I respectfully dissent from the majority opinion herein.
The majority holds that the judgment of the lower court should be reversed and appellee's cause of action dismissed solely because the testimony, as the majority opinion asserts, shows that as a matter of law appellee was guilty of such contributory negligence as to bar his recovery and that this contributory negligence consisted in the failure of appellee to stop his automobile, before starting over the crossing, so as to enable him to look up and down the track for a train.
But the majority is overlooking the fact that it was not appellee's failure to see the train before he started across the track that caused the collision, but that, according to appellee's version, which was not disputed and which was accepted as true by the jury, the collision was brought about by appellee's inability (caused by the slippery condition of the roadway and the depression therein between the rails) to drive his car off the track after he did discover the approaching train.
While under the law it is the duty of a traveler to look and listen, and, if necessary in order to do so, to stop, before proceeding across a railroad track at a crossing, he is not required, merely because there is a train moving toward him in his range of vision, to wait until such train passes, if the train is far enough away to enable him, acting with due prudence, to go across the track safely. Elliott on Railroads, Vol. III, p. 559, and cases cited in Note 92.
Now the undisputed evidence in this case shows that, after appellee discovered the approaching train, he made an effort to move his car forward and to move it backwards, and, failing in both efforts on account of the condition of the roadway, he disembarked from the automobile, went to one of the rear doors thereof and took out his child and took the child to a place of safety, before the locomotive struck his car. Certainly all these operations, which took place between the time appellee saw the train and the time of the collision, consumed as *Page 940 much as a minute of time. A car moving (as was appellee's) at the rate of five miles an hour travels four hundred and forty feet in one minute. Therefore, if appellee's car had not been stalled by reason of the slippery condition of the roadway and the depression between the rails, appellee could have, after he did see the oncoming train, driven his car a distance of four hundred forty feet before the locomotive reached the crossing, and would thereby have reached a safe place; and, of course, if appellee had before going on the crossing stopped his car and made the survey up and down the track (for failure to make which survey the majority of the court is denying him recovery) the train would have been even further away and he could have safely driven over the crossing and to an even greater distance beyond it.
So it seems to me that, instead of the evidence conclusively showing that negligence on the part of appellee caused or contributed to the collision, there is no evidence to indicate that any negligence of appellee brought about or contributed to bring about the collision. To say the least of it, after a jury, empowered under the constitution to settle finally all questions of fact, has said that appellee was not guilty of contributory negligence, I, as a judge, cannot say as a matter of law that the jury was wrong. It is significant, too, that, after all of appellee's testimony had been heard, appellant's counsel asked for a peremptory instruction in favor of appellant, not because of any evidence as to contributory negligence on the part of appellee, but solely on the ground that the evidence failed to show that appellant had been negligent in maintaining the crossing.
I am authorized to state that Mr. Justice McFADDIN and Mr. Justice MILLWEE join in this dissent. *Page 941