                              No. 12251

           I N THE S P E E COURT O THE STATE O MONTANA
                    UR M          F           F

                                1972



STATE O MONTANA ex r e 1 BURLINGTON
       F
Northern, Inc., a Corporation,

                         Relator,



THE DISTRICT COURT O THE FIRST JUDICIAL
                    F
DISTRICT O THE STATE O MONTANA, I N AND
          F            F
F R THE COUNTY O LEWIS AND CLARK, THE
 O              F
HONORABLE TRUMAN B A F R , JUDGE PRESIDING.
                  R DO D

                         Respondents.



ORIGINAL PROCEEDING :

Counsel of Record:

         For Relator:

              Gough, Booth, Shanahan and Johnson, Helena, Montana.
              Ronald F. Watennan argued, Helena, Montana.
              Ward Shanahan appeared, Helena, Montana.

         For Respondents:

              Small, Cummins and Hatch, Helena, Montana.
              Robert Cumins argued, and Carl Hatch appeared, Helena,
               Montana.
              Corette, Smith and Dean, Butte, Montana.
              Keller, Reynolds and Drake, Helena, Montana.



                                    Submitted:      April 10, 1972

                                        Decided :   f M Y I 1r3ngA
Filed:   MAY 1 l. 1m..                                               ?
Mr. Justice Wesley Castles delivered the Opinion of the Court.

     This is an application for a writ of supervisory control
seeking to direct the district court to enter summary judgment
in favor of relator.     On ex parte application this Court issued
an order to show cause returnable on April 10, 1972. Return
was made in the form of a motion to quash, a memorandum in sup-
port thereof, a brief and oral argument by counsel.
     On March 17, 1972, the district court of the first judicial
district, the Hon. Truman G Bradford presiding, denied relator's
                           .
motion for summary judgment in the case of Tonya G. McCausland v.
The City of Helena, Montana, the Montana Power Company and
Burlington Northern Inc., Civil No. 34969.         Relator then filed
its application here.
     The suit in the district court arose from the electrocution
death of Danny E. McCausland on May 5, 1971, near Silver City,
Montana.   McCausland was a Western Union lineman, a member of a
crew removing Western Union telegraph lines between Helena and
Great Falls.    The lines were attached to relator Burlington
~ o r t h e d ~ o l e s crossarms.
                    and              c el at or ' s communication lines nor-
mally carried between 6 to 48 volts, at the time of the accident.
     The electrocution occurred when a Montana Power Company
transmission line was pulled across relator's communication lines
in Helena, near National Avenue at a point some seventeen miles
distant from where McCausland was working.         The "pulling" of the
transmission line across the communication lines occurred when one
John Tomaskie, a city of Helena employee, drove a truck and lowboy
unit hauling a D-7 caterpillar tractor with an exhaust stack
some fourteen feet high under a Montana Power Company service line,
breaking a power pole which in turn pulled a transmission line
loose for two spans, dropping or pulling the lines across the
relator's communication lines causing them to become electrified.
The electrical power was transmitted over the communication lines
to the area where McCausland was working.
     The Montana Power company's line was "affixed to an insulator
held by the wooden pin, and fastened to the insulator by a separate
wire holding the transmission line to the insulator".   The trans-
mission line was 32 feet above ground at the point of impact with
relator's communication lines, which in turn were 24'6" above
the ground, thus leaving 7'6" between the lines prior to the
accident.   The span between the poles supporting the transmission
line which was pulled onto the communication lines was 155 feet.
The transmission line carried 2400 volts to ground, 4160 phase-
to-phase and impressed upon relator's communication lines 2400
volts.
     Further east from the point of contact, a Montana Power
Company service line attached to a building, the Bradford Machine
Works.   At its lowest point, where it connected to the building,
the service line was 12'0" above ground; and it connected to
the power pole at a height of 22'5".   The power pole with this
service drop, the pole broken, was the second power pole east
of National Avenue.
     On the morning of May 5, 1971, Tomaskie, the city employee,
went to the city shops where he picked up a truck and lowboy unit.
He drove to the city land fill dump and loaded a D-7 tractor
which he hauled towards National Avenue where the city was placing
a water line.   Tomaskie drove north on National Avenue, across
relator Burlington Northern's railway tracks.   This crossing
was close to Bradford Machine Works.   Tomaskie testified by
deposition that since National Avenue was "pretty well blocked
off" with heavy equipment, he turned east and drove on a dirt
road which paralleled relator's tracks and ran south of Montana
Power Company's transmission line. A motor patrol, a heavy road
equipment vehicle, was on that road, so Tomaskie turned into an
area between the Bradford Machine Works and Montana Power Company's
pole, which was later broken.
     Tomaskie stated that he was then "cuttind'a comer and was
driving near or over a footpath, running through a grassy area.
As Tomaskie drove the truck under the service line, the fourteen
foot high exhaust stack of the D-7 hit the line strung between
the power pole and the building.   Tomaskie did not see the line
and continued to drive until the power pole broke.    When the pole
broke, it pulled one transmission line loose for two spans to the
west, pulling it across relator's communication lines.    The
weather was clear, it was dry, and it was daylight.    The police
report identified the area as "private property owned by B N
                                                          ..
Railroad and Wm ~radford".
     The foregoing facts are uncontradicted and come from dis-
covery proceedings.
     Plaintiff, as administratrix of the estate of Danny E.
McCausland, brought action against the city of Helena, the Montana
Power Company, and the relator, Burlington Northern, Inc., to
recover damages for injury and death of decedent. Relator filed
a motion to dismiss; an answer and crossclaim against the city
of Helena; and a motion for summary judgment as against plaintiff.
The motion for summary judgment was based upon the pleadings, depo-
sitions, answers to interrogatories and answers to requests for
admissions.   The motion was on the grounds that there was no
genuine issue as to any material fact as to whether plaintiff
could recover upon the theory of negligence which proximately
caused decedent's death, against defendant and relator Burlington
Northern, Inc. or, to state the grounds a little more clearly,
that relator committed no act nor omitted to perform any act
which was negligent as to decedent or that relator's acts in any
event were not the proximate cause of the injury and death of
decedent.
    A hearing was had by the district court.           Plaintiff offered
no new evidence nor, for that matter, any brief challenging the
law as cited by the movant, relator here.
     Plaintiff, in her amended complaint, alleged three acts
committed by the relator, specifically:     ( ) that relator's
                                             1
granting of an easement to Montana Power Company was negligent;
(2) that permitting the Power Company to erect power supply lines
over relator's communication lines was negligent; and ( ) that
                                                       3
failure to notify the Power Company of a violation of city of
Helena Ordinance No. 4-3-19 was negligent.
     On   the motion for summary judgment, relator contends that
in each instance the record establishes as a matter of law that
there was, in fact, no negligence committed and thus no genuine
issue of material fact.     Relator adds a further ground that, in
any event, none of its acts were the proximate cause of decedent's
death. Relator argues the intervening and superseding negligence
of the city of Helena which, through its employee, drove a truck
over a vacant field on private property with a D-7 tractor was
the proximate cause.     That the employee, charged by law with seeing
the service wire strung between a private building and the power
pole, nevertheless continued to drive causing the breaking and
collapsing of the charged line across the communication line some
two span lengths away.
    As mentioned heretofore, at the hearing on relator's motion
plaintiff did not come forward with any new evidence nor brief.
     In Roope v. Anaconda Company,          Mont   .        Y   494 P.2d
922, 29 St.Rep. 170, 174, this Court stated:
     "The burden of establishing the absence of any
     issue of material fact is on the party seeking
     summary judgment. Byrne v. Plante, 154 Mont. 6, 459
     P.2d 266, and citations therein. But where, as here,
    the record discloses no genuine issue as to any
    material fact, the burden is upon the party op-
     osing the motion to present evidence of a material
    znd substantial nature raising a genuine issue of
    fact. Flansberg v. Mont. Power Co., 154 Mont. 53,
    m p . 2 d 263. and authorities cited therein."
    (Emphasis added)
     Failure of the party opposing the motion to either raise
or demonstrate the existence of a genuine issue of material
fact, or to demonstrate that the legal issue should not be
determined in favor of the movant, is evidence that the party's
burden was not carried.    Summary judgment is then proper, the
court being under no duty to anticipate proof to establish a
material and substantial issue of fact.
     A writ of supervisory control properly issues where the
trial court erred in refusing to grant a motion for summary
judgment, where no genuine issue as to any material fact existed
in the record.    State ex rel. J.C. Penney Co. v. District Court,
154 Mont. 481, 465 P.2d 824. A writ is proper in the present
case, as it is the sole means whereby relator Burlington Northern
can avoid the substantial prejudice of being forced to defend a
suit where, as a matter of law, neither negligence nor proximate
cause is established in the record.
     Plaintiff charges the railroad with three alleged acts of
negligence, heretofore set out.   Plaintiff bears the burden of
establishing certain material elements to prevail in a negligence
action.    In Pickett v. Kyger, 151 Mont. 87, 100, 439 P.2d 57, the
Court stated these elements to be:
     "1
     ()     A duty owing from defendant to plaintiff;
     "2
      ()    A breach of that duty by defendant;
     "3
      ()     Constituting proximate cause of
     "( ) Injuries and damage to plaintiff. "
       4
    Montana statutes adopt as governing the National Electrical
Safety Code in all cases where no statutory provision is made for
the construction and installation of overhead electrical power
lines, section 24-125, R.C.M, 1947, and this is true of "construc-
tion [of lines] where wires for power, heat, light, telephone,
telegraph or signal cross each other."
     The National Electrical Safety Code establishes minimum
clearances for wires with a span length of not more than 250 feet
for lines in a medium loading district.    Montana is in a medium
loading district.     The span in question where the Montana Power
Company's line crossed the Burlington Northern's communication
line was 155 feet.     The code established minimum clearances for
crossing of wires carried on different supports. For open supply
wires, 750 to 8700 volts, crossing a communication wire, the
minimum clearance is 4 ' , increased to 6' where the supply wire
crosses a communication line within 6 feet horizontally of the
communication pole.     The Montana Power Company's supply line was
7'6" above the Burlington Northern's communication line.
     An open supply line's minimum clearance to ground for lines
carrying 750-15000 volts, crossing railroad tracks handling
freight cars on top which men are permitted to work, is 28 feet.
Over tracks not included above, the minimum is 20 feet, the same
minimum required over public streets and driveways. Over spaces
accessible to pedestrians only, the minimum clearance required
is 15 feet, The Montana Power company's supply line here was
maintained 32 feet above ground.
     The same section of the National Electrical Safety Code,
Sec. 233A,Table 1, establishes minimums for communication lines,
the only minimum standard which relator Burlington Northern is
charged with meeting.     The record establishes the Burlington
Northern's communication lines were next to the Burlington
Northern's tracks.     Communication lines crossing railroad tracks,
except where trainmen are working on top of freight cars, and on
public streets, are required to be maintained at 18 feet. Over
spaces accessible only to pedestrians, the minimum is 15 feet,
over driveways, 10 feet.   The record establishes the Burlington
Northern lines were maintained at 24'6".
                                                     I1
     The city of ~elena's ordinance requires wires        securely
fastened on supports" to be maintained 4 feet above telegraph
wires.   The Montana Power Company's pole was 7'6" above the
Burlington ~orthern'scommunication lines.
     The National Electrical Safety Code defines insulation as
"separated from other conducting surfaces by a dielectric substance
- air
or       space permanently offering a high resistance to the pas-
sage of current."   The National Electrical Safety Code requirement
for vertical clearances for communications lines has been set
forth above.   The Burlington Northern's comrnunication line
exceeded the minimum distances required between lines and ground
and the Montana Power Company's transmission line exceeded all
minimum distances required between the supply line and the communi-
cation line.   The distances were almost twice that required by the
city of Helena's ordinance.
     But, of course, discussion of the National Electrical Safety
Code standardsand the fact that they were not violated, ignores
the important issue that in each instance, except as to clearance
between the ground and the Burlington ~orthern'scommunication
lines, compliance with the National Electrical Safety Code standards
rested upon the Montana Power Company, not the Burlington Northern.
Even assuming that a code requirement was violated, the record
would still not contain any genuine issue of material fact which
suggested Burlington Northern's negligence.
     Even the city of ~elena's ordinance, which plaintiff cites
in her amended complaint, imposes no actual duty upon the Burlington
Northern in the construction of lines above its wires.       The ordinance,
No. 4-3-20, does grant an individual in relator's class the
right to serve notice upon a utility for violation of the ordin-
ance.     However, the right is permissive only and does not apply
in this instance in any event, as the Montana Power Company has
not violated the ordinance. Further, the ordinance does not give
the relator, Burlington Northern, any right to remove public
utility lines in violation of the ordinance, but only gives the
owner of the communication lines the right to serve notice of
violation of the ordinance upon the public utility. The burden
of actually putting the service line into compliance with the
code rests upon the Montana Power Company, not the Burlington
Northem.
         The record shows that the Burlington Northern violated no
statute, code, standard, or city ordinance. Does it support any
allegation of negligence made against relator? Before discussing
forseeability, it is proper to determine what precise duty was
owed decedent by the railroad. The record establishes, without
contradiction, that decedent was working on the property of
relator.     Decedent, a Western Union employee, was engaged solely
in Western Union work---removing its telegraphic system wires
strung between Helena and Great Falls.
        The duty owed decedent by relator depends upon the category
into which decedent falls with regard to his relationship with
the railroad. The record negates any allegations that decedent
was an employee of the railroad; likewise, it negates any allegations
that decedent's employer, Western Union, was engaged in performing
any actions for the railroad. Decedent and his employer were en-
gaged solely in Western Union work.    Was decedentthien a business
invitee of relator, or merely a licensee upon railroad property?
     The distinction is important as it determines the duty owed
McCausland.    This Court said in Teesdale v. Anschutz Drilling Co.,
138 Mont. 427, 433, 357 P.2d 4:
     "In the case of Jonosky v. Northern Pac. Ry.,57
     Mont. 63, 73, 187 P. 1014, 1015, this Court stated
     the distinction between invitation and license as
     follows:
     "'* * * Much of the confusion arises from the failure
     of the courts to distinguish between a license and an
     invitation, and particularly between an implied license
     and an implied invitation. The distinction is not
     merely one of descriptive phraseology, but has its
     foundation in sound common sense. An invitation is
     inferred where there is a common Interest or mutual
     advantage, while a license is implied where the object
     is the mere pleasure, convenience, or beneiit oi the
     person enjoying the privilege.'"(Emphasis added)
See also: Vogel v. Fetter Livestock Co., 144 Mont. 127, 137,
138, 394 P.2d 766; Blackman v. Crowe, 149 Mont. 253, 256, 425
P.2d 323.
     To categorize an individual as an invitee of another, the
record must show that there was some "common interest or mutual
advantage" gained by the property owner. Where the evidence
establishes only that the object of the individual's presence
was the mere pleasure, convenience or benefit of the person en-
joying the privilege, that person is merely a licensee.
     The distinction is important, of course, because the duty
owed to an invitee is different and much greater than the care
owed to a licensee.     In Vogel it was said that in an invitee-
invitor relationship:
     "* * * defendant owed plaintiff the duty of exercising
     reasonable or ordinary care, and to warn plaintiff of
     any hidden or lurking danger although defendant was not
     an insurer against all accidents and injuries to invitees. 11
     A licensee, on the other hand, is owed a lesser duty. This
Court in Nichols v. Consolidated Dairies, 125 Mont. 460,466, 239
P.2d 740, said:




     Plaintiff's case fails to present any evidence of the
failure of relator to refrain from acts of wilful and wanton
negligence.   Indeed, not only does the record fail to support
any finding of wilful and wanton misconduct on the part of
relator, the complaint does not even make such allegation.    But
the record does support the contention that McCausland was a
licensee, not an invitee of relator---his presence and that of
the entire Western Union line crew on Burlington Northern property,
was solely for the convenience and benefit of the Western Union
Company. There are no facts from which this Court, or the dis-
trict court, could have concluded that the Western Union line
crew had some common interest with or performed some act of
mutual advantage for the railroad.
     Having established what the duty was---what facts are there
to support any conclusion that the duty was breached? None!
       The first alleged ground does not constitute negligence.
Applying the appropriate standard of care to which relator must
observe, the duty to refrain from acts of wilful and wanton
negligence, it is clear that the grant of the easement did not
breach any duty owed decedent.
     Considering the third ground of alleged negligence, out of
order, relator is not charged with violation of an ordinance
relative to the construction of transmission lines above its
communication line.   But relator is charged only with a failure
to inform the Montana Power Company of the alleged violation.
The record does not establish any violation of the ordinance
and the ordinance gives relator only the right to inform the
Montana Power Company of a violation, The statute creates no
duty, but establishes only a permissive right to inform the
Montana Power Company of a violation, Thus no duty to act is
established by the statute. Failure to serve notice, even
assuming a violation of the ordinance, was not negligence.
     Finally, plaintiff's second ground was that the Burlington
Northern was negligent in allowing the Montana Power Company to
cross its communication lines with power transmission lines
without protection against electrification. The second ground,
much like the first, must be construed in light of the statutory
power the Montana Power Company had to utilize eminent domain
and acquire precisely this right---the right of crossing the rail-
road's communication lines with its electrical transmission sys-
tem.    Further, the record demonstrates that the Montana Power
Company did comply with all statutory code and ordinance minimum
requirements.
       Accordingly, there were no genuine material facts establishing
negligence, We need not go further into the second ground, that is,
foreseeability and probable cause, It is clear the summary judg-
ment should have been granted and relator, Burlington Northern,
Inc., dismissed from the suit,    It is so ordered.



                                      ~ssoQate
                                             Justice




ii
        Associate Justices,
