or doing that which such person under the
existing circumstances would not have done. Section 27-1-
701, MCA.
 7. Applying the standard of ordinary care to the duty
of the railroad in this case therefore, the mere fact that
no statute or ordinance exists, or that no order by an
authorized person or body has been made requiring certain
headlights, warning lights, gates, flagmen, or other safety
means or devices at the crossing, will not relieve the
railroad from its duty of providing such, at railroad crossings
sufficiently dangerous to require them, if reasonable and
prudent persons in the exercise of ordinary care would have
provided them under the same circumstances. Jarvella v.
Northern Pac. Ry. Co., supra.
8. Likewise, if under the same standard of ordinary
care, reasonable and prudent persons would have slowed or
reduced the speed of the train under the circumstances here,
failure to do so would constitute negligence, although no
ordinance or statute existed requiring such slowing or re-
duction of speed.
9. If you find from a preponderance of the evidence
that the railroad did not exercise reasonable care under the
circumstances, such failure to exercise reasonable care
should be considered as negligence.
10. The railroad and its employees are not relieved of
their duty to exercise ordinary care because the permission
of public officers or other bodies might have been required
for the railroad to perform such duty, or that governmental
agencies might have a part in funding additional safety
devices on highway-railroad crossings. You should consider
only in this connection whether the railroad had sufficient
notice in advance of this accident of a dangerous condition
at the crossing that, in the exercise of ordinary care, it
should have moved to reduce or eliminate the dangerous
condition.
11. In considering what is the standard of ordinary
care to define the duty of the railroad in this case, you
-25-
may consider the evidence of the Manual for Uniform Traffic
Control ~evices (MUTCD) drawn up by the State Highway
Department, or manuals of operation drawn up and used by the
railroad itself. Whether the railroad conformed to such
requirements is relevant and should be considered, but these
are not necessarily controlling on the question of whether
the railroad and its employees exercised ordinary care, for
that question in this case must be determined by you on the
basis of such ordinary care as would have been used by
reasonable and prudent persons under the circumstances
existing here.
12. The driver of an automobile has a duty under
Montana law to stop his vehicle at a place between 50 to 15
feet from the nearest rail of the railroad crossing and not
to proceed until he can do so safely, but his duty to stop
exists only if (1) a train is within 1,500 feet of the
crossing, and emitting an audible signal from such distance,
and the train because of its speed and nearness is an immediate
hazard; or (2) if the train is plainly visible and in hazardous
proximity to the crossing. The driver is also statutorily
required to drive his automobile at an appropriate reduced
speed as he approaches and drives across such crossing.
Again, a breach of either of such statutory duties by the
driver would be negligence as a matter of law. Sections 61-
8-303 (5), and 61-8-347, MCA.
13. Apart from such statutory duties, the driver of a
motor vehicle can be found negligent if he fails to exercise
ordinary care to avoid injury to himself. The term "ordinary
care" has the same definition for the driver as for the
railroad.
14. The driver of a motor vehicle is required to keep
a lookout, not only straight ahead, but laterally ahead. He
-26-
is presumed to see that which he could have seen in the
exercise of ordinary care.
15. A railroad crossing is itself a warning of danger
to the driver of a vehicle approaching or passing over the
crossing. The train, if it is visible in the exercise of
ordinary care or if its approach can be detected in the
exercise of ordinary care by such driver, is also a warning
of danger.
16. In ordinary circumstances, the train has a right
of way over its track when a motor vehicle approaches or
crosses the railroad crossing which the train is approaching
or passing over. If you find that the railroad was not
negligent in the operation of its train, it has a right to
rely on its right of way. The railroad may not rely solely
on its right of way, however, if the train is being operated
in violation of statutory duties or in want or ordinary
care, and such violation or want of ordinary care is a
proximate cause of the collision. Flynn v. Helena Cab and
Bus Co. (1933), 94 Mont. 204, 21 P.2d 1105.
17. Both the railroad and the driver have a right to
assume that the other party is exercising reasonable care
and obeying the law as each approaches and passes over the
crossing, but one is entitled to rely on that assumption
only if that one is himself or itself exercising ordinary
care. Neither party has a duty to anticipate negligence on
the part of the other. Tucker v. Lombardo (1956), 47 Cal.2d