the other to make an inspection and copy of entries of account, documents, or papers in his possession or under his control which contain evidence relating to the merits of the action or defense. That these provisions refer exclusively to such entries, documents, and papers as might be introduced in evidence is apparent from the next sentence in the section, which reads as follows: "If compliance with the order be refused, the court may exclude the entries of accounts of the book, or the document, or paper from being given in evidence, or if wanted as evidence by the party applying, may direct the jury to presume them to be as he alleges them to be." to do more than prescribe an orderly procedure for the trial of criminal cases, and section 9272 in effect declares that the provisions of the preceding section are directory merely, and this is the view of other courts upon similar statutes. United States v. Sprague, 8 Utah, 378, 31 Pac. 1049; Holsey v. State, 24 Tex. App. 35, 5 S. W. 523. [5] 3. The trial of this case commenced on March 6th and extended through the 12th. During the first day the regular panel was exhausted, and a recess was taken to secure a special venire. The jury was completed on the afternoon of the 6th, and adjournment was then taken until the 7th. At noon on the This is also the construction placed upon 7th the recess was taken until 1:30 p. m. of similar statutes in other jurisdictions. Lesthat day. It is conceded that at each of ter v. People, 150 Ill. 408, 23 N. E. 387, 37 N. these three adjournments the trial court inE. 1004, 41 Am. St. Rep. 375; Silvers v. Junc- structed the jurors not to converse among tion R. R. Co., 17 Ind. 142; Oro W. L. & P. themselves, or permit any one else to conCo. v. Oroville (C. C.) 162 Fed. 975. The ex verse with them, about the case; but appelparte statement of the prosecuting witness lant contends that the court omitted to adcould not have been introduced as substan-monish the jurors not to form or express any tive evidence, and, however helpful it might have been to defendant, he was not entitled to it. The statute does not require the state to lay bare its case in advance of the trial. [3, 4] 2. Upon the conclusion of the opening statement of the case, the defendant mov opinion upon the case until it was finally submitted, as required by section 9301, Revised Codes, and that because of this omission a new trial should be granted. The record discloses that when the first recess was taken the jury had not been com ed for a dismissal of the action for the fail-pleted. For this reason the statute has no ure of the county attorney to include in such statement a reference to the fact that the alleged crime was committed in Missoula county, and error is predicated upon the adverse ruling of the trial court. application. The term "jury," used in section 9301, means a body of men returned from the citizens of a particular district before a court of competent jurisdiction and sworn to try and determine by verdict a question of fact. Section 6333, Rev. Codes. [6] The record further discloses that when the second adjournment was taken "the jury It is the rule in civil cases that the court may dismiss an action upon the conclusion of the opening statement, if such statement discloses affirmatively that the party making it cannot prevail. Redding v. Puget Sound Iron Works, 36 Wash, 642, 79 Pac. 308. The reason for the rule is that it would be an idle waste of time to hear evidence which could not possibly benefit the party offering it. A case illustrating the rule is Oscanyan v. Arms Co., 103 U. S. 261, 26 L. Ed. 539, in which it appeared from the opening statement of counsel for plaintiff that the contract sued upon was void as against public policy. In the case just cited it is assumed that the rule is the same in criminal cases as in civil cases, and we have no doubt that the assumption is correct. If in this instance the opening statement of the county attorney had disclosed affirmatively that the of-new trial be granted because of the failure fense charged was committed outside of Missoula county, it would have been idle to proceed, for the court would have been without jurisdiction, but would have had express statutory authority for discharging the jury. Rev. Codes, § 9292. [7] It is further conceded by defendant that at each adjournment taken after the noon recess on the 7th the jury was properly admonished as required by statute, and we have presented then the question: Shall a of the court to admonish the jury fully when the noon recess was taken on the 7th? We do not mean to detract in the least from the importance of the statute in question. It was enacted to be observed. Its evident purpose is to secure a true verdict based If the contention of appellant should be solely upon all the evidence in the case, and upheld, it would follow that upon the trial to that end prevent the jury receiving eviof every criminal case the county attorney dence outside the record, prevent interested must, as the first step, make an opening parties from influencing, or attempting to statement complete in every detail, under influence, the jury out of court, and prevent penalty of dismissal for his failure in whole the jurors from forming conclusions from or in part. Section 9271 does not undertake first impressions, or upon the evidence offer ed by one side only. The jury is made an important factor in our judicial system, upon the theory that the average jury will be constituted of men of average intelligence; and though the statutory admonition should be given at every adjournment of court during a trial, it would reflect seriously upon the mental capacity and integrity of the jurors in this case to say that any impressions formed from the evidence received during the forenoon of the 7th could not be, and were not, completely removed by the repeated admonitions of the court, thereafter given, that they should not form or express any opinion as to the guilt or innocence of the accused until the cause was finally submitted. Whatever error was committed at the noon recess on the 7th was cured by the subsequent action of the court. [8] 4. Appellant complains that he was not present when the instructions were settled, and if the settlement of the instructions is a part of the trial proper, then error was committed, for the defendant charged with a felony must be present throughout the trial. Section 9233, Rev. Codes. The statute determines inferentially that the settlement of the instructions is not a part of the trial, for section 9271 requires that the instructions shall be settled "without the presence of the jury," and the presence of the jury is indispensable to the trial of one accused of a felony. Section 9232. It follows that, if the instructions can be settled without the presence of the jury, they may likewise be settled without the presence of the defendant. Indeed, the settlement of the instructions is nothing more nor less than the determination of questions of law preliminary to the next step in the trial-the charge to the jury. Upon principle the case of State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026, is authority here. verdict, and presented said verdict to the court, which is as follows, to wit," etc. Construed fairly, this language must be held to mean that the defendant was present in court continuously from 3 p. m. until after the verdict was returned. It is equivalent to saying: "The defendant being present in court, each of the following proceedings was had: (a) The and submitted; (c) the jury retired to consider jury was instructed; (b) the cause was argued of their verdict; and (d) the jury returned their verdict as follows," etc. McCoggle v. State, 41 Fla. 525, 26 South. 734; Lawson v. Territory, 8 Okl. 1, 56 Pac. 698. [10, 11] 6. Exception is taken to certain remarks of counsel for the state in his closing argument to the jury. We do not approve the language employed by counsel, but the evidence is not brought to this court, and we are not, therefore, in position to say that counsel so far departed from the rules of legitimate advocacy as to require a reversal of this judgment. It may be that the evidence points to defendant's guilt so conclusively that no possible prejudice could have resulted from the objectionable remarks. The judgment and order are affirmed. BRANTLY, C. J., and SANNER, J., con cur. al. (No. 3918.) (55 Mont. 189) (Supreme Court of Montana. Sept. 30, 1918.) 1. NEGLIGENCE 85(3) CONTRIBUTORY NEGLIGENCE-CHILDREN. Generally, after a child has reached the age of 14 years, he is presumed capable of contributory negligence. 2. NEGLIGENCE 95(2) CONTRIBUTORY NEGLIGENCE-MINORS-IMPUTATION. [9] 5. A defendant on trial, charged with SHERRIS v. NORTHERN PAC. RY. CO. et the commission of a felony, must be personally present in court when the verdict is returned (section 9320), and it is held quite generally that the fact of his presence must appear from the record (State v. De Lea, 36 Mont. 531, 93 Pac., 814). It is the contention of appellant that the record does not disclose that he was present when the verdict was received. The clerk's minutes recite that the taking of testimony was concluded on A minor within a few months of majority, who has supported himself since the age of Saturday, March 10th; that court then ad- 15 years, is presumed capable of contributory journed until March 12th at 9:30 a. m.; negligence, and hence the rule that the con that on March 12th the instructions were set-tributory negligence of a parent or legal cus tled, and about 3 p. m. of that day, "the de- todian is not imputable to the child has no apfendant being present in court, * * * the trial of said cause was resumed. The jury was instructed by the court, and after Every person is bound to an absolute duty argument by respective counsel the cause to exercise his intelligence to discover and avoid was submitted to the jury, who retired in dangers that may threaten him. charge of a sworn officer to deliberate upon 4. RAILROADS CROSSING a verdict. The jury subsequently returned JURY QUESTION. into court at 12:50 a. m., March 13, 1917, and announced that they had agreed upon a plication. 3. NEGLIGENCE 350(21) ACCIDENTS AT CONTRIBUTORY NEGLIGENCE Whether automobile passenger, injured in collision of train with automobile at railroad 1 crossing, failed to exercise ordinary care in approaching the crossing, held, under the evidence, for the jury. 5. RAILROADS track in the direction from which the train came was obstructed by a car standing on a parallel track over which he must pass to reach the crossing where the collision ocPASNEGLIGENCE-OB-curred; that he drove the automobile at a high rate of speed, without stopping it or reducing its speed, or taking any precaution to ascertain whether a train was approach 328(1) ACCIDENTS AT Automobile passenger, who sat in front seat with driver as automobile approached railroad crossing, cannot recover for injuries sustained in collision with train, where, though view of ing and that the collision was caused by track was obstructed, he failed to exercise or- Black's negligence, which must be imputed dinary care in avoidance of the danger of cross-to the plaintiff; and (2) that plaintiff himself ing. 6. NEGLIGENCE 93(1) IMPUTED NEGLI. GENCE-AUTOMOBILE PASSENGER-GUEST. Negligence of the driver of an automobile could not be imputed to a passenger, who was driver's guest. was guilty of contributory negligence in permitting Black to approach the crossing as he did, without giving him any warning or making any protest until it was too late to avoid the collision. Upon these defenses plaintiff joined issue by reply. The trial resulted in a judgment for the defendants. The plainPassenger of automobile approaching rail-tiff has appealed. road crossing must exercise ordinary care for his safety, and not blindly rely upon unaided care and vigilance of driver. 7. RAILROADS 327(12) CROSSING ACCIDENT-DUTY TO STOP, LOOK, LISTEN-AUTOMOBILE PASSENGERS. 8. APPEAL AND ERROR -HARMLESS ERROR. The contention is made by counsel in his behalf that the court erred in submitting to the jury instructions which in effect told 1170(9)—REVIEW them that, if they should find that Black was In action against railroad for injuries sus- guilty of negligence, they should return a tained in crossing collision by passenger of au-verdict for the defendants, thus recognizing tomobile, an instruction that driver's negligence could be imputed to plaintiff, was harmless, and under Rev. Codes, § 6593, not reversible error; where plaintiff, having been aware of danger and having had same opportunity as driver to observe approaching train, was himself negligent, if driver was negligent. the doctrine of imputed negligence. Counsel argue that the doctrine can have no application to this case, because the plaintiff was a minor when the accident occurred. Το sustain this contention they cite and rely upon the decision of this court in Flaherty Appeal from District Court, Missoula Coun-V. ty; Asa L. Duncan, Judge. Butte Electric Ry. Co., 40 Mont. 454, 107 Pac. 416, 135 Am. St. Rep. 630. They also Action by R. O. Sherris, an infant, by W. contend that the rule that the negligence of C. Sherris, his guardian ad litem, against a driver of a vehicle is to be imputed to a the Northern Pacific Railway Company, a person riding with him as his guest, when corporation, and others. Judgment for de- the driver does not sustain the relation tofendants, and plaintiff appeals. Affirmed. ward the guest of employé or agent, is un Gilbert J. Heyfron, of Missoula, and Maury, Templeman & Davies, of Butte, for appellant. Gunn, Rasch & Hall, of Helena, and Wm. Wayne, of Missoula, for respondents. court, notwithstanding the early decision in the rule was recognized and applied. Both BRANTLY, C. J. Action for damages for [1, 2] At the time of the accident, plaintiff a personal injury caused by a collision of a train of the defendant railway company with was within a few months of 21 years of age. an automobile in which plaintiff was being He had been permitted by his father to maintain himself from the time he had attained driven by Orville Black. The complaint alleges that the collision was caused by the the age of 15 years. He had lived away from negligence of the defendant McCann, the home, wherever he could find employment, engineer, in pushing several cars by means of earning wages. by doing ordinary farm work, a switch engine at an excessive rate of speed by feeding a threshing machine during the over the defendant company's track, desig- threshing season, by breaking horses, and nated as the east-bound main track, where it by performing services for his employer as The general rule is that aftcrosses Harris street in the company's yards a chauffeur. in the city of Missoula, without ringing the er a child has reached the age of 14 years bell or sounding the whistle; there being no he is presumed, as a matter of law, to be flagman at the crossing to warn persons ap capable of contributory negligence. White's proaching along the street, and the cars not Supp. to Thompson on Neg. § 315; 20 R. C. being provided with a lookout or a warning L. p. 128. The underlying principle of the light. The defendants, denying all the acts Flaherty Case is that, since a child of tender and omissions charged as negligence, alleged years-one under 3 years of age has not that the plaintiff was guilty of negligence the capacity to commit his person to the which contributed to his injury in this: (1) custody of another, he is not chargeable with That Orville Black, who was driving the the negligence of another who occupies toautomobile, knew that the view along the ward him the relation of parent or legal custodian, however gross such negligence own safety. Bresee v. L. A. T. Co., 149 Cal. may be. The plaintiff does not come within the rule of this case, but is subject to the general rule above stated. 131, 85 Pac. 152, 5 L. R. A. (N. S.) 1059; Parmenter v. McDougall, 172 Cal. 306, 156 Pac. 460; Brickell v. New York C. & H. R. R., [3] It is true that the doctrine upon which 120 N. Y. 290, 24 N. E. 449, 17 Am. St. Rep. the decision in the Whittaker Case is based 648; Shultz v. Old Colony St. Ry. Co., supra; has been repudiated as unsound both in Dean v. Pennsylvania R. Co., 129 Pa. 514, England and by the courts of almost all 18 Atl. 718, 6 L. R. A. 143, 15 Am. St. Rep. the states in the Union. For a full discus-533; Nesbit v. Garner, 75 Iowa, 314, 39 N. W. sion of the subject, with a review of both 516, 1 L. R. A. 152, 9 Am. St. Rep. 486; English and American cases, reference may Davis v. Chicago Ry., 159 Fed. 10, 88 C. C. be had to the leading case of Shultz v. Old Colony St. Ry. Co., 193 Mass. 309, 79 N. E. 873, 8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502, 9 Ann. Cas. 402. In that case the court, speaking through Mr. Justice Rugg, stated the rule thus: "With some modifications in its application to particular cases, the general rule is that, where the injured person and the driver do not occupy the position of master and servant, passenger and carrier, parent and child, and where the plaintiff is himself in the exercise of due care, having no reason to suspect carelessness or incompetency on the part of the driver, and is injured by the concurring negligence of the driver of the vehicle and some third person, the guest is not precluded from recovery against the third person by reason of the negligence of the driver." For the purposes of this case, however, we are not required to enter upon a review of the authorities to determine whether the Whittaker Case should be overruled. Every person is bound to an absolute duty to exercise his intelligence to discover and avoid dangers that may threaten him. When, therefore, a plaintiff asserts the right of recovery on the ground of culpable negligence of the defendant, he is bound to show that he exercised his intelligence to discover and avoid the danger, which he alleges was brought about by the negligence of the defendant. In recognition of this general rule, and in order to meet the alternative presented by the defendants' second defense, the court also submitted instructions which authorized the jury to inquire whether, in view of the circumstances disclosed by the evidence, the plaintiff himself failed to exercise the care and diligence of an ordinarily prudent person, and for this reason was guilty of contributory negligence, and directed them, if they should so find, to return their verdict for the defendants. [4-7] Counsel do not question the correctness of these instructions in point of law; nor do they suggest that they were not properly submitted. Indeed, in face of the general rule referred to above, their correctness cannot be questioned; for though the negligence of Black should not be imputed to the plaintiff, still the plaintiff was not absolved from the duty of using ordinary care for his own safety. Though the guest of Black, he could not close his eyes to the danger which might be encountered at the crossing, in blind reliance upon the unaided care and vigilance of Black, without assum A. 488, 16 L. R. A. (N. S.) 424; Brommer v. Pennsylvania Ry. Co., 179 Fed. 577, 103 C. C. A. 135, 29 L. R. A. (N. S.) 924; Canter v. City of St. Joseph, 126 Mo. App. 629, 105 S. W. 1; Bush v. Union Pac. Ry. Co., 62 Kan. 709, 64 Pac. 624; Cable v. Spokane & Inland Empire Ry. Co., 50 Wash. 619, 97 Pac. 744, 23 L. R. A. (N. S.) 1224; Wentworth v. Waterbury, 90 Vt. 60, 96 Atl. 334; Shearman & Redfield on Neg. § 66a. The testimony introduced by the plaintiff is best illustrated by a brief description of the yards and the conditions existing at the time of the collision. The collision occurred in the evening, after dark. The main line of the road extends east and west, and consists of two tracks, designated as the east-bound main track and the west-bound main track; the latter being north of the former. In approaching the east-bound main track, one is obliged to cross seven other tracks, besides the west-bound main track. These may be designated as tracks 1, 2, 3, 4, 5, 6, and the caboose track; the latter being 32% feet distant from the east-bound main track. One passing over tracks 1 and 2 cannot readily observe the movements of cars or engines in the yards toward the west, because of a high platform used for icing cars, which extends to the west for several hundred feet along the north side of track 3. After passing over this track the view of the east-bound main track is open for many hundred feet to the west, except when it may be obstructed by cars standing on one or more of the intervening tracks. At the time of the accident there were no cars on any of these tracks, save one or two cabooses standing on the caboose track, the east end of the nearest being about 27 feet west of Harris street. After passing track 3, the view toward the west was wholly unobstructed, except for these cabooses. There was an arc light suspended about 30 feet high over Harris street, near the north rail of the caboose track. The yard was dark, except so far as objects were made visible by this light. From a point about midway between track 6 and the caboose track, and about 43 feet from the east-bound main track, the view was open beyond the east end of the nearest caboose for a distance of 86 feet. From the north rail of the caboose track, the view was open for a distance of 155 feet. From the south rail, the view was open for some 380 feet. The ground declines slightly from main track. At this time it was covered with main track, the engineer, McCann, sounded snow and ice. As to the correctness of this the whistle; that the bell was rung from statement there was no substantial con- then until the collision occurred; that two flict, except that plaintiff testified that there switchmen were riding on the front steps were two cabooses standing on the caboose of the front car, both of whom carried lighttrack, whereas the defendants' evidence ed lanterns; that the automobile was obshowed that there was only one. served by them when it was about 40 feet from the crossing, and that upon a signal from one of them the engineer again sounded the whistle and turned on the air; that the automobile proceeded until it was struck by the front step of the car. The evidence of these switchmen showed that, when the train came to a stop, the automobile, after it was pushed around by the car step, had proceeded in the same direction in which the train was going for a distance of 42 feet before it came to a stop. The engineer, McCann, was engaged in turning cars which belonged to local trains and placing them on their appropriate tracks. In the process of doing this the cars were moved toward the west along the east-bound main track, and from that switched over to the adjoining tracks. The plaintiff testified that he sat in the front seat of the automobile by the side of Black; that Black drove into the yards at the rate of 6 or 8 miles an hour; that the wheels of the automobile were not provided with chains; that when it reached track 6 Black shut off the power and of the plaintiff made out a case for the juUpon the assumption that the evidence allowed the automobile to drift along in high gear; that it was making no noise; that, as y as to whether the defendants were guilty they approached the main line, both he and of negligence, the verdict upon the whole Black kept a constant lookout, glancing to the case indicates that they reached one of three right and left; that he could not see a train different conclusions: (1) That the defendapproaching from the west until he had ants were not guilty of any negligence; (2) passed the caboose track; that he heard no that, though they were, Black was guilty of noise of any kind; that as they passed this contributory negligence, which was properly or (3) that the track he glanced to the right, then to the imputed to the plaintiff; left, and again to the right; that Black did plaintiff was guilty of contributory neglithe same; that as he glanced to the right gence. It cannot be determined, of course, the second time he discovered the train com- whether the jury reached the first concluIn view of all the ing from the west on the east-bound main sion indicated or not. track; that it was made up of several cars, circumstances, it was within the province two of which were being pushed by an en- of the jury to reject entirely the evidence of gine; that there was no person on the front both Black and the plaintiff, and accept that of the foremost car, nor any light; that the of the defendants. If, however, they conbeli of the engine was not rung, nor the sidered the question of contributory negliwhistle sounded; that the train was ap-gence at all, the presumption becomes necproaching at a rate about twice as fast as Black was driving, and that, when he saw the train, Black was looking to the left; that he called to Black, who at once put on the brake to stop, but that the automobile skidded along until it came so near the east-bound track that it was struck by the step of the front car and pushed around until it faced to the east, with the result that plaintiff, in the act of jumping to save himself, was thrown to the ground and injured. The testimony of Black was substantially the same as that of plaintiff, except that he stated that he was driving at the rate of 8 or 10 miles an hour; that the train was 15 or 18 feet from the crossing when he first saw it, moving at about the same rate as that at which he was driving; that a Ford automobile, such as he was driving, could ordinarily be brought to a stop in 10 or 12 feet, but that under the conditions then existing he could not say what distance was required. essary that they found the plaintiff himself guilty, and made this finding the basis of their verdict. For, the accounts of plaintiff and Black agreeing in all essential particulars and it appearing that plaintiff was fully aware of the danger, had the same opportunity as Black to observe whether a train was approaching, and relied upon his own efforts to protect himself from harm just as did Black, it seems clear that the jury could not have found Black guilty, and the plaintiff not guilty. [8] Upon this theory the finding of the jury was clearly correct, and should be upheld, though it be conceded, as we have done, that the doctrine of imputed negligence, as approved in the Whittaker Case, supra, is unsound, and that the trial court erred in instructing the jury as it did. The error thus committed could not have prejudiced plaintiff's rights, and does not justify a reversal of the judgment. The case falls The testimony of the defendants' witness- within the rule of the statute which forbids es was to the effect that the automobile was this court to reverse a judgment because of going at about the same rate as the train, any error or defect in the proceedings not or a little faster, and that it reached the affecting the substantial rights of the parcrossing at the same time the train did; ties. Rev. Codes, § 6593; Eadie v. Eadie, that when the train left the switch track 44 Mont. 391, 120 Pac. 239, Ann. Cas. 1913B, |