HONORABLE H. B. HOFFMAN, District Judge,
sitting in place of MR. JUSTICE BOTTOMLY, delivered the Opinion of the Court.
This is an appeal by defendants from a judgment of the district court of the eighteenth judicial district entered in favor of the plaintiff on a complaint to recover on two causes of action, one for personal injuries, the other for damages to the truck which plaintiff was driving southward on a public highway one mile north of Belgrade, in Gallatin County, where a passenger train proceeding southeasterly crossed the highway and collided with the truck when it started to cross the railway track.
The respondent and his witnesses produced evidence of appellants’ failure of the engineer of the diesel engine drawing the train to blow a whistle or ring a bell for the road crossing. The usual “railroad crossing” signs had been erected and were in place. It is conceded that this evidence of negligence on the part of appellants is sufficient to predicate actionable negligence against the appellants. Defendant, Henry Morris, was the engineer.
The physical facts are quite easily illustrated. The collision occurred on Dry Creek Road one mile north of Belgrade. The road runs due north and south, entering Belgrade from the [193]*193north. Let the point of collision on the highway be marked A. The railway track crosses the highway, for practical purposes, on a straight line running northwesterly and southeasterly through point A. at an angle of thirty or thirty-six degrees between the railroad and Dry Creek Road. Slightly less than one mile north of A, Dry Creek Road meets another public highway running straight east and west. Let the point of intersection here be marked B. Respondent drove his empty, 1952, 1% ton Gr.M.C. truck, equipped with a stock rack, westerly to point B, made a left turn and started south on Dry Creek Road, then graveled, level, and dry all the way. Weather and visibility was clear. Admittedly, he maintained fairly constant speed of twenty-five miles an hour to A, the point of collision.
The highway running east and west intersects and crosses the railway west of B at point C. We then have the enclosed right triangle, the two highways, AB and BC, forming the two legs and the railway, AC, the hypotenuse. The railway rises southeasterly at a grade of one-tenth of one percent. The railway tracks are built at a fairly constant elevation about the abutting land between A and C — at point A, five feet. The field enclosed within the triangle, A B C, is open, with absolutely no obstruction to vision and full view of the railway from any given point on Dry Creek Road between A and B, except only, that one witness suggested, but offered no positive testimony, that there may have been a hay stack somewhere between Dry Creek Road, A to B, and the railway, A to C. The triangle, ABC, is a level plane rising slightly as it approaches A. Nothing obstructs the plain and full view of the railway tracks from any point between A and B. It is to be noted that the railway tracks from A to C were elevated approximately five feet above the land east of such tracks. The passenger train was in plain full view at any point between A and C from any point on AB. Respondent’s witness, John S. Milesnick, who has lived four and one-half miles north of Belgrade for twenty-two years, testified the triangle ABC was “a great big wide open field”.
[194]*194Ales H. Cloyd drove a dark DeSoto northward on Dry Creek Road and crossed the railway tracks shortly before the accident. Respondent did not remember passing the Cloyd DeSoto, which he must have passed on Dry Creek Road very near to and north of the railway track. Cloyd testified as follows:
“ Q. I presume, Mr. Cloyd, that you were driving on your own right-hand side of the road as you crossed the tracks? A. Yes, sir.
“Q. And I also presume that you were proceeding at a reasonable rate of speed? A. Yes, sir.
“Q. About how fast, if you can remember, were you traveling? A. I can’t remember.
“Q. Do you remember whether you were driving fast? A. Oh, probably 40 miles an hour.
“Q. That road there is wide enough for two cars to pass? A. Plenty of room.
“Q. Easy isn’t it? A. Yes, sir.
‘ ‘ Q. Did you make plenty of room on the other side for cars to pass you going in the opposite direction? A. I always did.
“Q. Incidentally do you happen to remember whether you may have met any other traffic besides the truck at or near the time of this accident? A. I met one truck going the opposite direction to what I was.
‘ ‘ Q. And I think that’s the truck that was involved in this collision, wasn’t it? A. I think so, sir.
‘ ‘ Q. Did you look up the track to see if a train was’ coming before you crossed? A. I looked down the track.
“Q. Did you look left or right? A. How was that?
1 ‘ Q. Did you look left or right ? A. I guess that would be my left.
“Q. And there was a train coming towards the crossing was there not? A. Yes, sir.
“Q. And you looked at it and felt that you had time to get' over didn’t you? A. Yes, sir.
[195]*195“Q. And did yon make it over in plenty of time to be safely ont of the way of that train? A. Yes; well, I thought I was.”
Henry Carpenter, with his wife, Iva Evelyn Carpenter, and her mother, followed the respondent from point B to within a short distance from A when the accident occurred. They followed at a distance of two hundred feet. Mr. Carpenter was driving, but did not testify. His wife, respondent’s witness, testified as follows:
‘ ‘ Q. And who besides your husband and yourself was in the car? A. My mother, Mrs. Thompson.
‘‘Q. And — all right. You followed Mr. Monforton as he proceeded south? A. Yes.
“ Q. And would you know approximately the distance that you were behind his truck as you followed him to the south? A. I would say 200 feet approximately.
”Q. And, now Mrs. Carpenter, did you later become aware there was a train on the track? A. Well, just before we stopped at the crossing we saw it.
”Q. And what kind of a train was it on the track? A. Passenger.
“Q. And did — who in your car first observed the train? A. I believe it was myself.
”Q. Now you say it was just before you stopped at the crossing. Did you stop near the crossing that day? A. Well, I imagine we were about 200 feet from the crossing anyway.
‘‘Q. That your husband stopped the car? A. Yes.
”Q. And you had been traveling south along this Dry Creek road and •— A. (Interposing) Yes.
”Q. (Continuing) — and was just about that point when you first observed the passenger train, is that correct? A. Yes.
‘ ‘ Q. How did you happen to stop your car there, if you know? A. Well, we saw the train and then stopped.
[196]*196“Q. And what did you observe about Mr. Monforton’s truck at the time? A. Well, he wasn’t driving very fast, and we thought he might stop, but he failed to do so.
“Q. And then did you see his truck get hit ? A. We did. * * #
“Q. Did you, in your own car, try to do anything to attract Mr. Monforton’s attention to the train 1 A. No.
“Q. Did you consider attempting to do such? A. Yes, we thought of honking but we was afraid it would attract his attention back instead of forward.
“Q. Could you tell from the rear view mirror, either from Mr. Monforton’s rear view mirror or looking through his window, what he was doing as he approached the track ? A. No.
“Q. In other words, you didn’t know whether he -was looking or not? A. No. * * *
‘ ‘ Q. Did you actually discuss with your husband the matter of whether or not you should blow the horn to attract his attention? A. I think I mentioned it but I don’t think my husband answered. He said afterwards he was afraid it would attract his attention back.
‘ ‘ Q. About how far do you think Mr. Monforton was, if you can give us an estimate, when you mentioned that to your husband? A. Well, he was very close to the track; I couldn’t tell how far.
“Q. Well, is it fair to put it this way then, that you didn’t consider that there was any danger until Mr. Monforton was very close to the track? A. True.
“Q. However, you had watched — you had seen the train approaching for some little distance and just felt that Mr. Monforton would naturally see it and stop, is that right? A. Yes.
“Q. And you yourself saw the train? A. Yes.
“Q. Were you driving a sedan? A. Yes. * * *
“Q. Isn’t it a fact, Mrs. Carpenter, that you were so [197]*197totally absorbed with what you saw going on before you that you pretty much were unmindful of everything else going on except trying to figure whether Mr. Monforton would make it or not? A. To a certain extent.
££Q. You were terribly concerned about it weren’t you?
A. Sure.”
Wallace Cox, who had resided fifteen miles north of Belgrade for forty years, drove into Belgrade just before the accident. As he crossed the railway track he looked down the track and saw the train at a distance between one and two miles away. He testified:
“Q. Now when you are driving an unloaded truck in which you have no visibility do you want this court and jury to believe that you didn’t consider it necessary to look up the track to see how far you could see a train — look for a train? A. I always leaned forward and looked as far as my visibility would limit me in a truck.
££Q. In other words, you did take the precaution, Mr. Cox, in all circumstances, didn’t you, that I consider any prudent drive should, of leaning forward and peering out your right window to see just as far as you could see, isn’t that right? A. That is correct; your vision is limited.
‘ ‘ Q. But you did make a practice of looking up the track by leaning forward when you were in your truck of limited visibility? A. You have got to respect a train. * * *
i£A. The angle of the track agoing you might say, southeast, and the road going south, you are almost going' along, you can see, your vision is not restricted, you can see that train.
££Q. If it’s out to the side of you? A. Yes.
“Q. Now if you could ■ — ■ didn’t see a train out to the side of you and you knew you were traveling faster than a train would be traveling on that track would you turn and lean clear forward and look back down the track? * * *
A. Yes.”
[198]*198Later he testified as to crossing the tracks: “I always look down the track before I came to the crossing; I didn’t check it as close empty.”
Respondent testified that he reached B ahead of Carpenter, turned south and Carpenter followed him about two hundred feet behind. At point B he looked; the whole track was in front of him, “that is, across that triangle there.” He did not see a train. He further testified:
“Q. Now as you proceeded south were you watching the road ahead of you? A. I was.
“Q. What effort did you make to look for trains? A. I glanced over occasionally to the right.
“Q. When was the last time you glanced over to the right? If you remember. A. Well, I can’t say exactly it was well up the road.
“Q. When you say ‘well up the road’ do you mean near the crossing or near the comer? A. Oh, nearer the crossing; I wouldn’t be able to say just when it was.
“ Q. When you looked to the right you didn’t change your body position in the cab of the truck any, that is, you simply turned your head and looked to the right? A. Yes. No, I didn’t move over in the seat.
“Q. You didn’t lean forward either to get a little better view? A. Couldn’t lean very much forward with the steering wheel in the truck in front of me.
‘ ‘ Q. When you were proceeding along that road you knew that the crossing came in, or the track came in at an angle or a similar angle to that shown on this plat, did you not? A. Yes, I did.
“Q. Was the window of the truck rolled up or down do you remember? A. No, they were closed.
“Q. Did you at any time stop before you reached the crossing for the purpose of looking for a train? A. I can’t remember stopping.
“Q. You do have a recollection of your proceeding along [199]*199the road, I think you said, up until you were within a hundred feet? A. Something like that, yes.
“Q. "Was there any traffic on the road besides the Carpenter car that you remember? A. I can’t remember anyone else.
‘1Q. There was presumably a red car that passed over the crossing going in the opposite direction shortly before the accident you have been told that since, haven’t you? A. I have been told there was a car there, yes.
“Q. You have no recollection of that car there? A. Not at all.”
The crux of this case is whether plaintiff was guilty of contributory negligence, which was interposed as a defense. It is the opinion of the court that the whole record resolves the issue in favor of the appellants; that the record discloses that the respondent failed to exercise that degree of care which an ordinary, reasonable and prudent man, under the circumstances of this case, would have exercised for his own safety, and that his lack of due care was a direct and proximate cause of his injury and damage. He neither duly looked, listened, nor took any precaution for his own safety. Had he used his senses, he could not have failed to see the approaching train. There was no obstruction whatever to interfere with respondent’s observation or power of observation. The same may be said concerning his hearing. There is evidence that this line of railway track was used almost exclusively for freight trains. The train involved in this accident was a passenger train approximately one thousand feet in length drawn by a three-unit diesel engine. While there is evidence that this train moved more quietly than the freight trains that usually passed over this line, there is no evidence that the passenger train would not have been heard in time for safety, had the plaintiff given attentive ears when he approached the railroad crossing where the usual “Railroad crossing” signs had been erected and were in place. The grade leading up to the railroad to cross it was between one hundred [200]*200and one hundred and twenty-live feet long, which with the railroad itself in plain view for nearly a mile, were sufficient warnings to bring the sense of hearing of a reasonably prudent man into play.
The respondent testified that his brakes were very good, that the windows were clear that he was not traveling faster than twenty-five miles per hour. Sergeant William C. Benson qualified as an expert witness and testified that the actual braking distance of plaintiff’s truck, going twenty-five miles per hour on that highway would be forty feet; the approximate stopping-distance would have been not to exceed ninety-two feet. Respondent thought the truck could have been stopped somewhere between sixty and one hundred feet. Considering the one hundred to one hundred twenty-five feet grade from the road level up to the track where the collision occurred the actual stopping distance was quite certainly less than that.
Section 72-164, R.C.M. 1947, among other things provides: “* * * provided, however, all persons driving motor vehicles * * * where the view is obscure, or when a moving train is within sight or hearing, shall bring said vehicle to a full stop not less than ten nor more than one hundred feet from where said highway intersects railroad tracks”.
Hunter v. Montana Central Ry., 1899, 22 Mont. 525, 57 P. 140, lays down principles of law, ever since followed in Montana, which are impelling in our decision. We followed that decision twenty-five years later in West v. Davis, 71 Mont. 31, 227 P. 41, 45, wherein we observed that the decisions of this court are wholly adequate upon which to base our opinions on the precise issue of contributory negligence. After reviewing prior decisions, this court said: “It is apparent, no matter what the plaintiff himself testified, that the train, at the time when the plaintiff was in place of perfect safety, was at a point where the plaintiff could not have failed to observe and hear it if he had looked or listened. We cannot subscribe to the proposition, because a man testifies that he did look and did not see an [201]*201object which manifestly must have been at a certain point at a given time within his plain view, where he admits that his sight is good and nothing to interfere with his vision, that thereby any question is presented for the jury when the ordinary use of his senses must necessarily have given him warning of the approach of the on-coming train. These facts, in our opinion, were demonstrated beyond any question upon the trial of this case by the testimony offered by the respondent himself and his witnesses; and we think, for the reasons above stated, and in view of the previous decisions of this court, that the trial court erred in refusing to grant the nonsuit requested by the defendant at the close of plaintiff’s case, and also erred in refusing to direct a verdict for defendant, inasmuch as the defendant’s case in nowise aided the ease of the plaintiff.”
The foregoing pronouncement of our law is solidly buttressed upon the following decisions that had then been rendered: Hunter v. Montana Central Ry., 22 Mont. 525, 57 P. 140; Meehan v. Great Northern Ry., 43 Mont. 72, 114 P. 781; George v. Northern Pacific Ry., 59 Mont. 162, 196 P. 869; Normandin v. Payne, 65 Mont. 543, 212 P. 285; Keith v. Great Northern Ry., 60 Mont. 505, 199 P. 718; and Roberts v. Chicago, M. & St. P. Ry., 67 Mont. 472, 216 P. 332. Our recent decisions are fully in accord: (Rau v. Northern Pacific Ry., 87 Mont. 521, 289 P. 580; Grant v. Chicago, M. & St. P. Ry., 78 Mont. 97, 252 P. 382; Sullivan v. Northern Pacific Ry., 109 Mont. 93, 94 P.2d 651; Incret v. Chicago, M. & St. P. & P. Ry., 107 Mont. 394, 87 P.2d 12; Great Northern Ry. Co. v. Taulbee, 9 Cir., 1937, 92 F.2d 20, certiorari denied 302 U.S. 766, 58 S.Ct. 476, 82 L.Ed. 595.
The respondent emphasized that the Low Line railway tracks upon which the collision occurred was usually used for slow moving freight trains whereas the train involved in this accident was a fast moving passenger train which introduced the element of surprise, or unexpectedness. William W. Walters, assistant superintendent of the Rocky Mountain Division, testi[202]*202fiecl from the railroad records that between November 4, 1946, and March 23, 1956, sixteen passenger trains went over this Low Line Crossing. Respondent’s witness, Iva B. Carpenter, whose qualifications are doubtful, testified the train was going forty to forty-five miles per hour. John S. Milesnick testified for respondent that the speed of freight trains over the Low Line was fifteen to twenty miles per hour. The train dispatcher ’s records showed that the average speed of the freight trains on the Low Line March 23, 1956, the day of the accident, was thirty and one-half miles per hour; on March 22, 1956, the average was fractionally over that. All freight trains had diesel engines beginning in 1956. The record does not disclose whether witness Milesnick’s testimony had reference to diesel drawn freight or coal burning engines. Mr. Walters also produced the tape from the speedometer on the engine which drew the train involved and testified that it showed a speed of forty to forty-four miles in the mile and one-half immediately before the collision, and a speed of forty miles when the brakes were applied. He testified that there was very little difference between the speed of freight and passenger trains on the Low Line. Henry Morris, the engineer of the diesel engine when the accident occurred, said he was traveling thirty-five to forty miles per hour as he came to the crossing.
Respondent, who did not see the passenger train before the accident, asserts that it was the excessive speed of the train over the usual freight trains that caused the accident, but could not, of course, testify as to the speed of the train. His own speed between the points A and B, nearly a mile, was twenty-five miles per hour from which it would appear that even the usual freight train could have overtaken him. He also relies upon faint evidence that- the passenger train ran more quietly than freight trains raising an inference that had it been the usual freight train the noise would have warned him. Respondent thereby attempts to substitute an alleged custom on appellants’ part for the exercise of due care on respondent’s part [203]*203at a place of known clanger. The better rule, stated in Di Giendemonica v. Pennsylvania-Reading Seashore Lines, 123 N.J.L. 296, 8 A.2d 342, 343, is that a railroad crossing is, as a matter of law, a place of known danger and respondent was bound by law to recognize it as such. The Supreme Court of New Jersey said:
“Stated succinctly, plaintiff’s contention is, that where defendant Eailroad Compaq has, through long practice, known to the members of the general public, of whom plaintiff’s intestate was one, led users of its crossing to anticipate the operation of defendant’s trains at a speed, at that point, not in excess of a certain rate per hour, the increase in that speed or rate of operation of defendant’s trains over said crossing, without notice to the public of the change in speed, or adoption of safety precautions by defendant company, constitutes a situation from which negligence may be inferred. * * *
“As the learned trial court said in striking the complaint: ‘If a railroad company can be charged with negligence because it caused a train to be operated faster than the usual or customary speed, why can’t it by the same token be charged with negligence because a train passes a particular crossing or street earlier or later than it was customary for the train to go by; and why could it not be charged with negligence for increasing train service if the accident happened before it became the custom for the railroad company to operate the additional train or trains? If such were the law, railroads would be liable in damages for a violation of a custom rather than a violation of a duty imposed by statute or other lawful authority.’
“What the plaintiff is really trying to do is to substitute an alleged custom on the defendant’s part for the exercise of due care at a place of known danger on the part of the plaintiff’s intestate. Custom or no custom, a railroad crossing as a matter of law is a place of known danger and [204]*204plaintiff’s intestate was bound by law to recognize it as such.”
The following eases, not all precisely in point, are in accord: Larrabee v. Western Pac. Ry., 173 Cal. 743, 161 P. 750; Kinghorn v. Pennsylvania Ry., 2 Cir., 1931, 47 F.2d 588; Holt v. Illinois Cent. Ry., 318 Ill.App. 436, 48 N.E.2d 446; Baltimore & Ohio Ry. Co. v. State ex rel. Black, 107 Md. 642, 69 A. 439, 72 A. 340; Byerley v. Northern Pacific Ry., 11 Wash.2d 604, 120 P.2d 453; Nuttall v. Denver & R. G. W. R., 98 Utah 383, 99 P.2d 15; Sohl v. Chicago, R. I. & P. Ry., 183 Iowa 616, 167 N.W. 529.
The court, over appellants’ objection, gave Instruction No. 13, which was as follows:
"You are instructed that if you find from the evidence that the Northern Pacific Bailway Company used the railroad track involved in this action so exclusively for freight trains travel-ling upgrade at a slow rate of speed as to cause such use of said track to become an established custom and practice of the defendant; and that at the time of the collision involved in this action, plaintiff knew this custom and relied thereon during the time that he approached and crossed said crossing; and if you further find that„ at the time of the collision involved in this action the defendant railway company, contrary to such established use and custom, caused a fast-moving passenger train to be run upon and across said crossing which struck the motor vehicle driven by the plaintiff; then, in that event, you may consider these facts, together with the other evidence introduced in this ease, in determining whether the plaintiff and the defendants used the care required of them, as such care is defined in these instructions, at said crossing at the time of the collision.” Not only is this instruction error, but it is not in consonance with court’s Instruction No. 24, which was:
"The plaintiff, while driving his truck toward the crossing, was not entitled to assume that the defendants would operate their trains at any particular time or speed.”
[205]*205Appellants’ objection to court’s Instruction No. 13 was that respondent had no right to make any assumption of any speed whatsoever. On the particular facts of this case that objection was good.
Respondent labored to exculpate himself from blame for his failure to exercise due care on two grounds, considered separately above — the first — that neither bells rang nor whistle blew for this crossing. The second — that customarily appellants had used this Low Line for slow-moving freight trains whereas on the day of the accident respondent was caught by surprise by a fast-moving passenger train. Appellants concede that the evidence as to the first violation of duty, failure to whistle or to ring the bell, is sufficient to warrant the jury in finding appellants negligent. On the second, appellants concede nothing. We find authorities overwhelmingly against respondent on the first, and against respondent on the second. But, somehow not quite clear, respondent argued that the two together brought his case within the following authorities, which he cited: Hendrickson v. Union Pac. Ry., 17 Wash.2d 548, 136 P.2d 438, 161 A.L.R. 96; Broberg v. Northern Pacific Ry., 120 Mont. 280, 182 P.2d 851; Dimich v. Northern Pacific Ry., 136 Mont. 485, 348 P.2d 786; Farrell v. Erie Ry., 2 Cir., 1905, 138 F. 28; Morris v. Boston & M. R. R., 85 N.H. 265, 160 A. 52; Cox’s Adm’r v. Cincinnati, N. O. & T. P. Ry., 238 Ky. 312, 37 S.W.2d 859; Bradley v. Ohio River & C. Ry., 126 N.C. 735, 36 S.E. 181; Ohrmann v. Chicago & N. W. Ry., 223 Minn. 580, 27 N.W.2d 806; Wolf v. New York, C. & St. L. R. R., 347 Mo. 622, 148 S.W.2d 1032; Los Angeles & S. L. R. R. v. Umbaugh, 61 Nev. 214, 123 P.2d 224; Case v. Northern Pacific Terminal, 176 Or. 643, 160 P.2d 313; Missouri-Kansas-Texas Ry. Co. v. Wardlow, 10 Cir., 1959, 262 F.2d 681. These eases are not in point nor can any of them be said to be fairly analogous. Each case involves a standing train on a crossing, dark or foggy night, obscure crossing, extra-hazardous crossing, failure to ring bell or blow whistle, excessive speed (some[206]*206times going through a city), or some automobile passenger who could hardly be held answerable for negligence. Most of the cases do not involve contributory negligence as an issue. In the Broberg case, supra, plaintiff was a passenger in a car driven by Mrs. MeFarren who ran into a standing gondola, dark in color, on a cloudy and very dark night. The issue was the negligence of the defendant. In the Umbaugh case, supra, the mother of an adopted daughter killed on a railroad crossing-in a ear driven by her adopting father brought the suit.
Missouri-Kansas-Texas Ry. v. Wardlow, supra, is probably respondent’s most favorable case. There was evidence that a passenger train, using- a track usually used by freight trains only, entered the crossing where the accident occurred on Main Street in Sand Springs, Oklahoma, at a speed between forty-eight and seventy miles per hour when the city ordinance limited the speed of trains within fifteen miles per hour. Plaintiff approached the crossing- going twenty miles per hour, did not expect a train, and “At a distance of 55 to 60 feet north of the tracks, plaintiff looked to the right and did not see or hear the on-coming train. At this point the track to the west could be seen for about 125 feet. He then looked to the east, and when he turned his attention back to the street, ‘the train came roaring through’ and he was unable to prevent the collision.” He ran into the diesel engine. The court affirmed judgment on the verdict for plaintiff, holding that defendant’s negligence and plaintiff’s contributory negligence were for the jury.
Careful analysis, of the cases cited, does not disclose reason or authority to disturb our decision. Further examination of them could only unduly lengthen this opinion.
■ In fairness to respondent, we have carefully examined his contention that the fact that Alex H. Cloyd, going north, crossed the track and passed respondent, of necessity, not far north of the railroad track, should exculpate plaintiff in that his attention was thereby diverted. He leans heavily upon [207]*207Walters v. Chicago, Milwaukee & Puget Sound Ry., 47 Mont. 501, 133 P. 357, 358, 46 L.R.A.,N.S., 702, where plaintiff attempted to drive his automobile over a railway crossing situated in a cut eight to twelve feet deep and was hit by a train running from forty-five to fifty-five miles an hour. Vision was restricted. The testimony tended to show that plaintiff had both looked and listened. He did not stop-. The accident happened July 1910. The case was decided June 1913. Section 72-164 of our Revised Code was enacted 1919. The court refused to follow the rule to “stop, look, and listen”. In the instant case, respondent did not even see the Cloyd car — he so testified. Our case is further distinguishable in the physical environment surrounding the point where the accident happened. Walters did look and listen. He did not discover the train’s approach. He did not try to use, as an excuse, that his attention was diverted by the Canty car as the respondent does, in the instant case, argue and insist that his attention was diverted by the Cloyd car that he testified he did not see.
Respondent also cites Walsh v. Butte, Anaconda, etc., Ry., 109 Mont. 456, 97 P.2d 325, where the administratrix sued for death of an automobile driver who drove into a moving train in the nighttime when the view was obstructed by buildings and structures and the night was dark and foggy, the train was painted black, and the crossing gates were up, inviting the deceased to proceed. The cases relied upon by respondent are neither authoritative, persuasive, nor applicable in this case.
Respondent argues that he is entitled to go to the jury on the presumption that a person exercises ordinary care for his own safety. This principle is codified in section 93-1301-7, subd. 4, R.C.M., which reads:
“All other presumptions are satisfactory, if uncontradicted. They are denominated disputable presumptions, • and may be controverted by other evidence. The following are of that kind: * * *
[208]*208“4. That a person takes ordinary care of liis own concerns. ’ ’
To sustain his position, respondent cites Baltimore & Potomac R. R. Co. v. Landrigan, 191 U.S. 461, 24 S.Ct. 137, 48 L.Ed. 262; Choctaw, O. & G. Rd. Co. v. Baskins, 78 Ark. 355, 93 S.W. 757; and Fulton v. Chouteau County Farmers’ Co., 98 Mont. 48, 37 P.2d 1025. In the first two cases, there was an absence of evidence whether the plaintiff (or plaintiff’s deceased) stopped, looked and listened in the Landigran case or looked in the Baskins case, before attempting to go over the tracks at railway crossings. In both cases, the presumption of due care on the part of the injured persons rested upon a complete lack of any evidence to the contrary.
In the Fulton case, supra, language in Brown v. Cent. Pac. Ry., 2 Cal.Unrep. 730, 12 P. 512, is construed in a manner that might give little comfort to respondent. But the rule of . law is stated in the Fulton case, supra, 98 Mont, at page 68, 37 P.2d at page 1031, as follows:
‘ ‘ Contributory negligence is a question of law only when the evidence is of such a character that it will support no other legitimate inference, and even where the facts are undisupted, if reasonable minds might draw different conclusions upon the question and from the evidence, the question is one for the jury.”
In Meehan v. Great Northern Ry., 43 Mont. 72, 114 P. 781, 783, this court said, quoting Harrington v. Butte, etc., Ry., 37 Mont. 169, 95 P. 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.’ ”
This rule has been often applied. Roberts v. Chicago, M. & St. P. Ry., 67 Mont. 472, 216 P. 332; Rau v. Northern Pac. Ry., 87 Mont. 521, 289 P. 580; Holland v. Pence Automobile Co., 72 Mont. 500, 234 P. 284; and many other cases. In the [209]*209Roberts case, this court adopted the following language, in 67 Mont, at page 478, 216 P. at page 334: “Plaintiff insists that under the rules as stated, since the testimony of decedent cannot be obtained, he was entitled to have the case go to the jury for the reason that ‘there was no positive evidence tending to establish or prove that the deceased was not exercising ordinary care and prudence at the time of the collision,’ and cites subdivision 4, section 10606, Revised Codes of 1921 [now R.C.M.1947, § 93-1301-7], which provides that there is a disputable presumption ‘that a person takes ordinary care of his own concerns.’ In addition to this section, we are cited a number of authorities which deal with the question. Among these is 17 C.J. 1304. The rule there announced bears out the statement of counsel, but there is added the qualification that ‘this presumption does not apply where the surrounding facts and circumstances show to the contrary.’ ”
20 Am.Jur., Evidence, § 158, p. 163, correctly sums up the matter as follows: “Where facts appear, presumptions recede. Thus, the necessity for resorting to presumptions disappears where there is direct and positive evidence upon the matter in issue.”
The motion for a directed verdict should have been granted and judgment entered for appellants. We need not decide all issues raised. It would unnecessarily extend this decision, and could in no way alter our judgment.
The dissenting opinion ignores the law in Montana that the driver of a motor vehicle must look not only straight ahead, but laterally ahead. He is presumed to see that which he could see by looking. He will not be permitted to say that he did not see what he must have seen had he looked. The duty to keep a lookout includes the duty to see that which is in plain sight. Monforton is, in legal effect, in the position of having actually seen the passenger train, in the words of Boepple v. Mohalt, 101 Mont. 417, 54 P.2d 857. Autio v. Miller, 92 Mont. 150, 11 P.2d 1039; Johnson v. Herring, 89 [210]*210Mont. 420, 300 P. 535; McNair v. Berger, 92 Mont. 441, 15 P.2d 834; Grant v. Chicago, etc., Ry., 78 Mont. 97, 252 P. 382; Webster v. Mountain States Tel. & Tel. Co., 108 Mont. 188, 89 P.2d 602; accord.
Monforton would have us believe that his view was obscure, that the steering wheel in his cab was an obstruction to a clear view out of the right cab window, in that it restricted his bodily movement whereby he could not get a clear view out across the wide open field that offered no obstruction whatever. Thereby Monforton is thrown cross-wise with section 72-164, R.C.M. 1947, wherein the State Legislature, in 1919, enacted this statute, ever since in force, that all persons driving motor vehicles where the view is obscure, or when a moving train is within sight or hearing, shall bring the vehicle to a full stop not less than ten nor more than one hundred feet from where the highway intersects the track. Neither Walters v. Chicago, Milwaukee & Puget Sound Ry., 47 Mont. 501, 133 P. 357, 46 L.R.A.,N.S., 702, supra, decided before the statute was enacted nor any decision by this court since the enactment can change or obliterate it.
In Broberg v. Northern Pac. Ry., 120 Mont. 280, 182 P.2d 851, 860, this court defined “obscure” as used in section 72-164, R.C.M.1947, as “not clear, full or distinct”, or “when it was not clear and distinct”. Obviously, as Monforton proceeded southward, and approached the crossing, this train was, or it was not, in clear, full or distinct view. Justice Adair states that Monforton’s view was not obscure nor was the moving train within the sight of Monforton. Iva Carpenter following Monforton a few hundred feet behind him saw the train approaching for some little distance, and “just felt that Mr. Monforton would naturally see it and stop”. Wallace Cox preceded Monforton going southward into Belgrade just before the accident in an unloaded truck, looked down the track and saw the train one or two miles away. He “always looked down the track before he came to the crossing”. It is not de[211]*211ductible from the evidence either that Monforton’s view was not clear and distinct or that the moving train was not within Monforton’s sight.
This action sounds in ordinary negligence of appellants, hereinabove admitted. The defense is contributory negligence, the law upon which has been written by this court in black and white.
The record presents no evidence whatever that appellee’s attention was distracted by the Cloyd car or that Monforton, because of any distraction, failed to make the necessary look-out for the train. To find otherwise involves an assumption or inference based upon speculation or conjecture that the Cloyd car did distract his attention and the second assumption or inference based on the first, that this distraction was the cause of the failure of Monforton to discover the train’s approach. But under section 93-1301-1 to 4, and Fisher v. Butte Electric Ry., 72 Mont. 594, 235 P. 330, one inference cannot be drawn from any other inference or presumption.
Justice Smith wrote an opinion concurred in by two other justices in Sun Oil Co. v. Seamon, 349 Mich. 387, 84 N.W.2d 840. Chief Justice Dethmers wrote a dissenting opinion in the ease, concurred in by two other justices. Justice Kelly wrote a separate opinion, agreeing with the trial court’s opinion and that the judgment should be affirmed upon the ground that the statutory clear distance rule in Michigan is subject to an exception when an emergency situation was created by defendant. In his separate opinion, Justice Kelly concurred with Justice Smith’s opinion on this point only. Justice Smith, quoted by Justice Adair in his dissent, did not muster a majority upon the other grounds he asserted to support his opinion that defendant’s conduct amounted to willful and wanton misconduct and under the statutory clear distance rule, contributory negligence was not a defense.
The clear distance rule has no application to the instant case. There is no plea of willful or wanton misconduct on appellants’ [212]*212part, therefore no question of barring the plea on that ground as was done in Sun Oil Co. v. Seamon, supra.
In conclusion, the dissent seems to us to ignore the trial court’s instruction No. 24, that appellee was not entitled to assume that appellants would operate their trains at any particular time or speed. ,
The judgment appealed from is reversed, with directions to enter judgment for appellants.
MR. CHIEF JUSTICE HARRISON, MR. JUSTICE CASTLES and THE HONORABLE W. M. BLACK, District Judge, sitting in place of MR. JUSTICE ANGSTMAN, concur.