(concurring).
The opinion in this case unquestionably is right if the volume of traffic at a particular crossing is to be eliminated as a factor in determining whether it is extra-hazardous. However, I think it is a highly relevant factor, not to be ignored. Standards of care necessarily depend on what the public thinks — that is, in the form of settled and prevailing attitudes. When a jury is told to decide a case on the basis of what a reasonably prudent man would have done under certain circumstances we presume that its verdict is the measure of what society in general would think. Now, if a railroad crossing should be so congested with traffic that the public in general would expect the railroad company to have a man get off the train and flag the traffic out of the way, then that is the standard of care required of the railroad. After all, the unwritten or judge-made law is supposed to represent the attitudes of society, and the way we determine what society would think of a given fact situation, if there is fair-room for difference of opinion, is to ask a jury.
Lest it be suspected that I sympathize with the ultra-modern Plarper & James-theory of liability without fault, let me hasten to disavow it, and strongly so. However, “fault” must always be determined on. the basis of what the reasonable man, the-composite of society at the time and place, would think and do, and in this case I think-, it was a fair question for the jury to determine whether in the exercise of due care the railroad should have maintained at this thickly traveled crossing some other and more effective warning (for example, a. wig-wag, flasher, or ding-dong signal) of' the approach of its trains.
There is, however, another theory oh-which the opinion can be supported without regard to whether the crossing was extra-hazardous. Although the instructions, enumerated various duties on the part' of the railroad, there was only one respect in which it really could have been negligent, and that was in failing to provide adequate and reasonable warning of the train’s approach. The verdict against the driver’s-personal representative had to rest on one. of two findings, (a) that the railroad was-not negligent in this respect or (b) that the driver was contributorily negligent. Obviously, the verdict in favor of the passengers eliminates (a), from which it follows-that the jury found the railroad negligent, and the driver contributorily negligent. Analyzing the situation further, however, in the absence of any evidence revealing the details of the driver’s conduct, how could, he have been found negligent on any theory except that the jury thought the railroad had in fact provided sufficient warning to-make it his duty to avoid the accident ? And if the warning given by the railroad was sufficient for the driver, why would it not have been sufficient for all other users of the highway, including the passengers? As I see it, there is only one answer to these questions; and since the jury unmistakably-*823indicated its belief that the railroad had done all the things reasonably necessary in ■order to protect the driver it could not logically say the railroad had a different or .greater duty with respect to the passengers.
In a fact situation as narrow as this I do not believe there is any' room for a con•.tributory negligence instruction, but since it was given it afforded the means by which the jury’s true finding was revealed. That finding was that the various signs and signals provided by the railroad were reasonably sufficient to warn the driver, and if they were sufficient as to him they were sufficient for all other users of the.highway, including the passengers.