I dissent. There is no statute in this state relative to stopping of railroad trains at highway crossings.
The rule applicable to this case is correctly stated in 52 C.J., p. 189, to the effect that a railroad company is liable where it allows its train to remain on the crossing unnecessarily; or for an unreasonable length of time, by reason of which injuries are received by one who attempts, with due care, to cross.
In determining what is an unreasonable length of time for a railroad company to permit a train to block a crossing, the court must take into consideration the facts of the particular case. It might be negligence for a railroad company to block a crossing on a busy thoroughfare in a populous city at eight o'clock in the evening, for some minutes, when it would not be negligence to block a seldom used highway on the desert of Nevada at an early hour on a January morning. 22 R.C.L., p. 989. I think it is going too far to say, under the facts in this case, the defendant was guilty of negligence in permitting its train to remain on the crossing as it did.
In my opinion, the weight of the more recent authority is to the effect that one cannot recover under facts similar to those in this case. Mabray v. Union Pac. Ry. Co. (D.C.) 5 F. Supp. 397; Jones v. Texas P. Ry. Co. (La.App.), 154 So. 768, 769; Plummer v. Gulf, etc. (La.App.), 153 So. 322.
In the last-named case it is pointed out that it is not usual to station flagmen in similar circumstances. If necessary, there would have to be two — one on each side of trains.
However, if defendant was guilty of negligence, the driver of the car in question was guilty of such contributory negligence as precludes recovery. The section where the accident took place was in a sparsely settled section of Nevada. The driver of the automobile lived in that vicinity and knew the situation. He was chargeable with knowledge of the fact that a railroad track is a place of danger. The supreme court of *Page 211 California aptly quoted: "The railroad track of a steam railway must itself be regarded as a sign of danger, and one intending to cross must avail himself of every opportunity to look and listen for approaching trains. What he must do in such a case will depend upon circumstances. If the view of the track is obstructed, he should take greater pains to listen. If, taking those precautions, he would have seen or heard the approaching train, the very fact of injury will raise a presumption that he did not take the required precautions." Bilton v. So. Pac. R. Co., 148 Cal. 443, 83 P. 440, 442.
The driver of the car in question knew of the darkness of the night, the cut leading to the crossing, of the surrounding mountains, the oiled highway, and other circumstances resulting in the accident, except the presence of the train. Knowing of these facts, he was obliged to use greater care.