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,24 Mont. 340, 61 P. 861, where the court said: "The instruction complained of is clearly erroneous, and the presumption is that it was prejudicial to the defendant. It cannot be correct under any supposed state of facts, and so is wrong in the absence of all evidence, as it would be were the evidence before us. * * * For the giving of this instruction complained of by appellant, which does not state the law, and which must be presumed to have been prejudicial to the defendant, the judgment is reversed, and the cause remanded for a new trial." The exception was recognized in State v. Phillips, 36 Mont. 112, 92 P. 299. *Page 187
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., 22 Mont. 290, 56 P. 315, 316, it was said: "Every error is presumptively injurious. That presumption is rebutted only by establishing that it either did not or could not prejudice the party against whom it was committed. * * * The jury may have been, and the presumption is that they were, misled by the instruction." To the same effect is Lawrence v. Westlake,28 Mont. 503, 73 P. 119.
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., 40 Mont. 481, 107 P. 412; Rau v. NorthernP. Ry. Co., 87 Mont. 521, 289 P. 580.)
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., 55 Mont. 139, 174 P. 183; Demarais v. Johnson,90 Mont. 366, 3 P.2d 283, 79 A.L.R. 553.)
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., 63 Wn. 476,115 P. 1047, is typical of such cases. In that case the court reasoned that without the evidence it could not say that the lower court was not correct because the evidence may have been in such a condition that defendant would have been entitled to a judgment as a matter of law, and that even if the verdict had gone for plaintiff, the court would have been warranted in granting judgment for defendant notwithstanding the verdict. To arrive at that conclusion in this case, we would have to presume that the lower court was in error, first, in denying the motion for nonsuit, and, secondly, in denying the motion for directed verdict. I think if there is any presumption in these respects, it is in favor of the trial court's ruling denying the motions and submitting the cause to the jury.
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