Aquettaz v. Chicago, Milwaukee, St. Paul & Pacific Railway Co.

*183 MR. JUSTICE MORRIS delivered the opinion of the court. The complaint in this action alleges that on the morning of December 16, 1934, while plaintiff was driving his automobile across the railway tracks of the defendant corporation at a street intersection in the city of Butte, his car was struck by an engine of the railway company and carried some thirty feet; that the car was damaged and plaintiff suffered personal injuries for which he prays judgment in the amount of $10,100. It is alleged that the accident occurred in the early morning before sunrise, and that it was dark and foggy. Negligence of defendants is predicated upon the alleged facts that the railway company’s engine carried no headlights; that the gates at the crossing were up and no attendant of the railway company was present to see that they were operated in the usual manner to stop traffic on the approach of engines or cars on the railway line; that the tracks were not lighted at the point of crossing by street lights or otherwise; and that no warning was given of the approach of the engine or train by those operating the railway engine by either bell or whistle. Defendants’ separate demurrers to the complaint were overruled. The answer specifically denies all the alleged facts of negligence contained in the complaint, and in turn alleges contributory negligence on the part of the plaintiff. The reply is largely a repetition of the matters alleged in the complaint. The verdict of the jury was in favor of the defendants, and judgment was made and entered accordingly; a motion for a new trial was made and denied. The appeal is from the judgment. *184 Plaintiff appears to have prepared his bill of exceptions from memory and without any transcript of the proceedings by the court reporter, and had entered on the record a “stipulation” to which no one agreed except counsel for the plaintiff, such stipulation being to the effect that plaintiff’s appeal will be based entirely on the instructions given and refused by the court, and plaintiff deems the “evidence of other witnesses than those set forth immaterial.” It appears that the bill of exceptions as first proposed by plaintiff contained only a part of the testimony of three witnesses, and no part of the testimony of sixteen other witnesses who testified at the hearing. Defendants on numerous grounds given and supported by affidavit moved to strike the proposed bill of exceptions, which motion was denied. They then proposed some thirty-seven amendments to the proposed bill, all of which the court denied except eight. In that situation the bill came up for final settlement, at which time counsel for the plaintiff announced: “The plaintiff stipulates that the evidence contained in said bill of exceptions may be stricken therefrom and said bill be settled without such evidence.” Counsel for the defendants refused to so stipulate, but the court ordered the partial testimony of the three witnesses heretofore mentioned stricken from the bill, and thereupon signed and settled the same. We, therefore, have a transcript containing none of the testimony of the nineteen witnesses who gave evidence at the hearing. Counsel for the plaintiffs assign only two specifications of error, which are predicated upon the court’s instructions to the jury numbered 21 and 22. Such instructions are as follows: “Instruction No. 21. You are instructed that the railroad crossing was of itself a warning of danger, and that the failure of defendants to give signals of the approach of its train to the crossing, if any such failure is proved, did not relieve the plaintiff from the necessity of making a vigilant use of his senses to determine whether it was safe for him to proceed over the crossing. In such a situation it is not always sufficient if the traveler simply looks and listens for approaching trains. It is his duty to make his looking and listening effective; and *185 if the circumstances require it, it is his duty to stop in order to do so. Therefore, if you find that by proceeding in this manner the plaintiff could have discovered the approaching train in time to avoid the collision, he was guilty of contributory negligence and cannot recover in this action.” “Instruction No. 22. You are instructed that it was not alone sufficient care upon the part of the plaintiff to have stopped his automobile before going upon the crossing, if you believe he did so stop. It was his duty to continue to use reasonable care to look and use his senses vigilantly as he proceeded toward and over the crossing and until the danger was past, and therefore if you find that the plaintiff failed to do this and such failure contributed in any way, as a proximate cause, to the damage complained of, your verdict must be for the defendants.” It is the established rule of this court that a judgment founded on a record barren of evidence will not be reviewed when the only errors assigned are directed to the instructions given by the trial court to the jury. (Osmundson v. Moore Mercantile Co., 70 Mont. 458, 226 Pac. 215; State v. Gill, 21 Mont. 151, 53 Pac. 184; State v. Phillips, 36 Mont. 112, 92 Pac. 299.) The rule is of general recognition and there are no exceptions unless the instructions assigned as erroneous appear from their face to be inherently so. We think the language in the recent case of Darst v. Swazee, 135 Kan. 458, 11 Pac. (2d) 977, 978, is particularly applicable, where it was said: “Since the pertinent evidence is not before us, we cannot determine whether an instruction, although abstractly correct, was applicable to the facts or whether the giving of an incorrect one was prejudicial error, as only that which is prejudicial is ground for reversal.” We find nothing inherently erroneous in the two instructions of the court upon which this appeal is predicated. They impose nothing more on one approaching a railroad crossing with intention to cross than a person of ordinary prudence would voluntarily do under such circumstances. *186 Plaintiff, however, contends that by the omission of the word “reasonably” before the word “effective” in that phrase in instruction 21, “it is his duty to make his looking and listening effective,” the instruction was made absolute. “Instructions must be considered in their entirety” (McGonigle v. Prudential Ins. Co., 100 Mont. 203, 46 Pac. (2d) 687), and the instructions, taken as a whole, impose upon the plaintiff here only reasonable care, and are in accord with the rules laid down in Rau v. Northern Pac. Ry. Co., 87 Mont. 521, 289 Pac. 580. In instruction 22, next succeeding the instruction complained of on account of the omission mentioned, the court instructed the jury that “it was his duty to continue to use reasonable care,” etc., and there is no plausible ground for the assumption that the omission of the word “reasonable” in the preceding instruction misled the jury. We find no material error in the record, and the judgment is therefore affirmed. Mr. Chief Justice Sands and Associate Justices Stewart and Anderson concur.