DISSENTING OPINION. I concur in the principal opinion except the holding that, under the facts and circumstances as shown by the evidence, the employees of appellant *Page 553 in blocking the highway as they did, without giving any warning to travelers upon the highway, were in the exercise of reasonable and ordinary care and that the proximate cause of appellee's injuries was the negligence of the driver of the automobile. The crossing was blocked for three minutes, which in these days of travel by automobile is very different from the blocking of a highway against travelers in horse-drawn vehicles. The crossing was over a switch track which, as appellee and the operator of the automobile knew, was not in such general use as was the main track. The night was dark and rainy, and the freight car which stood across the highway was black, and, under the evidence, must have been approximately the same color as the sky; and, when the automobile in which appellee was riding as a guest was passing over the bridge toward the crossing, a person seated in the automobile and looking ahead down the highway would not readily, if at all, have seen the black car against the black clouds. When the freight train was stopped to remain across the highway for at least three minutes, the men in charge of the train knew that automobiles one or two miles away would, if approaching, arrive before the crossing would be cleared; they knew of the rain and the darkness; they knew the color of the car or cars which lay across the highway; they knew the unusual conditions and of course knew the danger. I am not impressed with the argument advanced by the illustration in the principal opinion; that is, the imaginary case of a freight train blocking three or four street crossings when it has stopped to take water. If a railroad company has a water station so located that a freight train when stopped for water will block several street or highway crossings, it has picked a poor location for its water station. Certainly, a railroad company could not so locate its water station, and *Page 554 then successfully plead that it would be impossible to guard all the crossings blocked.
The driver of the automobile was proceeding at the rate of twenty-five miles an hour as he approached the crossing, and was looking ahead. He may have been, and doubtless was, misled by the unusual circumstance of the black freight car which did not reflect the light which would have made an ordinary freight car visible, and may thereby have been led to believe that nothing was in the way. It certainly is not the law that an operator of a motor vehicle on a public highway must always, at his peril, so drive as to discover every unguarded obstruction or excavation in time to stop his car in time to avoid danger; there are some things he has a right to assume.
Whether, under the evidence in this case, the trainmen exercised reasonable or ordinary care in blocking the highway for three minutes without warning travelers on the highway was, in my opinion, a question of fact for the jury; likewise the question as to the proximate cause of appellee's injuries.