The court may say that it has not adopted the stop, look and listen doctrine, but the statement is an assertion only as that doctrine is controlling in the opinion of the court in this case.
It is held in the opinion of the court that although the appellee may have had a right at the place where he was killed as a licensee, and although it may be that appellant owed him the duty to signal the approach of the train and to maintain a lookout for persons on the track at that point, yet it is held because appellee's intestate did not stop, look, and listen he was guilty of contributory negligence as a matter of law, and that the question should not have been left to a jury to determine whether the proved negligence of appellant was the proximate cause of the injury, or whether the proved negligence of decedent contributed to the injury.
This case cannot be distinguished from the ordinary public crossing case. A railroad company is required to give signals of the approach of its trains to a public crossing, and is required to maintain a lookout for persons who may be on or about the track at a public crossing. If a railroad company fails to perform these duties, it is guilty of negligence and it has been written many times that a traveler at the crossing will not be deprived of his right to have his case submitted to the jury because the proof shows that he did not stop, look, or listen.
This court has written many times that, in approaching a place where the public is apt to be using the track of a railroad company as licensees, the railroad company owes the duty to signal the approach of its train, and to maintain a lookout for persons who may be on or about the track. The opinion of the court in this case holds that a violation of these duties by the railroad company does not make a case for the jury if the decedent did not stop, look, and listen, or at least that is the effect of the opinion beyond all doubt.
If this court is desirous of abandoning the long established rule that the stop, look, and listen doctrine does not prevail in this state, the opinion should be direct and certain about it and overrule all the opinions holding that the doctrine does not apply in this state. There is no good reason to depart from such opinions by piecemeal. It is a long process and confusing to the courts and lawyers throughout the state. If the court *Page 708 wants to adopt the stop, look, and listen doctrine in this state, it should be done at one stroke without the slow and tedious process of evolution.
Until the court adopts the stop, look, and listen doctrine in this state, I think the correct rule in cases such as this is that where negligence is shown on the part of the railroad company in failing to give signals or to maintain a lookout, and it is shown that the plaintiff is guilty of negligence, no court may say, as a matter of law, that the negligence of one was the proximate cause of the injury, or that the negligence of the other contributed to the injury. Such a state of facts makes a question for the jury.
We have held in no case that I can find that a failure to give an instruction on contributory negligence was not error when the proof established negligence on the part of the plaintiff. If, however, the court may determine as a matter of law that the negligence of the plaintiff contributed to the injury, although negligence is shown on the part of the defendant, it follows as a matter of course that the court may hold, as a matter of law, that the negligence of the defendant was the proximate cause of the injury, although negligence is shown on the part of the plaintiff. The same rule must apply to both.
If negligence on the part of the defendant is established and negligence on the part of the plaintiff is also established, it becomes a question for the jury to determine whether the negligence of the defendant was the proximate cause and resulted in the injury notwithstanding the negligence of the plaintiff. If the jury decides contrary to the weight of the evidence, a new trial may be granted on that ground, and probably that should have been done in this case, but the granting of a new trial because the verdict is not supported by the evidence is altogether a different thing from the giving of a peremptory instruction to find for the defendant because the plaintiff has been guilty of negligence.
The Smith case is the basis of the court's opinion in this case and the opinion in that case was correct on the facts, but the opinion in that case had been perverted from time to time. The person killed in the Smith case was a deaf mute. He could not hear the approach of the train nor the signals given. A lookout was maintained. The failure to hear the signals did not show that the negligence, if any, on the part of the railroad company was the proximate cause of the injury. The *Page 709 giving of the signals would have been no benefit to the deaf mute. It was his duty, because he could not hear, to exercise his other faculties. If the railroad company was negligent, its negligence could not be the proximate cause of the injury because the man who was killed knew nothing of the negligence, and the negligence in no way affected him. That opinion has been so perverted that it appears that the stop, look, and listen doctrine applies to defectives, and does not apply to those in possession of all of their faculties. This court never intended to establish any such rule. It would be an inhuman rule to hold that the unfortunate were held to a more strict accountability than the fortunate. The proper rule in such cases, and all that this court had ever intended to hold, is that the negligence of the railroad company in such cases was not the proximate cause of injury as the performance of its duties by the railroad company would have had no effect one way or the other because the defective would not have known of the performance of the duty.
Having these views of the law in cases such as this, I must respectfully dissent from the opinion of the court.