
    Joseph Hardy STEIN, Plaintiff & Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant & Appellant.
    No. 1177.
    Court of Appeal of Louisiana. Third Circuit.
    July 10, 1964.
    Rehearing Denied July 30, 1964.
    Writ Refused Oct. 13, 1964.
    Landry, Watkins, Cousin & Bonin, by Jack J. Cousin, William O. Bonin, Jacob S. Landry, New Iberia, for defendant-appellant.
    Mestayer & Simon, by S. Gerald Simon, Ray F. Mestayer and Ann Simon, New Iberia, for defendant-appellee.
    Before TATE, FRUGÉ and CULPEP-PER, JJ.
   CULPEPPER, Judge.

This is a suit for damages arising out of an accident in which plaintiff drove his employer’s pickup truck into the side of the next to last car of a freight train which was slowly crossing a four-lane highway. A jury awarded plaintiff $150,000. The defendant appealed.

The scene of the accident is on Admiral' Doyle Drive, just west of the town of New Iberia. This highway runs north and south and consists of two 24-foot wide cement slabs separated by a 30-foot wide neutral ground. The total width of the highway right of way is 150 feet. A single railroad' track crosses the highway in an east-west direction. The track leads in a westerly direction to the mine of the Jefferson Island Salt Company and is used by only one or two trains a day. The highway approaches the crossing on a slight incline, the maximum slope in the south bound lanes of traffic being 1%, which means that in each 100 feet the highway rises 1 foot. The north bound and south bound traffic lanes are protected by rectangular “Louisiana Law-Stop” signs and also by “Railroad Crossing” cross arm signs, these being located about 15 feet from the tracks, and within the highway right of way, in clear view of approaching motorists. There are no other permanent protective or signaling devices.

On the night of August 9, 1962, at about 9:30 p. m., defendant’s freight train, consisting of an engine, five box cars and a caboose, was proceeding in a westerly direction toward the crossing. It was dark but the weather was clear. The train crew testified they stopped the engine at the highway to permit the crossing to be flagged; that a lighted fusee (a red flare that burns for 10 minutes) was placed near both the north and south bound traffic lanes; then the train proceeded across the highway at a speed of about 6 miles per hour with the bell ringing and the whistle blowing; when the box car immediately in front of the caboose was across the south bound highway traffic lanes, it was struck by the pickup truck being driven by plaintiff.

On the night in question plaintiff was engaged in his employment as a “hot-shot driver” for Brown Oil Tools. This term is applied to a driver who delivers tools to a customer who does not want to wait for regular motor freight. He had just left his employer’s place of business in New Iberia and was going to Houston, along a route which he usually traveled and with which he was thoroughly familiar.

Plaintiff testified that he was driving in a southerly direction, at a speed of about 45 miles per hour, approaching the crossing, with his lights on dim; he saw the headlights of another vehicle approaching from the other side of the crossing in the north hound lanes of traffic across the neutral ■ground; these lights were shining underneath the box cars in such a manner as to •cause plaintiff to think there was no train .at the crossing; he did not see the box •car across his own lane of traffic until lie was about 60 feet from it; he attempted to apply his brakes but was unable to stop in time to avoid the collision; he saw no fusee, flagman or other signal.

. The initial issue presented on appeal is whether the railroad was negligent. As will be noted hereinafter, we conclude that it is unnecessary to decide this issue, because we find that plaintiff was clearly con-tributorily negligent, but we think it appropriate to discuss the issue in order to present a full picture of the case. The first case cited by plaintiff in his brief, and one of the principal ones on which he relies, is Squyres v. Baldwin, 191 La. 249, 185 So. 14. Unlike the present case, the plaintiff there was a guest passenger in an automobile which ran into the side of a freight train on a dark night during a heavy snow fall, which limited the driver’s visibility to about 25 feet. The court held under the circumstances that the railroad was negligent in not providing adequate warning, such as a flagman or other visible signaling device, and allowed recovery to the plaintiff guest passenger, who was found free of contributory negligence. (Of course, the case does not stand for the proposition that the driver was free of negligence.) In the course of its decision our Supreme Court set forth certain well established principles of law, on which plaintiff relies, and which plaintiff quotes in his brief, with comments, as follows:

“ ‘The view generally taken is that the presence of a train of cars at a crossing-is sufficient notice of obstruction and of danger, that the railroad company is not bound to give any further warning as to the presence of such obstruction, and that the trainmen have a right to assume that the operator of the vehicle will act in a reasonable way to avoid a collision. * * * There is, however, authority for the view that conditions may be such as to require a warning where, in the darkness, a car obstructs a crossing.’ 52 Corpus Juris, sec. 1782, pp. 190, 191. (Italics ours.)”
“The court recognized, however, a clear-cut exception to this general rule, saying :
“In A.L.R., Vol. 99, p. 1455, the exception is stated as follows:
“ ‘ * * * the railroad company’s duty is not necessarily discharged under all circumstances if it fails to give warning in some form of the presence of the obstruction. The atmospheric conditions, obscurity, and darkness of the crossing, the length of time it is obstructed, and the nature of the highway, may require that warning be given if the company is to be found in the exercise of due care.’ (Italics ours.)”

Plaintiff also cites several later cases involving the stiuation where a motorist runs into the side of a train which is already on a crossing as the motorist approaches, but these cases all follow the general rules of law set forth in the Squyres case, supra, and we see no need to discuss them at this point. We will discuss them later in this opinion in connection with the issue of plaintiff’s contributory negligence.

Plaintiff argues this was an unusually dangerous crossing, bringing this case within the “exception” discussed in the Squyres case, because: (1) Admiral Doyle Drive is a high speed four-lane highway which is heavily traveled. (2) The railroad track was used only to service the Jefferson Island Salt Company and was used by only one or two trains in each 24-hour period. (3) The crossing was not equipped with any electric warning lights, barriers, gates or any other type of signaling device other than the standard railroad stop signs. (4) The 1% grade of the southern approach was such that plaintiff could see, under the box cars, the lights of traffic approaching the crossing in the north bound lanes of traffic, in such a particular manner that he was led to believe the crossing was clear until too close to stop. (5) Certain letters written by the defendant railroad to the Iberia Parish Safety Council indicate that the railroad knew the crossing was dangerous and promised to burn red fusees whenever a train was crossing.

A large portion of this voluminous record consists of evidence introduced by plaintiff to prove that, for the reasons set out above, this was a dangerous crossing such that the mere presence of the train on the crossing was not sufficient warning. Plaintiff also introduced the testimony of several witnesses that they saw no fusees at the scene. This latter factual issue is in serious dispute. All of the train crew, and one disinterested eyewitness who was at the scene when the accident occurred, testified that the fusees were put in place before the train crossed, but, when plaintiff’s truck struck the box car, gasoline from the truck spilled on the highway and the fusees were removed to prevent a fire. Plaintiff’s witnesses, all of whom arrived at the scene later, testified they did not see any fusees.

However, it is our conclusion that we need not decide whether the defendant railroad was guilty of any negligence. Even if we were to assume, for the sake of argument, that this crossing was unusually dangerous and that the railroad did not put out fusees or give any other additional warnings, it is apparent that, under the facts of this case, plaintiff was guilty of contributory negligence barring his recovery.

In the very recent case of Glisson v. Missouri Pacific Railroad Company, et al., La., 165 So.2d 289, (1964) our Supreme Court reiterated the duty of a motorist approaching a railroad crossing as follows:

“The general rule of law is that a motorist approaching a railroad crossing must use his senses of sight and hearing for possible oncoming trains, before traversing the crossing. Tucker v. Illiniois Central Railroad Company, 141 La. 1096, 76 So. 212; Rachal v. Texas & Pacific Railway Company, La.App., 61 So.2d 525; Matthews v. New Orleans Terminal Company, La.App., 45 So.2d 547. A motorist negotiating a railroad crossing is burdened with the responsibility of seeing and hearingthat which he could have seen and heard, and he is presumed in law to have seen and heard what he could have seen and heard. Jackson v. Cook, 189 La. 860, 181 So. 195. If the motorist’s view of the right of way is-obstructed, he must exercise a higher degree of caution. See Renz v. Texas & Pacific Railway Company, [La.App.] 138 So.2d 114, and the authorities cited therein.
******
“Applying these rules of law to the facts of the instant case, it is inescapable that if Mrs. Glisson had stopped at the stop sign, 48 feet from the crossing, she could and should have seen the train approaching. Even if she did not stop, but only slowed down, and looked and listened for the ax>-proaching train, while maintaining her vehicle under such control as to be able to stop immediately, she could and should have seen the train approaching in time to stop. She lived in the immediate vicinity and was thoroughly familiar with this crossing and the view which she had of approaching trains. She certainly should have used greater caution.”

In the particular situation with which we are presented herein, i. e., of a train already on the crossing as a motorist approaches, we note particularly that the plaintiff has not cited a single case from the appellate courts of this state holding such a motorist free of negligence. A brief review of the cases cited by plaintiff shows the following:

In Ramsey v. Louisiana & A. Railroad Company, 70 So.2d 171 (2nd Cir.App.1954) the court held the railroad was free of negligence because there were no unusual or extraordinary conditions of weather or visibility which required additional warning of the presence of the train on the crossing. The court found the plaintiff’s negligence, in driving at an excessive speed and failing to keep a proper lookout, was the sole cause of the accident.

In Domite v. Thompson, 9 So.2d 55 (2nd Cir.App.1942) where the deceased driver ran into the side of a train on a crossing, there was a factual issue as to whether there was a sufficiently heavy fog to require the railroad to place additional visible warning signals at the crossing. The court found as a fact that there was only a light fog and therefore this case did not fall within the ruling in the Squyres case, supra. The court concluded the railroad was free ■of negligence and held that the sole cause of the accident was the negligence of the plaintiff in driving at an excessive speed and failing to keep a proper lookout.

Another case cited by plaintiff is Senegal v. Thompson, 91 So.2d 865 (1st Cir.App.1956, Writ of certiorari denied) in which the driver and his guest passenger sued under the theory of negligence discussed in the Squyres case, supra. The majority opinion held the railroad free of negligence, where visibility of the train standing across the highway was not obscured by fog, snow, rain or any other condition, and denied recovery to both the driver and his passenger. The dissenting opinion of Judge Tate concluded that the railroad was negligent in failing to give additional warnings and allowed recovery to the guest passenger but even the dissent agreed the plaintiff driver was barred from recovery by his own contributory negligence.

In Arnold v. Illinois Central Railroad Co., 32 So.2d 76 (1st Cir.App.1947) the plaintiff driver and his guest passenger sued on the theory that the railroad was negligent in blocking the highway with a freight train, during hours of darkness and in foggy weather, without having a flagman or other visible warning signal. The court concluded that the weather was very foggy and that the railroad was negligent. Recovery was allowed to the guest passenger but was denied to the driver on the grounds of his own contributory negligence in not keeping a proper lookout.

From the above resume of the principal cases relied on by the plaintiff it can be seen that in some the defendant railroad was found negligent in not providing adequate warning of the presence of a train on a crossing where darkness, weather conditions, the nature of the crossing or other conditions affecting the motorist’s visibility was such that the mere presence of the train on the crossing was insufficient to give warning to approaching motorists. However, we note particularly that not one of the Louisiana cases cited by plaintiff holds the driver of the approaching vehicle to be free of negligence where he runs into the side of a train which is already on the crossing as he approaches.

In the present case there was no snow, fog, rain or any weather condition or visual obstruction from which it can even be argued that plaintiff should not have seen the train on the crossing. Plaintiff does not even contend that he was blinded by the lights of the approaching traffic. His only argument is that the crossing was so constructed that he saw the lights of oncoming vehicles underneath the box cars and this led him to believe that the highway was clear. In effect, what plaintiff is saying is that these lights approaching on the other lanes of traffic relieved him of the responsibility of looking ahead for obstructions in his own lane of traffic, and mind you, this was at a railroad crossing which plaintiff had crossed frequently and with which he was thoroughly familiar. Such a contention has no merit whatever.

In the case of Senegal v. Thompson, 91 So.2d 865 (1st Cir.App.1956) which we have already discussed briefly above, a somewhat similar argument was made where the grade of the approach to the crossing was about 6 inches to every 100 feet and the plaintiff driver contended he did not see the box car on the crossing because his own headlights were beamed under the box car. As noted above, both the majority and the dissenting opinions rejected this contention and held the plaintiff driver guilty of contributory negligence for not keeping a proper lookout. The majority opinion held that this condition was not even sufficient to classify the crossing as being unusually dangerous, requiring additional warnings.

We have no difficulty in concluding that the plaintiff was guilty of contributory negligence barring his recovery. The law is clear that a motorist approaching a railroad crossing must use his senses of sight and hearing to discover the presence of trains and this duty increases where the motorist is familiar with the crossing. There is no reason even suggested by the evidence that plaintiff could not have seen this train on the crossing in time to stop. Actually, plaintiff himself does not say that he could not have seen the train if he had looked in his own lane. He just says that because he saw the lights in the other lanes of traffic under the box cars he thought his own lane was clear.

We do not understand that plaintiff is contending this case falls within the dangerous trap doctrine as set forth in McFarland v. Illinois Central Railroad Co., 122 So.2d 845 (1st Cir.App.1960); Simon v. Texas & N. O. Railway Co., 124 So.2d 646 (3rd Cir.App.1960) and Renz v. Texas & Pacific Railway Co., 138 So.2d 114 (3rd Cir.App.1962). However, if such a contention is made we think clearly the dangerous trap doctrine has no application here. In the very recent case of Glisson v. Missouri Pacific Railroad Co., et al., La., 165 So.2d 289, our Supreme Court set forth the theory of this doctrine as follows :

“ * * * if a crossing is unusually dangerous because the view of the motorist is so obstructed as to require that he place himself in a position of peril dangerously near the tracks, before he has a view of the oncoming train, the railroad company will be held liable, unless it can show that it took unusual precautions, such as reducing the speed of the train, or increasing its warnings, or providing signaling devices, etc. The theory of this doctrine is that the railroad may not rely upon the duty of the motorist to stop and look, if the physical circumstances are such that stopping and looking will do the motorist no good.”

The present case is easily distinguishable from those enunciating the dangerous trap doctrine. In the first place, all of the dangerous trap cases cited involved trains approaching the crossing instead of a train which was already on the crossing as the motorist approached, as in the present case. Furthermore, the dangerous trap doctrine applies where the motorist’s view of the train is obstructed in such a manner that it would do the motorist no good even if he performed his duty to stop, look and listen. In the present case plaintiff’s view of the train on the crossing was not obstructed in any manner. If he had performed his duty to look he could have easily seen the train.

The case of Wyatt v. Public Belt Railroad Commission for City of New Orleans, 121 So.2d 298 (Orleans App.1960) cited by plaintiff, is also distinguishable on the grounds that there the train was approaching the crossing at the same time as plaintiff. The train was not already across the plaintiff’s path, as in the present case.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the defendant, Missouri Pacific Railroad Company, and against the plaintiff, Joseph Hardy Stein, rejecting plaintiff’s demands at his costs. All costs of this appeal are assessed against the plaintiff appellee.

Reversed and rendered.

FRUGE, J., dissents and assigns written reasons.

TATE, J., concurs and assigns written reasons.

FRUGÉ, Judge

(dissenting).

I respectfully dissent. Plaintiff’s evidence shows the circumstances were as follows : The crossing in question was a dangerous and hazardous one. Evidence was introduced into the record which showed that it had been called to the attention of the defendant railroad that the crossing was dangerous. The railroad had acknowledged that the crossing was dangerous and had agreed to insure that adequate warning signals would be provided; the train was to stop before entering the crossing and was not to proceed further until a member of the crew left a burning red fusee- on each side of the track for protection of motorists while the crossing was occupied by the train. Evidence was also introduced which showed that there had been other accidents at that particular crossing. Plaintiff was driving toward the crossing in his employer’s truck on the night of the accident. The truck was in good operating condition. Plaintiff was driving in a reasonable manner and well below the speed limit. He could see the headlights of a number of oncoming automobiles and had every reason to believe that the road ahead of him was clear and unobstructed. Plaintiff later produced evidence which indicated that it was quite possible for him to see the lights of the oncoming vehicles through the opening between the ground and the boxcar, particularly since the crossing was slightly elevated; plaintiff argues that this gave him a false sense of security. No flares were visible in the area. Plaintiff was suddenly faced with an unlighted boxcar in front of him which was moving very slowly on the railroad track crossing the highway. Plaintiff swerved his truck sharply to the left and did everything in his power to avoid a collision with the boxcar. However, it was impossible to avoid the collision.

Defendant’s evidence shows the following : The crossing was not hazardous. Even if it was, the defendant’s employees provided adequate warning prior to entering the crossing. It was a dark night but the weather was clear and the visibility good. Upon reaching the crossing, the engineer brought the train to a stop. An employee got off of the train and placed a red fusee on each side of the highway. With the bell ringing and the whistle blowing, the train proceeded across the highway at a speed of approximately six miles per hour. As the train reached the far side of the crossing, it was struck by plaintiff’s truck.

If plaintiff’s evidence was believed by the jury in preference to that of the defendant, such evidence established to the jury that the railroad crossing was a dangerous one, that the employees of the defendant railroad were negligent in not providing adequate warning at the crossing, and that there was no contributory negligence on the part of the plaintiff. It is a well settled rule of appellate review that the appellate court is not to overrule findings of fact by the trial court unless the trial court has committed manifest error. In the case before us, the jury, after observing the witnesses and evaluating their testimony, and after receiving clear and well prepared instructions from the trial judge, reached the conclusion that the defendant should be held liable under the circumstances. It is my opinion that the record fails to disclose any manifest error on their part in so finding, and the trial court’s judgment should be affirmed on the issue of liability.

TATE, Judge

(concurring reluctantly).

The writer personally agrees with Judge FRUGÉ’s dissent from the majority’s reversal of the trial court. Nevertheless, the writer concurs in the majority opinion, since it expresses the views of a majority of this court (although not necessarily of this panel) as to the rule set forth by the prior jurisprudence which we must apply in the determination of the plaintiff driver’s contributory negligence. Under such jurisprudence, as interpreted by the majority, the driver’s fault in not seeing the unlighted and unwarned-of train bars his recovery.

I think it is fair, though, to point out that the railroad crossing jurisprudence imposes upon a motorist an artificially high standard of care, utterly divorced from realistic standards of everyday life. Indeed, it is a standard different and more exacting than that applied when a night motorist collides with any other unwarned object on the roadway.

I.

Perhaps we can best illustrate this by a brief discussion of the present facts.

The accident happened at 9:30 at night. The site was on a high-speed four-lane through highway a few miles west of New Iberia. At the place of the accident, the highway speed limit was 65 mph.

The railroad crossing was of a branch line serving a salt mine. Trains used it infrequently, perhaps twice daily, and at irregular hours. The ordinary unlighted “railroad crossing” signs were, obviously insufficient warnings. Not only had the New Iberia Safety Council protested the danger of the crossing due to such inadequate warning, as had the safety officer at a nearby naval base; there had been at least three other night accidents at the crossing within a relatively short time, as well as several other near-accidents.

So hazardous was the crossing, that the railroad company itself had agreed in a letter to the Safety Council, some eighteen months before the present accident, to order its train crews to stop before proceeding across the highway, and to leave burning red flares by the track to warn oncoming highway motor traffic while the train was crossing the main highway.

Under the jury’s finding (evaluating a conflict in the testimony), this necessary warning precaution was not taken on the night of the present accident. For purposes of this appeal, we must consider that the freight train was going across the highway in gross disregard of the railroad’s duty to warn oncoming motor traffic.

The majority, following prior interpretations of the jurisprudence, finds that the motorist was contributorily negligent because he failed to see the railroad in time to avoid crashing into it. To me, this overlooks the circumstances surrounding the present accident.

The present motorist, lawfully approaching on a highway, was not charged with the duty of guarding against a grossly negligent obstruction of the highway in his path, which he had no reason to anticipate. (I should also point out that the branch line train usually passed the crossing from H/2 to 4 hours earlier in the evening than on the night of the accident.)

And what did the present plaintiff motorist reasonably see in fact as he approached the crossing?

Due to the incline of the railroad track and the topography of the highway, the motorist’s headlights shined primarily underneath the railroad cars. The motorist’s line of vision was primarily underneath the railroad cars, and he could see the headlights of oncoming motor traffic approaching him from the opposite direction. In short, due to the construction of the crossing and the lack of any railroad warning, there was created in the motorist a false illusion of safety, as he approached the crossing, that there was only open highway ahead. He reasonably saw only what appeared to be an open roadway ahead, although it was in fact obstructed.

It is to be remembered that the defendant has the burden of proving contributory negligence. Contributory negligence is conduct which involves an undue risk of reasonably foreseeable harm to oneself. See, e. g., Sloan v. Flack, La.App. 3 Cir., 150 So.2d 646.

In my personal opinion, if considered as a matter of fact and not of book-law, it was within the province of the jury to determine that the railroad had not borne its burden of proving that the plaintiff motorist was contributorily negligent so as to bar his recovery.

After all, the motorist had a right to be driving on the highway at the place and speed he was. He was using reasonably careful observation of the road ahead, which would have revealed to him the railroad if he had been alerted by the required warning flares of the otherwise unforeseeable obstruction of the highway. To the eye of ordinary observation, the highway ahead of him seemed open and clear in the darkness ahead.

II.

The recent jurisprudence indicates, in my opinion, that the plaintiff would not have been held contributorily negligent under similar circumstances if he had run into any unlighted obstruction to highway travel other than a railroad.

The more recent decisions of our Supreme Court can probably be characterized fairly as holding that a night motorist is not necessarily contributorily negligent for failing to observe an unlighted highway hazard negligently left obstructing the passage of traffic on a through highway. Suire v. Winters, 233 La. 585, 97 So.2d 404; Vowell v. Manufacturers Casualty Co., 229 La. 798, 86 So.2d 909; Dodge v. Bituminous Casualty Co., 214 La. 1031, 39 So.2d 720. “It is a well-established rule that persons using a public street which is in constant use and when their attention has not been called to any obstructions or perils thereon, have a right to presume and to act on the presumption that the way is reasonably safe for ordinary traffic.” Snodgrass v. Centanni, 229 La. 915, 87 So.2d 127, 130.

Nevertheless, under the railroad jurisprudence relied upon by the majority, if a night motorist runs into an unwarned and unlighted railroad, it is often held, without more, that the motorist is contributorily negligent for failing to see the train, although such train might be unwarned and might be as obscure in the darkness ahead as a parked truck or other negligent obstruction.

Actually, this latter sort of rule formerly also applied to non-railroad night automobile accidents. Up to two or three decades ago, it was held as a matter of law, justifying dismissal upon an exception of no cause of action, that the night driver was contributorily negligent for striking- a highway obstruction because “the driver of an automobile is guilty of negligence in driving at a rate of speed greater than that in which he could stop within the range of his vision,” Louisiana Power & Light Co. v. Saia, 188 La. 358, 177 So. 238, 239.

However, by the landmark case of Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377, with the late great Justice Ponder as the organ of the court, our Supreme Court realistically re-evaluated its former mechanical and unrealistic rule. In that case, the court held that, under circumstances so justifying it, a motorist proceeding with usual care on a through highway might not be contributorily negligent for failing to perceive and hence running into an obscure highway obstruction negligently placed on the highway in his path ahead, when surrounding circumstances such as distracting traffic reasonably explained the motorist’s failure to notice the obscure obstruction ahead in time to avoid the collision.

Following Gaiennie, the more modern and more realistic standard of care developed as applicable to a night motorist, as enunciated by the later Supreme Court decisions above-cited. See also Professor Wex Malone’s comments on the erosion of the “assured clear distance” rule in the annual symposiums on the work of our state supreme court at 19 La.Law Rev. 338 (1959), 18 La.Law Rev. 68 (1957), and 17 La.Law Rev. 346-348 (1957).

III.

The railroad-crossing law is still in a pre-Gaiennie stage. Sooner or later, it seems to me, the decisions concerning the contributory negligence of a night motorist in a railroad crossing accident, will have to be re-evaluated in the light of modern traffic conditions, just as similar non-railroad decisions were by Gaiennie and the post-Gaiennie jurisprudence.

This railroad-crossing jurisprudence is founded upon older cases based upon the traffic conditions of the day in which they were decided — gravel roads, much slower motor vehicle speeds, more frequent and more foreseeable railroad traffic.

Much different present-day circumstances surround the present railroad-crossing accident. We are here concerned with a modern driver proceeding on a high-speed four-lane through-highway designed to facilitate the quick passage of high-powered motor vehicle traffic. We are here dealing with a crossing of such a highway by a minor branch line of a railroad, used by trains only on infrequent and irregular occasions.

Under these circumstances, it seems to me, a railroad has an even greater duty to safeguard by adequate warning the favored automobile traffic, especially since such a really unreasonably great and readily foreseeable hazard is caused to highway traffic. Correspondingly, the motorist traveling on such a highway has a relatively great right to presume that there will be no unwarned obstruction to the passage of high-speed traffic. Through-highway traffic should not be required to anticipate that an obscure and insignificant branch crossing will be used at night by the railroad without alerting and lighted warning signs; so unforeseeable is it that a railroad would cause such extreme and certain hazard to the favored through-traffic on the highway.

Without such required warnings, a failure by the night motorist to observe a non-lighted and unwarned obstruction of a through-highway, should not be held to be contributory negligence which is a proximate cause of the accident, whether the obstruction results from a train or from any other unlighted hazard placed across the lane of high-speed travel. In such circumstances, taking a realistic view, the accident is primarily caused through the gross negligence of the railroad in obstructing traffic without warning.

In the present case, for perhaps twenty-three hours and fifty minutes of each day, the present motorist’s speed and observation was sufficient to warn him of any reasonably foreseeable obstruction to his travel. Realistically, how can it be said that this otherwise reasonably prudent observation and control by the motorist, is suddenly made insufficient, in the other ten minutes of the day, because of the railroad’s converting the crossing into a death-dealing and man-crippling trap, through its gross negligence in failing to provide sufficient warning to alert approaching highway traffic?

In perhaps no class of cases are there more reversals by appellate courts of trial-jury determinations than in railroad-crossing accidents. In these, the juries quite frequently determine that the approaching motorist has used the care reasonably required by present day circumstances. The subsequent appellate reversals on the ground of the motorist’s contributory negligence, it seems to me, stem from the appellate courts’ reliance upon decisions which supply a standard of care unrealistically based upon conditions of two or three decades ago rather than upon those of today.

The standard of duty of a reasonably prudent person using ordinary care should be drawn from life, not from books. As traffic conditions change with the decades, what constitutes the reasonable care and lookout required of a motorist under the circumstances must vary with the actual facts faced by the motorist; not determined by artificial rules not based on everyday life, but instead on the entirely different circumstances of horse-and-buggy or Model-T times.

Our railroad-crossing law awaits a new Gaiennie decision to let the fresh air of today into the appellate treatment of the subject. Since this court’s decision in the present case will not fulfill this function, I therefore will concur with the majority opinion herein as representing probably the preponderant judicial interpretation of our railroad-crossing jurisprudence, even though I feel that such interpretation is wrong and must at some time be realistically re-evaluated in the light of modern traffic conditions.

On Application for Rehearing.

En Banc. Rehearing denied.

TATE and FRUGE, JJ., are of the opinion that a rehearing should be granted.  