DISSENTING OPINION. The majority opinion must rest upon the proposition that the negligence of the plaintiff was the sole cause of his injury. He was undoubtedly guilty of both actual and statutory negligence. Had he obeyed the requirement of the law to stop, look, and listen, undoubtedly the injury would not have occurred. Yet if the defendant failed to ring the bell, it, too, was guilty of negligence per se. The majority opinion assumes that it failed to ring its bell, and also that such failure not only was not, but could not have been, a contributing factor in the injury.
In stressing the requirement that verdicts must not be based upon mere conjecture, the Court has drawn upon conjecture to construct a basis for its reasoning. To intimate that since the plaintiff did not see he could not hear, tends to repeal physical laws: to infer the futility of making the statutory signals from the fact of failure to hear the roar of the oncoming train is contrary to our statutory law. When the legislature crystallized the mandate of common prudence into the requirement that travelers before effecting a crossing should stop, look, and listen, it, with perfect consistency, required that whenever the approach of a train gave the traveler reason to stop, it must also give him, by way of warning, something at which to look and something to which to listen. In the considered judgment of the Legislature, such warnings must take the form of lights and bells.
This Court by its opinion has in effect more than intimated that a railroad company may ignore the statutory mandate and conserve wear upon its bells by indulging the assumption that if one can't see the train he won't hear the bell, and if the greater noise of a moving train *Page 314 includes and obscures the lesser tinkle of its bell, such bell is of use only when the train is still. Is it not conjecture to assume that plaintiff was not listening, and listening could not have heard a ringing bell? The noise of a bell is unique, distinctive, and characteristic. The Legislature was not content to leave to travelers the duty of identifying approaching trains by the rumble of their wheels. Nor is it so adequately established as a truism as to attract judicial notice, that one who does not see does not hear. Rather is there support for the truth that one may, by summoning his entire attention to the aid of one of his senses, suspend function of the others. One who looks or reads intently is apt to develop a disturbing insensibility to spoken inquiry, even as one who lends too attentive an ear may borrow responsiveness from vision and leave the listener staring with unseeing eye. Such, indeed, is the etymology and psychology of concentration.
The purpose of the required signals is to attract and arrest attention. It assumes both the possibility and probability of inattention. The majority opinion assumes the fact of inattention and the impossibility of overcoming it. It may be that plaintiff would not have heard the bell had it been rung. But it seems to draw more heavily upon conjecture to say that he would not than that he would.
The testimony is consistent with plaintiff's statement that his car struck the engine or tender of the train. He was following another car at a distance of about two hundred feet. Considering plaintiff's speed (about twenty-five miles per hour), and the length of the train (nearly a quarter of a mile), it is difficult to see how he could have struck the caboose of a train which reached the crossing after the preceding automobile had passed the crossing and interposed itself between such car and that of plaintiff.
It is quite true that although failure to ring the bell or blow the whistle was negligence per se, it is not necessarily *Page 315 a proximately contributing cause of the injury to the plaintiff. The majority opinion correctly states that "it is not within the legitimate province or power of a jury to convert a possibility into something more by the mere force of a verdict." Yet the writer is inclined to doubt whether it is within the legitimate province of this Court to depreciate a reasonable probability into something less by mere judicial fiat.
To say that the failure to ring the bell "disappears" as a substantial factor in the case, is euphemistically to describe as a voluntary withdrawal in the face of overpowering reason a situation where in fact this circumstance is forcibly liquidated by alien assumptions which have been allowed to invade the discussion. It may be that a trial jury, completely aware of its rights and duties, would in this case agree with the views of the majority of this Court. However, the nature of their ultimate verdict is important only to the parties. Our concern is to defend their right to function in the field of proximate cause.